ÃÛèÖÖ±²¥

And the clock is running.

The research comes on the heels of the state Supreme Court ruling Tuesday that a 2022 law allowing abortion up to 15 weeks does not supersede the 1864 statute that bans the procedure except to save the life of the mother. That was the only issue before the justices.

But Planned Parenthood’s original challenge to the law, dating back to 1972, included a series of legal theories about why the old statute is unconstitutional.

It never became necessary to pursue those claims once the U.S. Supreme Court ruled in 1973’s Roe vs. Wade that women throughout the country had a constitutional right to terminate a pregnancy. But the nation’s high court reversed course in 2022 and overturned Roe, leading to Tuesday’s decision in ÃÛèÖÖ±²¥.

That doesn’t end the matter, however.

The justices here, in ruling Tuesday that the 1864 law trumps the newer statute, recognized that those other issues were never resolved. They gave Planned Parenthood 14 days “to determine whether to pursue remaining issues raised in the (1972) trial court.’’

That provides a window for the challengers to ask a judge to stay, or block, enforcement of the territorial-era ban while those never-resolved claims are litigated.

Planned Parenthood attorney Andrew Gaona acknowledged that could be an uphill battle.

He said to get a judge to once again delay allowing the 1864 law to be enforced would require showing “some likelihood of success on the merits.’’ That, Gaona said, could be difficult.

“Any of these claims would be novel constitutional theories,’’ he said, saying it would be “asking a trial court judge to really go out on a limb to enter a preliminary injunction or some kind of extended stay.’’

Still, there are theories to be pursued.

One the justices in Tuesday’s ruling acknowledged is unresolved is the claim that the 1864 statute violates the due process rights of physicians.

That was an argument also advanced in this latest round of litigation by Democratic Pima County Attorney Laura Conover. She argued that’s because “it does not provide them clarity on how they should conform their conduct to the law in life- and health-threatening situations.’’

Justice John Lopez, who wrote Tuesday’s ruling, said he and his colleagues did not address that question because it was beyond the specific issue the justices were being asked to decide: Whether the 2022 law overrides the 1864 statute.

More to the point, Lopez said the issue was never fully developed and was never ruled on by a trial judge or the appellate court.

That isn’t the only outstanding legal question. When the challenge to the 1864 law was first filed in 1972 — before Roe v. Wade — the attorneys for Planned Parenthood advanced several other theories.

One relates to the ÃÛèÖÖ±²¥ Constitution and its specific right to privacy. It says that “no person shall be disturbed in his private affairs … without authority of law.’’

The same argument about that privacy right has been advanced more recently by current Attorney General Kris Mayes, a Democrat. But in its 1973 decision on the original Planned Parenthood lawsuit, the state Court of Appeals wasn’t buying it.

The appellate judges who heard the case at that time acknowledged that the U.S. Supreme Court had agreed there was an inherent right of privacy. That came in a case known as Griswold, where the justices in 1965 voided a Connecticut law that criminalized the use of birth control.

But the ÃÛèÖÖ±²¥ Court of Appeals rejected the comparison.

“Although there is a private realm of family life in which the court may not enter, one cannot seriously argue that parents are thereby free to abuse and neglect their child free of state control,’’ the court concluded. The judges said the ÃÛèÖÖ±²¥ Legislature determined that a fetus is “life.’’

“The difference between this case and Griswold is clearly apparent, for here there is an embryo or fetus protecting itself,’’ the judges concluded. “There, the only lives were those of two competent adults.’’

The court called the comparison to overturning a ban on contraceptives invalid.

“Exercise of the right to abortion on request is not essential to an effective exercise of the right not to bear a child, if a child for whatever reason is not wanted,’’ the judges said.

Still, that claim could now be resurrected.

There are other arguments in that earlier case that the ÃÛèÖÖ±²¥ Supreme Court, in Tuesday’s ruling, never reached, which could provide a renewed basis to challenge the 1864 law.

One is that the law banning abortion constitutes the establishment of a religion because the ban is based on biblical teachings. The appellate judges in 1973 weren’t buying that, saying that just because a law may have some basis in a religious teaching does not make it improper.

Another theory revolves around discrimination against the poor. That is based on the argument that women with sufficient means are free to travel to other states where abortion is legal, an ability denied to those without such resources.

Outstanding legal issues aside, there’s another question: Exactly how long do Planned Parenthood and the other parties in the case seeking to void the 1864 law have to seek judicial intervention before prosecutors are free to start enforcing it?

On paper, the state justices delayed their ruling for 14 calendar days to allow the parties to raise those other issues. That would take us to April 22.

But there’s also the fact that the ÃÛèÖÖ±²¥ Medical Association and Dr. Paul Isaacson, who performs abortions, filed their own lawsuit in 2022 against the state arguing that the new law — allowing abortions up to 15 weeks of pregnancy — takes precedence over the 1864 statute.

Republican Mark Brnovich, who was ÃÛèÖÖ±²¥â€™s attorney general at the time, sought to put that case on ice. So he agreed that even if the state won its case against Planned Parenthood, he would not begin enforcing the territorial-era law for at least 45 days after that ruling became effective.

The deal benefited Brnovich because it meant his attorneys would not have to simultaneously defend two separate lawsuits on the same issue. And, potentially more significant, it precluded the possibility of two conflicting rulings on the issue.

Mayes spokesman Richie Taylor said she interprets that to mean no charges can be brought for at least 60 days as the Supreme Court delayed its order for 14 days, and the 45-day clock starts running only once the order becomes effective.

That is getting a fight from Jake Warner. He is the senior attorney for anti-abortion group Alliance Defending Freedom, which stepped in after Mayes took office in 2023 and decided the state should no longer defend the 1864 law.

Warner contends that deal by Brnovich is not binding on the state’s 15 county attorneys since they are not a party to that other lawsuit.

Taylor, in Mayes’ office, said that ignores a key point. He said it was not Brnovich who is a defendant in that case but the state of ÃÛèÖÖ±²¥.

“The stipulation (not to enforce) is on behalf of the state and remains on behalf of the state,’’ Taylor said.

And there’s something else.

He pointed out that all criminal charges, regardless of whoever files them, are brought on behalf of the state of ÃÛèÖÖ±²¥. They are not filed as a specific county against a defendant.

“We’re confident the 60-day period applies to everyone,’’ he said. “And anyone who tries to bring a case before that certainly will be met with a legal challenge from us.’’

In either case, Democratic Gov. Katie Hobbs and Mayes claim nobody will be prosecuted because the governor stripped county attorneys of their powers in this area and the attorney general has said she will not prosecute anyone under abortion laws. The 1864 law calls for prison terms for doctors or others who provide abortions; under current state law, women cannot be prosecuted for obtaining abortions.