Law
Looking back at Guam ’ s failed abortion ban By Aurora Kohn
In the wake of the U . S . Supreme Court ’ s recent decision on Dobbs v . Jackson Women ' s Health Organization , Vice Speaker Tina Muna-Barnes and Sen . Mary Torres have called on the Office of the Attorney General to revisit an old law that sought a total ban on abortion on Guam and determine whether the reversal of Roe v . Wade might have a retroactive effect .
In 1990 , the District Court of Guam declared Public Law 20-134 unconstitutional , and therefore void . The decision was based on a lawsuit filed by the Guam Society of Obstetricians against then Gov . Joseph Ada .
The court ordered Ada and the Guam Election Commission to be permanently restrained from “ operating , administering , enforcing or executing ” any of the provisions of the challenged law .
P . L . 20-134 declared that “ the life of every human being begins at conception , and that unborn children have protectible interests in life , health , and well-being .” As such , any abortion performed was unlawful unless it consisted of " a medical intervention in ectopic pregnancy ” or two physicians determined that abortion was necessary to avoid endangering the life or impairing the health of the mother .
The law also appropriated funds for the Guam ’ s Commission on Election to conduct a referendum asking voters to decide whether they approved of the abortion ban .
Despite the provision for a referendum , the law was immediately implemented , prompting Guam ’ s Society of Obstetricians to sue the government on their behalf and that of their women patients .
In its decision , the federal court cited the 1968 amendments to Guam ’ s Organic Act , adding extending to Guam the application of the 14th amendment , which prohibits states from enforcing any laws that “ abridge the immunities or privileg-
es ” of American citizens .
Ada argued that the 1968 amendments introduced to Organic Act could not have contemplated the application of Roe v . Wade , arguing that the 1973 ruling had not been decided at the time the amendments were introduced .
He reasoned that there was no “ legislative intent ” or any “ signal ” on the part of U . S . Congress to apply Roe v . Wade to Guam .
The court rejected Ada ’ s arguments , pointing out that the purpose of extending the application of the constitutional “ due process ” and “ equal protection ” to Guam was to ensure that territorial citizens were afforded the ability to exercise these rights .
It held that since Roe v . Wade was an interpretation of constitutional provisions that apply to Guam , the decision applies with “ equal force and effect ” to the territory .
The federal court also held that the state had no “ compelling interest ” in the first trimester of pregnancy and therefore may not restrict a woman ’ s right to seek an abortion at that stage .
In approximately the second trimester of pregnancy , the only applicable state interest was protecting the mother ’ s health . Only for that purpose can the state regulate a woman ’ s right to seek an abortion .
After “ viability of the fetus ,” the state may choose to regulate the right to abortion “ except where it is necessary for the preservation of the life or health of the mother ,” the court said .
Due to the failure of P . L . 20-134 to make these distinctions , the court determined that the statute violated the due process clause of the 14th amendment .
To this date , abortion remains legal on Guam . While there is no resident doctor performing abortion procedures , abortive pills are locally available to women seeking to terminate their pregnancies .
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