The post-Roe debacle
US Supreme Court’s Dobbs ruling thrust Guam’s abortion laws into legal scrutiny
Supreme Court of Guam to hear oral arguments on PL 20-134
By Mar-Vic Cagurangan
From the legislature’s session hall to the courtroom, women’s reproductive decisions are at stake. “My body, my choice?” No one listens. Their uteruses are perennially subject to legislation and court rulings.
With deep roots in Catholicism mixed with Western influence, Guam has a complex history of abortion rights that polarizes the island community.
Despite the lack of related medical services, abortion remains legal on Guam. The 37th Guam Legislature's attempt to ban fifth-week pregnancy abortions fizzled out when senators failed to override Gov. Lou Leon Guerrero’s veto of the Guam Heartbeat Act. But the U.S. Supreme Court’s decision in Dobbs v. Jackson Women's Health Organization that reversed Roe v. Wade has muddled Guam’s abortion laws that were struck down by the courts based on the now aborted landmark ruling.
In the Ninth Circuit Court, Guam’s Deputy Attorney General Jordan Pauluhn argued that Roe’s repeal in the Dobbs ruling entirely changed the premise on which the injunction on abortion restrictions was based.
The Feb. 17 arguments before the appellate judges were anchored on Federal Judge Frances Tydingco-Gatewood’s September 2021 ruling, which struck down Guam law’s mandate that requires the patient and doctor to be both physically present in a clinic for medicated abortion that involves the use of abortive pills. Women seeking abortion with remote guidance from off-shore physicians must be permitted on Guam, the judge said.
But Pauluhn argued in defense of the court-rejected law, telling the appeals court judges, “There is no real barrier to following the in-person requirement.”
Representing the plaintiffs, Alexa Kolbi-Molinas, attorney for the American Civil Liberties Union, described the in-person provision as “irrational,” arguing that it ran counter to statutes that facilitate abortion in general.
Tydingco-Gatewood ruled in favor of two OB-GYNs, Shandhini Raidoo and Bliss Kaneshiro, who sued Guam in 2021 on behalf of their patients, and who, after the retirement of Guam’s only abortion doctor in 2018, had no choice but to turn to physicians off-island.
“Here, there is undisputed evidence of the burdens the law imposes on a woman seeking abortion in Guam,” Tydingco-Gatewood stated in a decision that invoked Roe v. Wade, which governed the nation’s reproductive health policy at the time the ruling was issued.
There are no records of abortions being performed on Guam since the retirement of Dr. William Freedman of the Women's Clinic in 2018. The only option left for women who want to end their pregnancies is to get the procedure off-island. But for those who cannot afford to shoulder the travel cost, this is not even an option. As a result, they are compelled to carry on with unwanted pregnancies.
The Roe reversal has also resurrected a “Zombie” local statute, triggering court actions that foreshadow yet more legal theatrics.
On Feb. 18, the Supreme Court of Guam 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 of Guam said in a decision that called for amicus briefs and set the stage for a new round of debates on abortion.
The Supreme Court of Guam is set to hear oral arguments on April 25 at 10 a.m. in the Monessa G. Lujan Appellate Courtroom
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 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.
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 with Roe’s reversal, “there is no longer a legal basis to support” a previous ruling. In 1990, the federal court declared P.L. 20-134 unconstitutional— shortly after its enactment— holding that it breached Roe.
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.
“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, more questions are likely to pop up. Will it have a retroactive effect? If so, how many women and doctors will be prosecuted?