HAGÅTÑA (The Guam Daily Post) — The 9th U.S. Circuit Court of Appeals has vacated the preliminary injunction placed on Guam’s “in-person” requirements for people seeking an abortion.
Through an opinion released Tuesday, issued by Judge Kenneth Lee, the 9th Circuit stated that the U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization made it clear that the Constitution doesn’t guarantee a right to abortion.
The opinion added that regulation of abortion now lies with the people’s representatives and the court plays only a minor role in applying a highly differential rational basis review in assessing the constitutionality of an abortion-related law.
“Under this new legal landscape, we vacate the District Court’s preliminary injunction against Guam’s in-person informed-consent law,” the opinion stated.
The preliminary injunction prevented the government of Guam from enforcing “in-person” consultation mandates, which require that a person be provided certain information in person when seeking an abortion.
The American Civil Liberties Union, which is representing plaintiffs in the underlying case behind the 9th Circuit decision, stated in a news release that the ruling won’t take effect immediately.
The injunction was ordered by the District Court of Guam, which was a result of the lawsuit filed by Dr. Shandhini Raidoo and Dr. Bliss Kaneshiro, two Hawaii-based doctors with licenses to practice on Guam. The Office of the Attorney General appealed the order to the 9th Circuit.
Abortion is legal on Guam but there is no provider physically present on the island.
The doctors wanted to provide telemedicine abortion services to patients on Guam and challenged the in-person consultation law in 2021 with assistance from the ACLU. The preliminary injunction allowed those services to take place pending resolution of the case.
‘Irrational’ restriction
In a release following the 9th Circuit opinion, the ACLU stated that the decision allows the government of Guam to enforce “a medically unnecessary and irrational abortion restriction” that forces patients to receive certain information before they can receive medication for an abortion.
“The evidence shows this requirement looks nothing like ‘informed consent’ and provides no health benefit for people in Guam,” Vanessa Williams, a local attorney and co-counsel in the case, stated in the ACLU release.
“A person’s health should guide important medical decisions throughout pregnancy, not politics. We’ll continue fighting with everything in our power to ensure our family members, neighbors, and everyone in Guam can get the care they need free from government intrusion,” she added.
Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project, stated the ACLU was deeply disappointed that the court is “permitting medically unnecessary government mandates” to be enforced again.
“Today’s decision imposes unnecessary obstacles on people seeking abortion in Guam, but, make no mistake, abortion remains legal in Guam, and we will continue to do everything in our power to make sure it stays both legal and accessible,” Kolbi-Molinas stated.
SCOTUS decision
At the time the District Court ordered the preliminary injunction abortion was a constitutional right in the U.S. under the precedent established by prior U.S. Supreme Court rulings.
But in June 2022, the nation’s high court overturned those decisions in Dobbs, allowing states and other jurisdictions greater latitude to regulate abortion, including the implementation of outright bans.
The 9th Circuit stated that Guam’s in-person requirement doesn’t violate the Due Process Clause because it furthers Guam’s “legitimate governmental interest in preservation of potential life, protection of maternal health, and promotion of the integrity of the medical profession.”
The court rejected the argument that Guam’s requirement undermined informed consent.
“The panel held that the requirement does not undermine informed consent because it does not mandate that a nonmedical professional provide the in-person medical disclosures, nor does it prevent the treating telemedicine doctor from providing medical information to the patient; it merely requires that patients receive certain information in person before receiving an abortion,” the opinion summary stated.
The 9th Circuit also rejected the argument that the in-person requirement violates equal protection rights because it irrationally treats physicians providing abortion services differently than similarly situated telemedicine providers.
“Applying rational basis review, the panel held that Guam can require an in-person consultation for abortions because, unlike other medical procedures, abortion implicates fetal life in addition to the patient’s health, and the in-person requirement bears a reasonable relationship to the legitimate governmental interest of safeguarding fetal life,” the 9th Circuit opinion summary stated.
Guam abortion ban
The 9th Circuit decision comes as separate court cases remain ongoing over Guam’s inert abortion ban.
Because the ban was enacted around 30 years ago, when abortion still was considered a right, it was held unconstitutional and placed under a permanent injunction.
Attorney General Douglas Moylan wants to revive the ban in light of the Dobbs decision. He faced a setback at the District Court, which ruled against him for failing to address certain arguments raised in the case, but he’s appealed the matter to the 9th Circuit.
The Supreme Court of Guam is addressing its own case on the ban, which revolves around whether the Guam Legislature had the authority to pass it in the first place given certain restrictions in the Organic Act of Guam, the federal law that serves as the supreme law on Guam.
Students from Santa Barbara Catholic School take part in an anti-abortion demonstration Jan. 20, 2023, in Hagåtña.
