SENATOR TOM FISHER ON THE RAY GIBSON SHOW - MAY 1, 2023

By Tim Rohr

On this past Monday's Ray Gibson show, Ray invited Sen. Tom Fisher into the studio to discuss Fisher's Bill 106-37 which calls for a referendum on new abortion legislation - also written by Fisher - "to allow health care providers to provide abortion services without limitations..." 

Ray's interview with Fisher begins at about 1:49:00 into the show and a few things caught my attention to which I shall respond.

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FISHER: "I understand the abortion question….but that is not the question here today. We are going to fulfill our responsibility under Dobbs."

MY COMMENTS:

What "responsibility" is that?

Abortion is already fully legal in Guam save for a very few limitations: no partial-birth abortion, parental consent for minors, informed consent for women seeking to abort, and a reporting requirement. 

Fisher's bill seeks to remove these limitations, all of which were constitutionally compliant under Roe and Casey, and had nothing to do with Dobbs. 

Since Fisher laments Dobbs and celebrates Roe and Casey, then that's what we already have in Guam: the freedom to abort pursuant to Roe and Casey. There is no further "responsibility" under Dobbs, unless of course Fisher and Barnes (sponsors) want to drive a final death stake through a still beating heart. 

By the way, if Fisher doesn't like the current limitations on abortion, then his issue is with Casey, not Dobbs. It was Casey which opened the door for common sense limitations on abortion like parental and informed consent and abortion reporting:

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

Re parental consent for minors:

This conclusion is in no way inconsistent with our decisions upholding parental notification or consent requirements. ... Those enactments, and our judgment that they are constitutional, are based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart. 

Re Informed Consent for the woman seeking to abort:

We are left with the argument that the various aspects of the informed consent requirement are unconstitutional because they place barriers in the way of abortion on demand. Even the broadest reading of Roe, however, has not suggested that there is a constitutional right to abortion on demand. ... Rather, the right protected by Roe is a right to decide to terminate a pregnancy free of undue interference by the State. Because the informed consent requirement facilitates the wise exercise of that right, it cannot be classified as an interference with the right Roe protects. The informed consent requirement is not an undue burden on that right.

Re abortion reporting:

The collection of information with respect to actual patients is a vital element of medical research, and so it cannot be said that the requirements serve no purpose other than to make abortions more difficult. Nor do we find that the requirements impose a substantial obstacle to a woman's choice. At most they might increase the cost of some abortions by a slight amount. While at some point increased cost could become a substantial obstacle, there is no such showing on the record before us.

FISHER: "… this submission is not an unlimited right to an abortion. It’s up to fetal viability, of course it’s up to fetal viability because the state then has an obvious interest in that." 

MY COMMENTS:

Fisher, in an apparent effort to sound reasonable and credible, is using the language of Roe which emphasized the state's interest in protecting what Roe called "potential life" after the first trimester:

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

Roe v. Wade, 410 U.S. 113 (1973) at XI

However, Fisher misleads. Fisher makes no mention of the state's "obvious interest in that" in his bill. In fact, Fisher leaves the decision to abort the child "after viability" completely up to the "health care provider" who is being paid to deliver a dead child, not a live one:

91B] 04. Permitted Services.

(a) General Rule. A health care provider has a statutory right under this Actto provide abortion services, and may provide abortion services, and that provider's patient has a  corresponding right to receive such services, without any of the following limitations or requirements:

(9) A prohibition on abortion after fetal viability when, in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient's life or health.

 

GUAM'S UNBORN VICTIMS OF VIOLENCE ACT 

At about 1:53:00 Ray asks:  

"How would it be handled in a criminal case if somebody attacked a pregnant woman at which point in a situation like that would it be considered an attack on the woman and the baby?"

FISHER: "Unclear. Most jurisdictions that have faced the issue have actually addressed it. If a mother for example is quickening and she is killed and the fetus dies then some states have actual statutes that provide for an additional charge of murder manslaughter whatever that is." 

RAY: "We do here." 

FISHER: "We do? Well, okay, well that answers your question then, right?"

RAY: "I don’t know when the viability kicks in on that, it might be just a blanket she’s pregnant and you took two lives and that’s all there is to it." 

Ray may be excused for not knowing the particulars of Guam's UNBORN VICTIMS OF VIOLENCE ACT, but at least he knew the ACT exists. 

Apparently Senator Fisher did not. 

For the education of us all, said ACT does not address the moving target of viability. The ACT simply criminalizes any attack on the mother which harms or kills the "unborn child," who, according to the ACT is legally NOT a "fetus," as Fisher insists on calling the unborn child:

9 G.C.A. § 17.03. Definitions.

For the purposes of this Chapter, the following terms are defined to mean:

(b) unborn child shall mean a child in utero, and the term “child in utero” or “child, who is in utero” means a member of the species homo sapiens, at any stage of development, who is carried in the womb.

 

A PERSONAL NOTE

I don't know Senator Fisher. I never met him or interacted with him directly in any way. As a candidate, he presented himself as reasonable, knowledgeable, and credible. So I voted for him. Senator Fisher has every right to introduce whatever legislation he wants and to take any position he wants. I am tempted to advise him, though, not to mislead or lie. However, following such advice could be political suicide. Misleading and lying has worked so well for so many of his colleagues for so very long. In fact, even when they get caught and get voted out, they get voted in again the next time around. So carry on Mr. Fisher. Meanwhile, this referendum, if it becomes a referendum, will not be a referendum on abortion, it will be a referendum on the hearts and minds of the voters of Guam.