HAGÅTÑA (The Guam Daily Post) — The Office of the Attorney General and law firm Consovoy McCarthy PLLC have engaged in a contract worth up to $175,000 for legal consulting services and assistance in the 9th U.S. Circuit Court of Appeals case over Guam’s inert abortion ban.
Attorney General Douglas Moylan is attempting to revive the ban, and it isn’t surprising that he had enlisted help from Consovoy McCarthy. The law firm has been utilized in other jurisdictions to defend state restrictions to abortion access.
The agreement between OAG and Consovoy McCarthy states that the firm is to be paid an hourly rate of $595 for actual time devoted to performing services, up to $175,000.
Should the total amount at the hourly rate exceed $175,000, the firm “shall continue providing services until judgement is issued” in the 9th Circuit appeal, according to the agreement.
The OAG also agreed to reimburse Consovoy McCarthy for “actual, necessary and reasonable” out-of-pocket disbursements and expenses, such as consultants, expert witnesses and mediators, but anything above $500 would need to be preapproved. The OAG would also preapprove the hiring of any expert witnesses. Overhead costs generally won’t be reimbursed, unless approved by the OAG.
Transportation, excluding first-class and business class airfare, parking, lodging and meals associated with interstate travel approved in advance by the OAG will be reimbursed.
These documents were provided by the OAG after a Sunshine Act request. Billings from Consovoy McCarthy were not requested by The Guam Daily Post.
Legal authority
The OAG cited the fiscal 2023 budget law as the legal authority for its agreement. The law allows the OAG to use up to 5% of its appropriations this fiscal year to procure consultants, experts and expert witnesses on a sole-source basis. Consovoy McCarthy is referred to as a “legal consultant” in the agreement.
According to contract abstracts provided to the Post along with full agreement, the contract with Consovoy McCarthy began on May 1 and will end by Sept. 30, the end of the fiscal year. That should also mark the end of the procurement authority given to the OAG by the current budget law.
But the 9th Circuit appeal is ongoing. All appellees in the case were given an extended deadline of up to Oct. 27 to file an answer to the OAG’s opening brief filed on Aug. 28.
Moreover, the same authority allowing the OAG to utilize a portion of its funding for the sole-source procurement of consultants, experts and expert witnesses is present in the fiscal 2024 budget bill, although Gov. Lou Leon Guerrero has not yet signed the measure into law.
The Post has asked the attorney general if the contract term with Consovoy McCarthy will be extended, and is awaiting a response.
Decades old law
Guam’s 30-year-old abortion ban was held unconstitutional shortly after enactment and placed under a permanent injunction. At the time of the injunction, abortion was considered a constitutional right.
That changed in June last year with the U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which reversed course on half a decade of case law regarding abortion rights in the United States. Now, lawmakers in the U.S. have greater latitude to regulate abortion, including the implementation of bans.
With the Dobbs decision in tow, Moylan had committed to reviving Guam’s abortion ban, which was never explicitly repealed. He reasoned that laws passed by the Guam Legislature either needed to be enforced by the AG, or challenged in court.
Public Law 20-134, the Guam ban, will prohibit abortions at all stages of pregnancy with limited exceptions related to medical intervention and ectopic pregnancies. Victims of rape and incest, for example, are not exempt from the ban unless they meet those limited exceptions. The ban also contains a referendum provision, allowing voters to determine if the ban should stay, but the election date has long passed.
Moylan first moved to vacate the injunction on the ban at the District Court of Guam. However, the federal court denied his motion in March, stating that the attorney general did not respond to certain issues raised by an opposing party in the case. That led to the appeal at the 9th Circuit.
Gilbert Dickey and Tyler Green, whose application for admission was noted as forthcoming, are the lawyers from Consovoy McCarthy who submitted the AG’s opening brief in the appeal on Aug. 28.
Students from Santa Barbara Catholic School take part in an anti-abortion demonstration Jan. 20, in Hagåtña.
