GEORGIA V. GUAM: THE BATTLE OF VOID AB INITIO

By Tim Rohr

The Supreme Court of Georgia has issued an opinion on a matter that was extremely similar to a matter that was recently before the Supreme Court of Guam.

The matter before the Georgia Court was whether or not a 2019 law which regulates abortion procedures was "void ab initio," meaning null from the beginning, because the 2019 law was enacted while Roe was still in effect.

This was the exact same question put forth by Gov. Lou Leon Guerrero for declaratory judgment by the Supreme Court of Guam:

Petitioner Lourdes A. Leon Guerrero, I Maga’hågan Guåhan (“the Governor”), filed a Request for Declaratory Judgment under 7 GCA § 4104 requesting that this court declare P.L. 20-134 void ab initio...

- In Re: Request of Lourdes A. Leon Guerrero, I Maga'Hagan Guahan, Relative to the Validity and Enforceability of Public Law No. 20-134, 2023 Guam 11, CRQ23-001, October 31, 2023, Pg. 3

The majority opinion (Justices Torres and Manglona) opted to declare P.L. 20-134 of "no effect" on the basis that it was "impliedly repealed" by subsequent abortion legislation, and declined to address the Ultra Vires question.

We Decline to Address the Ultra Vires Question

- In Re: Request of Lourdes A. Leon Guerrero, I Maga'Hagan Guahan, Relative to the Validity and Enforceability of Public Law No. 20-134, 2023 Guam 11, CRQ23-001, October 31, 2023, Pg. 27

 (Ultra Vires meaning that in 1990, and under Roe, the legislature did not have the authority to pass the subject law and was void ab initio - null from the beginning.)

The third Justice, Justice Carbullido, while concurring with the majority, opted to "address the Ultra Vires Question," holding that the law was void ab initio and spent twelve pages doing it, one page more than the majority spent (beginning on Pg. 19) arguing that the law was impliedly repealed:

I agree with the majority on its jurisdictional analysis and its conclusion that Public Law 20-134 was impliedly repealed. I further agree that 7 GCA § 4104 confers upon this court discretion to decline to provide relief even when its jurisdictional test is met. Where I part ways, is the decision to use that discretion in this case. In her ultra vires Question, the Governor properly asked this court to answer an important question about the scope of the power and authority of the Guam Legislature. This question merits an answer. I agree with the Governor that because Roe v. Wade was the law of the land in 1990, P.L. 20-134 was void ab initio, and the Legislature acted ultra vires in passing it. (Emphases added)

- In Re: Request of Lourdes A. Leon Guerrero, I Maga'Hagan Guahan, Relative to the Validity and Enforceability of Public Law No. 20-134, 2023 Guam 11, CRQ23-001, October 31, 2023, Pg. 30

Back to the Supreme Court of Georgia and copying directly from Pg. 21 of its Opinion issued on Oct. 24, 2023, just a week before the Supreme Court of Guam (per Justice Carbullido's Concurrence) issued its very different Opinion on Oct. 31, 2023. 

It is clear from these well-established principles of Georgia law that a Georgia court must look to Dobbs — not Roe — in determining whether the LIFE Act was void ab initio when enacted in 2019. In Dobbs, the United States Supreme Court overruled its earlier decision in Roe, declaring that “Roe was egregiously wrong from the start,” Dobbs, 142 SCt at 2242-2243, and Georgia courts are “not permit[ted] . . . to persist in an error of federal constitutional law” when that error is clear under controlling United States Supreme Court precedent, Lejeune v. McLaughlin, 296 Ga. 291, 297-298 (2) (766 SE2d 803) (2014) (emphasis in original) (holding that we could not adhere to our precedent interpreting the United States Constitution, even though our interpretation had been based on a decision of the United States Supreme Court, because a subsequent Supreme Court decision clarified that our precedent was “simply wrong”). Accordingly, the trial court erred in analyzing whether the LIFE Act was void ab initio under now-overruled Roe-era precedent that controlled before Dobbs issued, rather than under the now- controlling Dobbs decision.

The foregoing needs no interpretation. It's quite clear that the Georgia court, instead of finding the 2019 law void ab initio, in effect, found Roe itself (pursuant to Dobbs) void ab initio.

The questions before the Supreme Court of Guam were for declaratory judgment only and it is unclear to what effect this judgment will have as the matter over the constitutionality of P.L. 20-134 goes forward to the Ninth Circuit - which will have the Georgia court's opinion before it.

Meanwhile, it would behoove the self-declared pro-lifers in the Guam legislature to grab a hold of "Belle's Law, get rid of the "speech" provisions, and reintroduce it.