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opinion (Justices Torres and Manglona) opted to declare P.L. 20-134 of "no effect" on the basis that it was "impliedly repealed" by subsequent abortion legislation, and declined to address the Ultra Vires question.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twelve pages doing it, one page more than the majority spent (beginning on Pg. 19) arguing that the law was impliedly repealed:

I agree with the majority on its jurisdictional analysis and its conclusion that Public Law 20-134 was impliedly repealed.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. 

FROM 1989 - AND WHY ROE (IN 2022) CAME TUMBLING DOWN

By Tim Rohr

This is heavy reading, but JUSTICE SCALIA'S opinion here in 1989 demonstrates why Roe eventually came tumbling down:

The real question, then, is whether there are valid reasons to go beyond the most stingy possible holding today. It seems to me there are not only valid but compelling ones. Ordinarily, speaking no more broadly than is absolutely required avoids throwing settled law into confusion; doing so today preserves a chaos that is evident to anyone who can read and count. Alone sufficient to justify a broad holding is the fact that our retaining control, through Roe, of what I believe to be, and many of our citizens recognize to be, a political issue, continuously distorts the public perception of the role of this Court. We can now look forward to at least another Term with carts full of mail from the public, and streets full of demonstrators, urging us — their unelected and life-tenured judges who have been awarded those extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will — to follow the popular will. Indeed, I expect we can look forward to even more of that than before, given our indecisive decision today. And if these reasons for taking the unexceptional course of reaching a broader holding are not enough, then consider the nature of the constitutional question we avoid: In most cases, we do no harm by not speaking more broadly than the decision requires. Anyone affected by the conduct that the avoided holding would have prohibited will be able to challenge it himself and have his day in court to make the argument. Not so with respect to the harm that many States believed, pre- Roe, and many may continue to believe, is caused by largely unrestricted abortion. That will continue to occur if the States have the constitutional power to prohibit it, and would do so, but we skillfully avoid telling them so. Perhaps those abortions cannot constitutionally be proscribed. That is surely an arguable question, the question that reconsideration of Roe v. Wade entails. But what is not at all arguable, it seems to me, is that we should decide now and not insist that we be run into a corner before we grudgingly yield up our judgment. The only sound reason for the latter course is to prevent a change in the law — but to think that desirable begs the question to be decided.

It was an arguable question today whether § 188.029 of the Missouri law contravened this Court's understanding of Roe v. Wade, and I would have examined Roe rather than examining the contravention. Given the Court's newly contracted abstemiousness, what will it take, one must wonder, to permit us to reach that fundamental question? The result of our vote today is that we will not reconsider that prior opinion, even if most of the Justices think it is wrong, unless we have before us a statute that in fact contradicts it — and even then (under our newly discovered "no-broader-than-necessary" requirement) only minor problematical aspects of Roe will be reconsidered, unless one expects state legislatures to adopt provisions whose compliance with Roe cannot even be argued with a straight face. It thus appears that the mansion of constitutionalized abortion law, constructed overnight in Roe v. Wade, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.

- “That question, compared with the question whether we should reconsider and reverse Roe, is hardly worth a footnote...” 

...“Of the four courses we might have chosen today — to reaffirm Roe, to overrule it explicitly, to overrule it sub silentio, or to avoid the question — the last is the least responsible” Webster v. Reproductive Health Services, 492 U.S. 490, 537 (1989) 

Webster v. Reproductive Health Services, 492 U.S. 490, 534-37 (1989)

NONE OF YOUR BUSINESS?

By Tim Rohr

We are constantly lectured by the pro-aborts that what a woman does with her body is "none of your business." 

Okay, fair enough. Never mind the scientific fact that there is another body in the woman's body, let's grant the pro-aborts their argument for now. 

The question then becomes: "Okay, at what point is that "other thing in your body" not your body?

According to our now-governor, even after that "other thing in your body" is no longer in your body but laying on a delivery table or in a waste bucket still alive and gasping for life, that "other thing that WAS in your body" is still "your body" and you have the right to kill "the thing," even if the thing is no longer in your body - and that's because you wanted the thing dead in the first place.  

(Listen to Tall Tales every Friday after the "half-time" show to hear or watch a recording of the now-governor arguing for the death of the living "thing" at a legislative public hearing.)

Okay, that's a bit extreme, so let's back up a bit. 

Let's say the thing is already mostly delivered except for the thing's head which is still inside your body. Is it still your body? If so, then is it okay with you to stick a knife into the back of the thing's head and scramble its brains before delivering the rest of the now-dead thing? 

Note: In case you don't know this is called partial-birth abortion, and Sens. Fisher and Barnes' new bill will remove the ban on this particular way of killing the thing.

Okay, that's still a bit extreme, I mean the thing's arms and legs flailing about at the moment the knife stabs into its brains (as described by nurse witnesses). So let's back up a little more. Let's back up to Roe, the pro-abort's monument upon which the "none of your business" mantra is built.

Pro-aborts will probably be surprised to learn that Roe never said "it's none of your business." In fact, it pretty much said it's none of the woman's business.  

Roe v. Wade, 410 U.S. 113 (1973) at XI, the Court wrote:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(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.

Note that in (a) the decision is not the woman's but "the woman's attending physician." And note that in (b) and (c), the Court clearly makes a case for "it's the state's business." In fact, it could be said that the recent decision in Dobbs, giving the regulation of abortion back to the states, was just doing what Roe itself had already called for 50 years earlier, at least for the second and third trimesters. 

So, at least according to Roe re abortion in the second and third trimesters, a decision to "kill the thing" in your body IS "our business," because "who is the state" other than we, the people, who reside and vote there?

But back to where we started for a minute. Is it your business to care about a child who is demonstrably abused, neglected or abandoned? If so, at what point is that child "your business?" Still in the womb, partially delivered out of the womb, out of the womb altogether, 3 minutes old, 3 years old? Where's the line? 

At least Roe drew a line, even with conditions, at about 12 weeks gestation, or the end of the first trimester. And given that even during the first trimester the decision was never the woman's but the physician's (probably a man at the time), it could be said that the ultimate decision to abort was never the woman's. 

And since the pro-aborts cannot provide a line - even wanting the legal right to kill the thing already delivered and still alive  - we will. And our line is this: 

IT IS NEVER OKAY TO KILL A HELPLESS, INNOCENT, DEFENSELESS HUMAN BEING. NEVER. 

IN TODAY'S PACIFIC DAILY NEWS - NOVEMBER 6, 2014

Please read my op-ed in today's PDN. Most pro-choicers don't have a clue...and probably not many pro-lifers either.

Pro-life legislation spawns from Roe v. Wade

In "Anti-abortion is anti-women" (Oct. 2 Pacific Daily News), feminist blogger, Amanda Marcotte bemoans "the recent rash of anti-abortion laws" and impugns the idea that the protection of women is the real motivation for most of these laws, calling it "disingenuous lip-flapping about wanting to protect women."

Continued