While this column shall hereon be titled From the Gallery, this first column is the text of my argument “from the podium” this past July 25 before the Supreme Court of Guam relative to the governor’s request for declaratory judgment on questions regarding the status of P.L. 20-134 (aka Belle’s Law). The following is edited to meet space requirements.
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The plaintiff (governor) argues not only that P.L. 20-134 is defective, but “that the act of passing the legislation itself was defective.”
While P.L. 20-134 would ultimately be held unconstitutional and 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, Sen. (Elizabeth) 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 Sen. Arriola introduced Bill 848 seven days later on July 10.
And, quoting from The Washington Post March 23, 1990, “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 Sen. 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.”
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 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.
Quoting the 9th Circuit, “Guam contends that Roe has no force after Webster. … 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 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 the Dobbs decision 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 bull's-eye.
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.
Tim Rohr has resided in Guam since 1987. He has raised a family of 11 children, owned several businesses and most recently has been active in local issues via his blog, JungleWatch.info, letters to local publications and occasional public appearances.
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