HAGÅTÑA (The Guam Daily Post) — After about two months of delay, the Supreme Court of Guam is set to hear oral arguments Tuesday regarding the validity and enforceability of Guam’s decades-old abortion ban, Public Law 20-134.
Arguments were scheduled to take place May 24, but Typhoon Mawar would end up battering the island at that time, disrupting not just various government services, but the lives of Guam’s residents in general.
The Guam Supreme Court case began in late January, when Gov. Lou Leon Guerrero, a staunch supporter of abortion access as a matter of reproductive health, filed a petition for declaratory judgment regarding the validity and enforceability of P.L. 20-134.
When the local abortion ban was enacted about 30 years ago, abortion was considered a constitutional right in the United States, and the ban was swiftly declared unconstitutional and placed under a permanent injunction, or a stay barring enforcement.
But the ban was never outright repealed, and decades after it had been left inert, the U.S. Supreme Court would overturn precedent protecting abortion as a right, granting states and other jurisdictions greater latitude over how to regulate the practice, including bans.
2 courts
With the nation’s high court reversing direction, Attorney General Douglas Moylan, at the onset of his electoral victory in late 2022, promised to seek to dissolve the injunction placed on the local abortion ban.
The AG ultimately filed a motion to vacate the injunction in February at the District Court of Guam, and with the governor filing her petition the month prior at the Superior Court of Guam, two different court systems were poised to determine the fate of the island’s abortion ban.
The governor initially submitted three questions for the Guam Supreme Court to answer, but the court decided to only address two – whether the Guam Legislature had the authority to pass the abortion ban, and if the ban had been repealed by implication through subsequent laws.
The remaining question, whether P.L. 20-134 is void forever, was left to the District Court to decide.
The District Court would hand its decision first, denying Moylan on March 24, stating that the AG did not respond to issues raised by plaintiffs in that case. The Office of the Attorney General appealed that decision to the 9th U.S. Circuit Court of Appeals, where the OAG has until Aug. 28 to file an opening brief.
The local case continued in the meantime.
Amicus briefs
Having recognized the importance of the abortion issue on the island, the Guam Supreme Court had invited interested parties to submit amicus briefs, and invited the Legislature to participate as a respondent in the case as well.
The Legislature; lawyers representing Dr. William Freeman, who was the last abortion provider on Guam, and other interested parties; former senator and current talk show host Robert Klitzkie; and blogger Timothy Rohr have all submitted amicus briefs.
In his own brief, the AG urged the Guam Supreme Court to order a voter referendum, as envisioned in P.L. 20-134. The ban grants voters the opportunity to decide whether the ban should stay. But the law identifies a general election year that has long since passed.
The governor’s office argued that Moylan’s request is outside the scope of issues before the court and the court should not order a referendum. Moreover, because the date in the ban has passed, the court would have to rewrite the legislation if it ordered a referendum, the governor’s office stated, citing a decision that the court’s job is to interpret law, not “weave a more desirable legislative scheme.”
In the wake of legal battles involving abortion, two measures seeking to expand abortion access on Guam have been introduced in the Legislature. Bill 106-37 would allow voters to decide if abortion should be protected. The other, Bill 111-37, would simply enact the provisions of Bill 106 into law.
The Guam Judicial Center in Hagåtña is shown July 16, 2023. The Supreme Court of Guam is set to hear oral arguments regarding the validity and enforceability of the island’s abortion ban.
