Wednesday, August 2, 2023


By Tim Rohr

"We reject Plaintiffs’ argument that an in-person informed-consent requirement for women seeking an abortion is not rationally connected to any legitimate governmental interest." - Case: 21-16559, 08/01/2023, ID: 12765649, DktEntry: 55-1, Page 12 of 20


Recently, we laid out, here in JW, the entire scenario, backed with documents, wherein Governor "Lou," conspired with her abortion lieutenant, "The Jayne" to recruit two abortionists based in Hawaii to get licensed in Guam for no other reason than to sue us - you and me. 

Along the way, Lou and Jayne and their Hawaii stooges, recruited the big, bad ACLU. 

At first, Lou and Jayne won. The Guam District Court enjoined the enforcement of a Guam law requiring women seeking an abortion to receive in-person consultation. This opened the door for the Hawaii abortionists to provide the required consultation via tele-anything, and then send the mothers their baby killing pills (probably with a note saying "best wishes").

At the time, things weren't looking good for the pro-life side. 

The Defendants, the guys on our side, were headed up by then-AG Leevin Camacho - in his official capacity as AG, and Leevin wasn't known for his being a stickler for defending the laws of Guam when they conflicted with Lou's wishes. 

In fact:

"In 2021, the Guam Attorney General specifically stipulated in another lawsuit that Guam law permits the use of telemedicine to provide medication abortions." (See: 9th Circuit Opinion linked below)

Still, one way or another, a somewhat half-hearted appeal was filed with the 9th Circuit and the appeal was heard this past February, 2023. 

Our man on the floor was a certain Jordan L. Pauluhn, then an attorney with the AG (he's not now). 

I watched the proceedings via video and in my view, Mr. Pauluhn did a somewhat impressive job. I even called him a "rockstar." However, he was only doing his job - which was defending the laws of Guam, whereas the ACLU lawyers were highly if not viciously ideologically motivated. 

Note: They may have also been financially motivated. Given what we know now about the connection between Lou and the ACLU, a nice FOIA may turn up some interesting checks. 

Today, the 9th Circuit promulgated its Opinion, which I copy here in relevant part (emphases added):

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court made clear that the Constitution does not guarantee a right to an abortion because it is neither enumerated in the constitutional text nor deeply rooted in our nation’s history. 142 S. Ct. 2228 (2022). So now the people’s representatives—not judges—decide whether to allow, ban, or regulate abortions. And in turn, courts play only a modest and minor role: We merely apply a highly deferential rational basis review in assessing the constitutionality of an abortion-related law.

Under this new legal landscape, we vacate the district court’s preliminary injunction against Guam’s in-person informed-consent law. That law requires women seeking abortions to have an in-person meeting with a physician—or a qualified agent of the doctor—who must disclose certain medical as well as other information (e.g., medical risks, adoption opportunities) to a patient before she has an abortion. Guam has legitimate interests in requiring an in-person consultation: the consultation can underscore the medical and moral gravity of an abortion and encourage a robust exchange of information. As we learned during the pandemic, a telephonic or video meeting may be a poor substitute for an in-person meeting, whether it be in the classroom, courtroom, or clinic.

Plaintiffs point out that women in Guam seeking abortions must obtain chemical abortifacients via telemedicine, given the current lack of doctors who perform abortions on the island. Plaintiffs argue that the law may thus thwart informed consent because the treating doctor off the island may have to pick a non-medical agent to provide the in-person medical disclosures. But nothing in the law prevents the treating doctor from providing the same or additional information as that required in the in-person meeting when the doctor meets with patient via videoconference or phone. The law sets a minimum, not a maximum, disclosure requirement, and does not prohibit the doctor from communicating additional information that the doctor believes is required under another law or professional obligation. In short, Guam’s law passes muster under the low bar of rational basis review.

Plaintiffs’ equal protection challenge fails as well. Guam can require an in-person consultation for abortions— but not for other medical procedures—because abortion is different, as it involves what Dobbs described as the “States’ interest in protecting fetal life.” Id. at 2261. People across the United States and its territories may in good-faith strongly disagree on abortion, but the people of Guam can make the policy choice to treat abortion differently from other medical procedures.

In other words, Lou loses. 

But beyond Lou losing, the 9th Circuit Opinion is a real example of how courts should work. In spite of which side makes the most spirited argument, the court looked past the personalities and ideologies of the "arguers" and simply opined based on its interpretation of the law relative to the current legal landscape. 

Note: There is NO REASON our own District Court judge could not have done the same thing. 

Read the full opinion here

And while "Lou loses," we are the real loser. How much of OUR time and OUR money did Lou spend on trying to kill more Guam babies? But then that's who you voted for. Isn't it. 

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