By Aurora Kohn
In the wake of the U.S. Supreme Court’s recent decision on Dobbs v. Jackson Women's Health Organization, Vice Speaker Tina Muna-Barnes and Sen. Mary Torres have called on the Office of the Attorney General to revisit an old law that sought a total ban on abortion on Guam and determine whether the reversal of Roe v. Wade might have a retroactive effect.
In 1990, the District Court of Guam declared Public Law 20-134 unconstitutional, and therefore void. The decision was based on a lawsuit filed by the Guam Society of Obstetricians against then-Gov. Joseph Ada.
The court ordered Ada and the Guam Election Commission to be permanently restrained from “operating, administering, enforcing or executing” any of the provisions of the challenged law.
P.L. 20-134 declared that “the life of every human being begins at conception, and that unborn children have protectable interests in life, health, and well-being.” As such, any abortion performed was unlawful unless it consisted of " a medical intervention in ectopic pregnancy” or two physicians determined that abortion was necessary to avoid endangering the life or impairing the health of the mother.
The law also appropriated funds for Guam’s Commission on Election to conduct a referendum asking voters to decide whether they approved of the abortion ban.
Despite the provision for a referendum, the law was immediately implemented, prompting Guam’s Society of Obstetricians to sue the government on their behalf and that of their women patients.
In its decision, the federal court cited the 1968 amendments to Guam’s Organic Act, adding extending to Guam the application of the 14th amendment, which prohibits states from enforcing any laws that “abridge the immunities or privileges” of American citizens.
Ada argued that the 1968 amendments introduced to Organic Act could not have contemplated the application of Roe v. Wade, arguing that the 1973 ruling had not been decided at the time the amendments were introduced.
He reasoned that there was no “legislative intent” or any “signal” on the part of U.S. Congress to apply Roe v. Wade to Guam.
The court rejected Ada’s arguments, pointing out that the purpose of extending the application of the constitutional “due process” and “equal protection” to Guam was to ensure that territorial citizens were afforded the ability to exercise these rights.
It held that since Roe v. Wade was an interpretation of constitutional provisions that apply to Guam, the decision applies with “equal force and effect” to the territory.
The federal court also held that the state had no “compelling interest” in the first trimester of pregnancy and therefore may not restrict a woman’s right to seek an abortion at that stage.
In approximately the second trimester of pregnancy, the only applicable state interest was protecting the mother’s health. Only for that purpose can the state regulate a woman’s right to seek an abortion.
After “viability of the fetus,” the state may choose to regulate the right to abortion “except where it is necessary for the preservation of the life or health of the mother,” the court said.
Due to the failure of P.L. 20-134 to make these distinctions, the court determined that the statute violated the due process clause of the 14th amendment.
To this date, abortion remains legal on Guam. While there is no resident doctor performing abortion procedures, abortive pills are locally available to women seeking to terminate their pregnancies.