HomeCommunity IssuesGuam's Supreme Court to test decades-old abortion ban

Guam’s Supreme Court to test decades-old abortion ban

As the Guam Daily Post reports, Guam’s High Court will be testing the constitutional and legal validity of Public Law 20-134, passed in 1990, which essentially banned abortion on the island until it was deemed unenforceable.

In a 1997 case in the 9th Circuit Court of Appeals, it was found that the law was unconstitutional, according to the interpretation of Roe v. Wade then in force as Supreme Court precedent. Since then, Public Law 20-134 hasn’t been able to be enforced, but it also hasn’t been repealed.

But now, with the conservative majority of the US Supreme Court having overturned the long-held interpretation of Roe under which the law was deemed unconstitutional, the question of whether the near-total abortion ban in Public Law 20-134 will be enforceable once again is open.

The case was originally planned to be heard on May 24th, but was delayed as Typhoon Mawar struck the island around the same time, causing two deaths and damage to infrastructure,.

The renewed test of Guam’s abortion ban comes at the prompting of Lou Leon Guerrero, the Democrat governor of the island. In 1989, when Public Law 20-134 was Bill 848 and she was the president of the Guam Nurses Association, she provided the sole testimony from a Chamoru woman against it.

In January and February of this year respectively, Gov. Lou Leon Guerrero petitioned the Supreme Court of Guam on the issue, while AG Douglas Moylan filed a motion to vacate the injunction with the District Court of Guam. The two courts are distinct, and have split the questions under consideration between them.

The democratic governor’s petition requested the island’s Supreme Court answer three questions:

  • Whether the island’s legislature had the authority to pass the law?
  • Was the law implicitly repealed by subsequent laws, which regulated abortion to a less restrictive standard than the near-total ban in Public Law 20-134?
  • And, is Public Law 20-134 forever void?

The island’s Supreme Court will consider the first two questions, while the last question was been left to the District Court, and answered on March 24th.

AG Moylan was denied by the district court, which said that he had failed to respond to issues raised by plaintiffs in the case, leading him to announce plans to appeal to the 9th US Circuit Court of Appeals. The ACLU reports that the court has upheld the injunction against the law.

In his brief, AG Moylan advised that the Guam Supreme Court hold a referendum among voters, as was envisioned when Public Law 20-134 was passed. The referendum would allow residents to determine whether they want the abortion ban to stay, but that would require that the island’s Supreme Court first overturn the injunction.

The Governor’s office argued against Moylan’s brief, saying that the court should not order a referendum, as the court’s job is to interpret rather than rewrite laws.

If the near-total ban doesn’t come back into effect, abortion in Guam will continue to be governed by the Women’s Reproductive Health Information Act, passed in 2012.

The legislation in question bans abortion after 13 weeks and imposed a mandatory 24-hour waiting period, during which time the abortion provider must provide the woman with a package of information about abortion written by a government-appointed team, which PNC – Guam described as having been created to ensure “impartiality.” Others disagree, believing the information provided aims to convince women not to get abortions.

If Public Law 20-134 is enforced again, all abortions on the island will be banned except in case of “substantial risk” to the woman’s life or when continuing the pregnancy would “gravely impair” her health.

While Guam’s access to abortion has often also been limited by a lack of medical personnel willing to administer abortions, the ACLU issued its brief to the court alongside the only two physicians who administer abortions on the island, so there is some access, an improvement since 2018, when the then-last provider retired.

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