Guam Supreme Court sets the stage for a new showdown over abortion ban
Updated: Feb 19
Justices say resolving P.L. 20-134 likely to be a long haul
By Mar-Vic Cagurangan The Supreme Court of Guam has cued opposing parties to flex their legal muscles and prepare their arguments on a three-decade-old law banning abortion on Guam, which is ostensibly stuck in legal limbo.
Responding to Gov. Lou Leon Guerrero’s request for declaratory judgment filed on Jan, 23, the Supreme Court has invited interested parties to pitch into the legal discussions on P.L. 20-134— enacted in 1990— which established criminal penalties for women who obtain abortions and medical professionals who perform the procedure.
“Guam residents, healthcare providers, and law enforcement agencies would suffer from a lack of clarity regarding their rights and obligations. At worst, a resident of Guam could be held liable for conduct ultimately declared legal,” the Supreme Court said in Friday’s decision, calling for amicus briefs on the case. The discussions will center on the enforceability of the law based on legislative action, but the justices declined to tackle the question of whether P.L. 20-134 is “void forever” or open for revival. The Supreme Court noted that this question is pending before the federal court.
The courts are now the new battleground for the raging war over abortion on island following the defeat of the Guam Heartbeat Act in the 37th Guam Legislature.
The Supreme Court has agreed to take two of the three questions posed by the governor in her request for declaratory relief:
· Whether the Organic Act of Guam, as it existed in 1990, authorized the Guam legislature to pass an unconstitutional law, or the Guam legislature acted beyond its power in passing Public Law 20-134; and
·To the extent P.L. 20-134 is not void or otherwise unenforceable, has it been repealed by implication through subsequent changes in Guam law?
“Whether the Guam legislature violated the Organic Act in passing an unconstitutional law is a matter of considerable importance, as is whether the legislature impliedly repealed P.L. 20-134 through several subsequent enactments,” the Supreme Court said in a decision released Friday.
While the request for declaratory judgment is pending before the Supreme Court, Attorney General Douglas Moylan took a separate legal action in the District Court of Guam.
Moylan petitioned the federal court on Feb. 3 to lift the permanent injunction on P.L 20-134, arguing that “there is no longer a legal basis to support” the ruling.
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Moylan argued that Roe v. Wade, which was the basis for the permanent injunction on P.L. 20-134, has since been overruled.
The Supreme Court said Moylan’s petition in the federal court will deal with the governor’s first question, which the justices declined to take: “Is P.L. 20-134 void forever, such that it cannot be revived following the reversal of Roe v. Wade?”
“In ruling on the attorney general’s motion, the District Court of Guam will provide an answer to this question,” the Supreme Court said, pointing out that Moylan’s motion was made under the federal rule of civil procedure.
“To dissolve the injunction, the district court would have to conclude the underlying law supporting the injunction changed and/or injunction itself is ‘no longer equitable,’” the court said.
In 1990, the federal court declared P.L. 20-134 unconstitutional— shortly after its enactment— holding that it breached Roe v. Wade. Last year, the U.S. Supreme Court reversed the landmark doctrine, hence Moylan’s argument that the 1990 injunction must be vacated.
“If the District Court of Guam dissolves the injunction, then it cannot be the case that P.L. 20-134 was void forever by virtue of being unconstitutional when passed, and the governor’s question would be answered,” the Supreme Court said.
“If the court declines to dissolve the injunction, the status quo would be unchanged, and declaratory relief from this court would be unnecessary,” it added.
The justices, however, acknowledged that untangling the knots in P.L. 20-134 will likely be a long haul.
“The litigation surrounding P.L. 20-134 is unlikely to end at the District Court. Rather, an appeal by the losing side will almost assuredly follow. During that time, there will be great uncertainty in Guam about the status of P.L. 20-134 and about the legality of abortion,” the court said.
“Assuming the federal courts eventually dissolve the injunction on federal constitutional grounds, this matter would then be litigated in Guam courts on matters of local law,” the decision read.
The U.S. Supreme Court, in reversing Roe v. Wade, gives individual states and territories the power to set their own abortion laws.
Abortion remains legal on Guam. The 37th Guam Legislature's attempt to ban fifth-week pregnancy abortions fizzled out when senators failed to override the governor's veto of the Guam Heartbeat Act.
Timelines The governor’s brief must be served and filed by March 10. Any party supporting the Governor or supporting neither the Governor nor the Respondents shall serve and file their brief by March 17. The attorney general shall serve and file his brief by March 24. Any party supporting the Attorney General shall serve and file their brief by March 31. The governor may serve and file a reply brief by April 5. The court schedules this matter for oral argument on April 25, at 10 a.m. in the Monessa G. Lujan Appellate Courtroom before the panel of Chief Justice Robert J. Torres, Associate Justice F. Phillip Carbullido, and Justice Pro Tempore John C. Manglona. A status conference shall be held on April 10 at 10 a.m. in the Monessa G. Lujan Appellate