LAS VEGAS (CN) - Planned Parenthood Mar Monte argued Monday in state court that a Nevada law requiring minors to get parental approval or a judge's order to obtain an abortion was vague, unconstitutional and should be put on pause.

The law, unenforced since the Legislature passed it in 1985, gained new life with the U.S. Supreme Court's 2023 Dobbs v. Jackson Women's Health Organization decision, which overturned Roe v. Wade and a federal right to an abortion. Called Senate Bill 510, the law is now enforceable.

That's one reason why attorney Bradley Schrager, representing Planned Parenthood, said Clark County Eighth Judicial District Judge Erika Mendoza should issue a preliminary injunction freezing the law. His clients, who also include an unnamed doctor, face the threat of prosecution under the statute.

"No one has said to us, 'You're off the hook. Don't worry about it,'" Schrager said. "I don't think there's any way around that."

The judge made no decision Monday about the law, but said she'd issue an order soon.

The imminent threat of prosecution led Mendoza to question the legal line authorities must cross to trigger it. She questioned whether two Nevada district attorneys commenting on Planned Parenthood met the threshold.

"There has to be something more than, 'It's on the books,'" the judge said.

Schrager questioned if someone must wait for enforcement to occur before a threat is realized. He also called the law vague, as it doesn't provide enough detail for a doctor to follow.

The Nevada law requires the parent or guardian of an unmarried or unemancipated minor to receive notification before the minor can have an abortion. Alternatively, the minor can get an abortion if they navigate what plaintiffs have called "a hazy, inadequate judicial bypass process."

Schrager asked how a doctor would verify a patient was single or emancipated, or what action a doctor could take to contact a parent that would meet the "reasonable effort" mark. He also questioned how a doctor would verify the patient's last known address.

"Are you taking the word of the patient?" he added. "Can you do that?"

Criminal law must be clear, Schrager said, and the law offers no guidance.

Planned Parenthood also argued the 1985 law is unconstitutional, because lawmakers passed it after the U.S. Supreme Court's Roe decision. The law remained defunct since its creation.

"It was clearly unconstitutional from the moment of its inception," Schrager said.

Chief Deputy Solicitor General Jessica Whelan said Planned Parenthood wanted to muddy the waters by feigning confusion over the law. She argued that no criminal law has the specificity it's requesting.

Whelan pointed to burglary as an example, noting that the law doesn't state how a criminal must enter a home or what property they must take.  

"I feel like these are the types of arguments that are being made here," she said.

If a doctor has doubts about a patient's age or marital status, they can delve deeper, she argued. However, the presence of a spouse or wedding ring could lead a doctor to determine the patient had met the law's requirements.

Whelan also pushed back on the argument that Planned Parenthood faces any criminal liability, questioning if it has standing to be a plaintiff in the case. The law focuses on doctors. Without the possibility of an injury, she argued, it can't be a party in the suit.

The deputy solicitor general also disputed Schrager's characterization of the law's enforcement. She agreed that the state Attorney General's Office could take over a local jurisdiction's prosecution under the law. However, it doesn't state that office must step in - raising a question about the imminent threat the law supposedly poses.

Schrager countered that the violation of someone's rights qualified as irreparable harm.

"Slipping away through all of this are the rights of the individuals," he added.

The issue already has been before a federal judge in Nevada, who vacated the longstanding injunction that stopped Senate Bill 510's enactment. The lower court ruled that Dobbs removed any federal due process right to abortion.

The Ninth Circuit opted against a stay pending appeal that would have maintained the status quo, leading the plaintiff's to file suit in state court.

Source: Courthouse News Service