LAS VEGAS (CN) - An attorney for Planned Parenthood argued to Nevada's high court Thursday that a 1985 law restricting abortion for minors couldn't be revived, as a judge declared it unconstitutional decades ago.
In the wake of 2022's U.S. Supreme Court decision in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade, a federal judge vacated a longstanding injunction stopping the 40-year-old bill's enactment. A Clark County judge in September ruled the law would stand.
Attorney Valentina De Fex, representing Planned Parenthood Federation of America, also argued that Senate Bill 510 - passed in 1985, never enforced and declared unconstitutional in 1991 - is vague. It requires parental notification or a judicial bypass process for a minor to receive an abortion, but has no firm rules on that judicial process.
"Its text lacks guardrails," she said, questioning how law enforcement would determine whether a doctor had obeyed the law. "It leaves doctors with the question - 'Did I do enough or should I have done more?'"
De Fex asked the Supreme Court to remand the issue back to the lower court and stop its enforcement.
The high court made no decision Thursday, instead taking the issue under submission.
De Fex pointed out that a judge in 1991 declared the law unconstitutional. That made it null and void, meaning it can never be enacted, despite Dobbs. To become law, the Legislature must pass it again.
"A declaration of unconstitutionality is final," she added. "This is only one of the grounds the court needs to agree with."
De Fex also pointed to the judicial bypass part of the law. A minor seeking an abortion needs parental approval, or they can obtain a judge's order. However, the law gives little insight into that judicial process. Doctors need to make a reasonable effort to ensure the law is met and could face criminal penalties if they don't.
The definition of "reasonable effort" is unclear, which would lead to arbitrary enforcement, De Fex said. The law states nothing about whether a doctor must examine records or ensure the minor started the judicial bypass process.
"These are the glaring safeguards that are missing," De Fex added.
Attorney Heidi Stern, with the Nevada Attorney General's Office, argued that doctors face no threat of prosecution from her office. However, she conceded that the attorney general has no control over county district attorneys.
Stern pushed back on De Fex's vagueness claims. Courts can assign legal definitions to regular, everyday words, she said, what's key is that doctors act knowingly.
A handful of justices questioned Stern's arguments.
Justice Patricia Lee pointed to the law's certified mail requirement. She questioned whether sending the mail to a parent was enough or whether the sender had to ensure it arrived. Because a doctor could face criminal charges under the law, Lee said compliance should be clear.
Justices also asked about time requirements under the law. Senate Bill 510 states that a judge must conduct a hearing within three days of a petition being filed for judicial bypass to determine if the minor is mature and able to give informed consent, or that an abortion without parental notification is in their best interest. A default decision in favor of the minor, called a pocket approval, can occur if the judge doesn't rule in time.
Chief Justice Douglas Herndon said the court was discussing how much time needed to pass to trigger aspects of the law.
"And somehow they're supposed to figure all this out?" he said of pregnant minors.
Justice Elissa Cadish noted that doctors are obligated to obey the law, questioning how they could know when enough time has passed for a pocket approval.
Stern said doctors can ask, leading Cadish to question whether that amount of flexibility weighed in favor of her argument.
"That tells you're the statute is vague," De Fex said when given a chance to rebut. "It demands clarity. It demands guardrails."
Source: Courthouse News Service
