HAGÅTÑA (The Guam Daily Post) — Legal counsel for the governor has chosen not to submit a response to the writ of certiorari petition filed by the attorney general regarding last year’s Supreme Court of Guam decision on the island’s old abortion ban, unless requested by the Supreme Court of the United States.
Leslie Travis, legal counsel for the governor’s office, filed a waiver Feb. 23 indicating that she did not intend to respond. She stated then that she was not a member of the SCOTUS bar, but should the court request a response, it would be filed by a bar member.
Krystal Paco-San Agustin, the governor’s spokesperson, has confirmed that both of the governor’s lawyers – Travis and Jeffrey Moots – are now members of the SCOTUS bar.
As stated, SCOTUS may still request a response to the AG’s petition. According to the SCOTUS rules, an opposition brief to a petition for writ of certiorari is not mandatory except in capital cases or when requested by the court.
Before filing the waiver, however, Travis did request an extension to file a response, which was initially due March 4. The court granted the request, extending the reply date to April 3, but then Travis filed her waiver the same day the extension was granted, on Feb. 23.
In the extension request, Travis stated good cause existed for the extension because her office was guiding the governor’s office on several matters and the AG’s petition for certiorari raised issues that were not brought up in the underlying Supreme Court of Guam case.
As The Guam Daily Post reported, the question the AG presented to SCOTUS was whether the Guam Supreme Court’s “advisory opinion” constitutes a permissible exercise of “judicial authority” vested in that court by Congress.
“(The Guam Legislature) passed a law allowing the Supreme Court of Guam to issue – in response to a request from Guam’s governor or Legislature – a declaratory judgment ‘as to the interpretation of any law, federal or local,’ on ‘a matter of great public interest,’” the AG stated in the petition for writ of certiorari.
“One of our judicial system’s few never-disputed tenets has been that the ‘judicial authority’ – the only power Congress has given to the Supreme Court of Guam – does not include authority to issue advisory opinions. In Guam, that’s no longer true: The Guam Supreme Court’s exercise of ‘judicial authority’ in this case produced a quintessential advisory opinion,” the petition stated.
The AG is assisted by the conservative law firm Consovoy McCarthy PLLC.
The Supreme Court of Guam determined last year that Guam’s abortion ban, Public Law 20-134, was repealed by implication through subsequent local laws allowing for abortion. The ban “no longer possesses any force or effect in Guam,” the Supreme Court of Guam stated.
The decision came about through a petition from Gov. Lou Leon Guerrero, an abortion rights advocate, who asked the local high court to determine the ban’s viability and enforceability.
P.L. 20-134 would have prohibited abortions at all stages of pregnancy, with limited exceptions related to medical intervention and ectopic pregnancies. Victims of rape and incest, for example, would not be exempt under the ban unless they meet those limited exceptions.
Attorney General Douglas Moylan wanted to open up enforcement of the abortion ban following the 2022 SCOTUS decision in Dobbs v. Jackson Women’s Health Organization, which overturned prior case law and ruled that the Constitution does not guarantee a right to abortion in the U.S.
The Guam ban has been under an injunction for more than three decades, as it was found unconstitutional shortly after enactment due to case law at the time.
Moylan attempted to dissolve the injunction through the District Court of Guam but faced a setback when the court denied his motion for failing to address certain arguments. He then appealed to the 9th U.S. Circuit Court of Appeals with assistance from Consovoy McCarthy lawyers.
However, the Supreme Court of Guam issued its decision as the 9th Circuit appeal was ongoing. The case at the 9th Circuit is now stayed pending resolution of the AG’s petition to SCOTUS.
Abortion rights protesters demonstrate in the gallery of the legislative session hall Dec. 29, 2022, at the Guam Congress Building in Hagåtña.
