HAGÅTÑA (The Guam Daily Post) — The Office of the Attorney General is still evaluating the Supreme Court of Guam’s determination that the island’s old abortion ban is without effect, and is communicating with opposing parties about the impact that might have on the ongoing appeal at the 9th U.S. Circuit Court of Appeals, according to a motion in the case.
Lawyers for Consovoy McCarthy PLLC, appearing for the OAG in the 9th Circuit, wanted to extend their deadline to reply to answering briefs submitted by opposing parties in late October. They cited scheduling conflicts, the ongoing matters involving the Guam Supreme Court opinion and, at the time of the request, the upcoming Thanksgiving holiday as reasons to grant the extension. The 9th Circuit did grant the request, and the OAG now has until Dec. 15 to submit its reply.
The 9th Circuit appeal stems from Attorney General Douglas Moylan’s attempt to lift a permanent injunction placed on the abortion ban almost immediately after its enactment more than 30 years ago.
The ban, Public Law 20-134, was enacted in 1990. It 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, are not exempt under the ban unless they meet those limited exceptions. Moreover, the ban makes it a crime to solicit a person to submit to an abortion, which raised free speech concerns.
The ban was quickly challenged and held unconstitutional due to Roe v. Wade still being the case law at the time. Roe v. Wade was the 1973 U.S. Supreme Court decision that established the right to an abortion in the U.S. After the ruling, P.L. 20-134 was placed under an injunction but was never explicitly repealed.
Just last year, the U.S. Supreme Court overturned Roe v. Wade, ruling in Dobbs v. Jackson Women’s Health Organization that the Constitution does not guarantee a right to abortion. This gave states and other jurisdictions greater latitude to regulate the practice – including the implementation of outright bans.
Shortly after coming into office at the beginning of this year, Moylan motioned the District Court of Guam to dissolve the injunction on P.L. 20-134. He was opposed by the governor, the administrator of the Guam Memorial Hospital Authority and plaintiffs in the class-action lawsuit brought against the ban decades ago.
The District Court ultimately ruled against Moylan in March, stating that he failed to address certain arguments raised by the plaintiffs. Moylan then appealed the decision to the 9th Circuit.
But at the same time that the attorney general was seeking to dissolve the injunction at the federal courts, Gov. Lou Leon Guerrero was asking the Guam Supreme Court to determine the validity and enforceability of the abortion ban.
The local high court considered two questions: whether the Guam Legislature had the authority to pass the ban and, to the extent that the ban would not be void or unenforceable, whether it had been repealed by implication through subsequent local laws on abortion.
For the latter, the Guam Supreme Court decided that, yes, the ban was repealed by implication through subsequent laws that allowed for abortion. P.L. 20-134, therefore, “no longer possesses any force or effect in Guam,” according to the court.
The majority in the Guam Supreme Court chose not to answer the question on legislative authority, but Justice Philip Carbullido thought it merited a response. He determined separately that the Guam Legislature acted beyond its authority by passing the abortion ban at a time when abortion was protected by U.S. law.
It’s unclear how the appeal at the 9th Circuit will move forward, as the federal case is ultimately about lifting the ban’s injunction to allow for enforcement – a ban that the Guam Supreme Court says no longer exists.
