13 Nov 2023

Guam keeps abortion legal but restricts access

5:03 pm on 13 November 2023
A pro-choice demonstrator considers abortion to be health care during a demonstration outside Senate office buildings on Capitol Hill. Protesters demanded Democrats take action to restore reproductive rights. Protests erupted across the United States immediately after the Supreme Court issued its opinion on Dobbs v. JWHO, . reversing the federal right to abortion decided in Roe v. Wade. Without Congressional action, each state tmay set its own laws, and 26 have or are expected to ban abortion completely. (Photo by Allison Bailey/NurPhoto)
Allison Bailey / NurPhoto / NurPhoto via AFP

Photo: Allison Bailey/NurPhoto via AFP

There's elation among pro-choice advocates in Guam following a decision by the US territory's Supreme Court to debunk an old anti-abortion law.

It dashes attempts by pro-life lawmakers on Guam to lift an injunction on Public Law 20-134, a law which imposes a total ban on abortion in all circumstances.

Under current Guam law, abortion is prohibited after 13 weeks of pregnancy.

Guam's Supreme Court held that Public Law 20-134 was a "dead law" because subsequent legislations had repealed it by implication.

"I'm ecstatic about it," pro-life Senator Will Parkinson, who supported the legal battle to protect abortion, said.

"I have always been a pro-choice advocate and hearing the Supreme Court decision that the 1990 pro-abortion law is no longer valid is a great step forward," he said.

"For decades, people thought the question of abortion was settled with Roe v Wade but its overturning has made us question our basic assumptions and it's spurred me into action to make sure our bodily autonomy is protected."

For many, it seemed certain that the injunction would be lifted thanks to the US Supreme Court's overturning of Roe vs Wade in June last year, the 1973 landmark decision which had guaranteed the protection of abortion rights across all US states and territories.

With Roe vs Wade now out of the way, pro-life lawmakers appeared to have the legal mandate to lift the injunction and in January, Guam's Attorney General Douglas Moylan filed a motion to vacate the injunction.

"Other states in similar situations have since June 2022 moved to dissolve the injunctions issued stopping their abortion laws from being enforced. Guam has not," Moylan told the Guam Daily Post.

But in March, the US District Court for the District of Guam rejected Moylan's request to vacate the injunction, ruling that Moylan failed to show whether the US Supreme Court's ruling in overturning Roe vs Wade supported vacating the injunction in its entirety.

Meanwhile, pro-choice Governor Lou Guerrero had filed a petition for Guam's Supreme Court to determine whether the law was still enforceable, a move that was challenged by Moylan.

On 31 October, the Supreme Court responded to the petition.

Chief Justice Phillip Carbullido ruled that Public Law 20-134 was inherently void because Roe vs Wade was the prevailing law of the land in 1990 and that at the time, the Guam Legislature had exceeded its authority in passing it.

He further ruled that changes to Guam's abortion policy had to come from the legislature.

"We knew this was a dead law due to subsequent laws that were passed that over-rode that law," Guam's Bureau of Women's Affairs director Jayne Flores said.

"It's dead law now, there's no possibility of it being resurrected." she added.

The Supreme Court decision is the latest rebuttal of the pro-abortion law attempts.

In December last year, Governor Gurrerro vetoed the Guam Heartbeat Act 2022, which would have banned abortion at around six weeks of age.

"That law did pass even though a majority of people who testified at the public hearing on the law, testified against the measure so it was obvious that public opinion didn't want that law," Flores said.

"I think the message is there to lawmakers that the people of Guam want abortion to remain a personal, private decision between them and their physician…they do not want it legislated."

No abortion providers on Guam

Although abortion is legal in Guam (until after 13 weeks pregnancy), women seeking abortion pills are required by law to see an abortion doctor in person before they can get an abortion.

The law has effectively restricted women from legally getting an abortion in Guam as there are no abortion providers on the island - the last doctor offering abortion services having left the island in 2018.

In 2021, Guam's lower court had lifted the in-person consultation requirement, allowing two Guam-licensed physicians in Hawaii to prescribe abortion pills via phone or video appointment.

This was reversed on 8 August by an appellant court panel, meaning that women would have to make a costly 8-hour flight to Hawaii - just to get a prescription from the nearest abortion provider.

"It's about an 8-hour flight and about two thousand dollars, and many just can't afford to do that," Dr Shandhini Raidoo, one of the two Hawaii based physicians involved in the court case, said.

"It's heart-breaking to hear the stories of people who need abortion care but can't access because they can't leave the island…everyone should have access to the healthcare that they need," she said.

"Some of the people we took care of were young people trying to finish their education…a number of people also had medical conditions that made pregnancy dangerous."

At the heart of the dispute, is the social and political division regarding abortion.

It is exemplified by what looks like a clash of ideology between Guam's Governor and the Attorney General.

The vetoed Guam Heartbeat Act 2022, which had narrowly passed by 8 votes to 7, was also indication of how polarised the issue has been/

"Unfortunately, I would say this a very divisive issue," Senator Will Parkinson said.

"There's definitely a tension because the Attorney General who wants to bring back this ban on abortion and then you have this community who have fought tooth and nail to protect abortion access.

"Guam has a very strong catholic following here and so the influence of the church plays a very big part when people feel strongly against it, and I think there's also been a lot of misinformation about the abortion procedure.

"But I'm glad that justice prevailed in the end and the courts ruled the way they did," he added.