NOT A GOOD START FOR OUR NEW ATTORNEY GENERAL - MAYBE

By Tim Rohr

On Friday (March 24), the District Court of Guam issued ORDER denying the Attorney General's motion to lift the injunction on P.L. 20-134, a 1990 law banning most abortions in Guam. 

The reason for the DENIAL was that Defendant AG failed to refute Plaintiffs' argument that "the [public law] was a legal nullity the moment it was passed and can have no force or effect today.”

While Defendant AG argues that the legal basis for the permanent injunction no longer exists, Defendant AG failed to address whether the change in law in Dobbs warrants vacatur of the permanent injunction in its entirety. As Plaintiffs have argued, “irrespective of Dobbs or any other Supreme Court decision concerning abortion issued after [Guam Public Law 20-134] was enacted, the [public law] was a legal nullity the moment it was passed and can have no force or effect today.” Pls.’ Opp’n at 20, ECF No. 391. Defendant AG has not refuted this argument, and after having reviewed the relevant statutes and the legal authority provided by Plaintiffs in their opposition, to which Defendant AG did not respond, the court finds that Defendant AG has not met his burden under Rule 60(b)(5). (Emphases added)

If the Court's account of things is correct, then this is not a good start for our newly elected AG.

It's a little late now, but - in my limited lay view - the AG should have argued that P.L. 20-134 was NOT a "legal nullity" on grounds that it was in fact one of the nation's first constitutional challenges to Roe under Webster. In fact, this was precisely why the late-Senator Elizabeth Arriola introduced her bill:

Senator Arriola said that banning abortion had been the main goal of her political career and that she drafted a bill as soon as the Supreme Court opened the way for new restrictions. - The New York Times, March 16, 1990. 

In fact, P.L. 20-134 ("the law") made huge national news because it was one of the nation's first challenges to Roe, even preceding the landmark case in Casey (1992). And, as a challenge to Roe, it worked its way all the way up to the U.S. Supreme Court (where the challenge ended when the Court declined to hear it). 

The challenge under Webster is set out as follows in Guam Society of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366 (9th Cir. 1992):

Guam contends that Roe has no force after Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989). Putting Webster together with non-majority opinions in other cases, Guam contends that the classification of competing interests has changed. Guam relies particularly upon Justice O'Connor's dissents in Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. at 814, 106 S.Ct. at 2206, and Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 452, 103 S.Ct. 2481, 2504, 76 L.Ed.2d 687 (1983). According to Guam, five Justices of the Supreme Court now recognize the state's compelling interest in potential human life throughout pregnancy, and no longer adhere to the Roe analysis. In Webster, a three-Justice plurality stated that it did "not see why the State's interest in protecting potential human life should come into existence only at the point of viability." Webster, 492 U.S. at 519, 109 S.Ct. at 3057. It also characterized the woman's interest as a "liberty interest," as distinguished from a "fundamental right." Id. at 520, 109 S.Ct. at 3058. Guam would put these statements together with Justice Scalia's view that Roe should be overruled. Id. at 532, 109 S.Ct. at 3064. It would then add Justice O'Connor's view that regulations that do not impose an "undue burden" on a woman's right to seek an abortion are sustainable if rationally related to a legitimate state purpose. Id. at 529-30, 109 S.Ct. at 3062-63; Thornburgh, 476 U.S. at 828, 106 S.Ct. at 2214.6 Finally, it would include Justice O'Connor's position elsewhere expressed that the state's compelling interest exists throughout pregnancy. See Akron, 462 U.S. at 459, 103 S.Ct. at 2507; Thornburgh, 476 U.S. at 828, 106 S.Ct. at 2214. From this mix, Guam derives the conclusion that its interest in fetal life can overcome the woman's right to choose whether to have an abortion, and that Guam's Act is therefore not unconstitutional on its face. (Link) (emphases added)

Guam would lose it's appeal at the 9th Circuit and would be later denied a final appeal by the Supreme Court, but the above facts demonstrate that the law was NOT a "legal nullity" at the time of its enactment, but was in fact an intended constitutional challenge to Roe, and moreover, that the Guam Legislature was fully within its authority to engage and pass the legislation that led to the law and the resultant constitutional challenge.

Meanwhile, the law was more than just a challenge to Roe, it was a challenge by "little Guam" for sovereignty - a real David and Goliath moment - something the Bevacqua's of Guam should be shouting in praise of (but aren't):

In 1990, Guam became embroiled in one of the most divisive social policy debates in its forty-year history as a U.S. territory when a Chamorro woman senator introduce a bill virtually banning abortion. This legislation was passed unanimously be a twenty-one-member legislature with seven women senators. The local activism this controversial bill catalyzed, its enactment, and the immediate challenge to its constitutionality catapulted Guam in the U.S. nation media as a frontrunner in the race to overturn Roe v Wade… 

At the time there was a complex interaction over abortion among activists, interest groups, legislatures, governors, and courts being played out in several states. The was sparked by the July 1989 Supreme Court ruling in Webster v Reproductive Health Services, which opened the door for states to test the limits of how far they could in restriction access to abortion…

While this law, like others in the race to overturn Roe, was a local response to national policy development, it was embedded in growing local frustration over the impasse with the U.S. Congress to act on Guam’s proposal to change its political status. The signing of this bill and the appeal of the lower court’s decision all the way to the Supreme Court provided a high-profile opportunity of Guam’s governor to link his personal moral justification for the ban on abortion with a broader political case. (emphases added)

- Asian/Pacific Islands American Women: A Historical Anthology, Chamorro Women, Self-Determination and the Politics of Abortion in Guam, Vivian Loyola Dames, Pg 366 (Link to Google Book)

All of the above is not only an "easy search," it was also huge news at the time and certainly within the memory of the AG. We are waiting to hear what's next.