Monday, July 31, 2023

ORAL ARGUMENT - ON VIDEO

By Tim Rohr



On July 25, 2023, I presented oral argument before the Supreme Court of Guam relative to Governor Lou Leon Guerrero's request for declaratory judgment on certain questions relative to the standing of "Belle's Law" (P.L. 20-134). 

A previous post set forth the text of my argument. This is a link to the YouTube recording at the point where I begin to present oral argument.

For those deeply interested in the full scope of the matter, you are encouraged to listen to all oral arguments from the beginning of the recording. 

The curious point is that between 1989-1992, when "Belle's Law" (P.L. 20-134) was all the rage and was being hotly debated all the way to the Ninth Circuit, the specter of a case known as Webster v Reproductive Health Services dominated the debate. 

More than three decades later when "Belle's Law" raised its previously buried head via the Dobb's Decision, it's curious that no one on either side of the debate referenced Webster

It's even more curious given that all one has to do is read the history of the case to know that Webster was the direct impetus for "Belle's Law," as well as the basis for the 9th Circuit finding Guam's argument unpersuasive. 

As an aside, I will thank a personal friend and mentor for urging me to present oral argument. 

After filing my amicus brief, I really had no interest in the case thereafter. However, said friend insisted that I present oral argument. The original date for oral argument before the Supreme Court of Guam was May 24, 2023, the day Typhoon Mawar "decided" to attack Guam. 

Prior to the advent of Mawar, I had filed papers with the court to present oral argument remotely since I was off-island at that time. Later, the court issued a memo identifying July 25 as the date for oral argument. I made early plane reservations and made sure I was here.

Full Oral Argument is posted below.

 


TIMOTHY J ROHR - ORAL ARGUMENT
CRQ23-001
SUPREME COURT OF GUAM
JULY 25, 2023

Mr. Chief Justice. May it please the Court. I am not a lawyer and have never argued before an appellate panel before, so in order to make the best use of these few minutes please allow me to read my remarks.

Mr. Chief Justice, my amicus addressed only the question of whether or not the subject law has been repealed by implication. 

However, after reading the petitioner’s consolidated reply, I opt to use these few minutes to address the petitioner’s other question relative to whether or not the legislature exceeded its organic act authority  - and from a point of view nobody else seems to have touched on yet.

The petitioner argues not only that the legislation is defective, but “that the act of passing the legislation itself was defective.” 

While the legislation would ultimately be held unconstitutional and subsequently inorganic, it appears to me that the legislature at the time was within its Organic Act authority to enact legislation that it believed “had a shot.”

By saying “had a shot,” I am referring to a March 16, 1990 NY Times story which reads: “Senator Arriola said that … she drafted [the] bill as soon as the Supreme Court opened the way for new restrictions.” 

The “way for new restrictions” is a reference to the Court’s 1989 decision in Webster v. Reproductive Health Services.

Indeed, Senator Arriola did draft her bill “as soon as the Supreme Court opened the way for new restrictions.” 

Webster was decided on July 3, 1989, and Senator Arriola introduced Bill 848 seven days later on July 10, 1989.

And, quoting from a March 23, 1990 Washington Post story:  “… in the aftermath of last summer's Webster decision, legislators in Guam, like their counterparts in many states, decided to test the scope of Webster by placing restrictions on abortion.”

One can empathize with Senator Arriola’s optimism given the Webster court finding a crack in Roe, a crack held especially loathsome by none-one other than Justice Blackmun, the architect of Roe.

In his dissent in Webster, Justice Blackmun exclaimed:

“For today, at least, the law of abortion stands undisturbed. … But the signs are evident and very ominous, and a chill wind blows.” Webster v. Reproductive Health Services, 492 U.S. 490, 560 (1989)

While we may not get many “chill winds” in Guam, we do get big ones, and it appears that Typhoon Webster went right through the legislature in 1989 and blew all the way to the 9th Circuit in 1992.

In its 1992 decision, the 9th circuit memorializes the fact that Guam enacted P.L. 20-134, not in defiance of Guam’s Organic Act, nor even in defiance of Roe, but pursuant to a perceived opportunity under Webster. 

I hereby quote the 9th Circuit: 

“Guam contends that Roe has no force after Webster v. Reproductive Health Services. Putting Webster together with non-majority opinions in other cases…” 

The court goes on to identify the other cases and then says:

“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.”

Ultimately, of course, the 9th Circuit found Guam’s argument unpersuasive. 

In fact, one of the 9th circuit judges, in a later decision related to the same case, called the whole matter “laughably easy” and characterized the plaintiff’s lawyers as “having reeled in a fat and rather sluggish fish.” 

While I did not find the legislation “laughable”, I did find it irresponsible. 

Given that I never dreamt of ever seeing anything like Dobbs in my lifetime, I believed that the constitutional slap down of P.L. 20-134 would have a chilling effect on future constitutionally-permissible abortion regulations in Guam for a long time to come. 

And for the next 28 years, there were none, leaving so-called Catholic Guam, by 2008, the easiest place in the nation to procure an abortion. 

Nevertheless, while “Belle’s Bill” went wide of the hole in Roe opened by Webster, Webster did present such a hole and the record shows that Guam took a legislative shot at it. 

Dobbs would later turn Webster’s hole into a bullseye. 

In summary, the record in this matter demonstrates that the legislature set out to protect unborn life pursuant to Webster and in doing so, did so legitimately within its organic act authority. 

From that point it was up to the courts to determine the constitutionality of the law, and thereafter its organicity, and they did. 

I argue that because the legislation was enacted pursuant to Webster, P.L. 20-134 was not unconstitutional nor inorganic until it was found by the court to be so.

Thank you Mr. Chief Justice.


_________________________
Notes:

On July 10, 1989, Senator Elizabeth P. Arriola introduced Bill 848 before the Guam Legislature
https://law.justia.com/cases/federal/district-courts/FSupp/776/1422/2340731/

Webster Decided July 3, 1989
https://supreme.justia.com/cases/federal/us/492/490/

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