As states and territories across the United States address abortion access in the aftermath of Dobbs v. Jackson Women’s Health Organization, Guam faces several legal battles. The United States Appeals Court for the Ninth Circuit upheld Guam’s Women’s Reproductive Health Information Act of 2012, ruling that the Informed Consent Requirement did not violate the Constitution. The law requires in-person consultation with a doctor, who then provides information on the abortion procedure, abortion alternatives, and other medical information. Then, the woman must voluntarily consent to the procedure after a 24-hour waiting period, certifying in writing that they have received materials and gone through a checklist.
Guam already has limited access to abortion, as the nearest physician willing to prescribe the medication lives in Hawaii, an eight-hour flight away from Guam. The last doctor who performed abortions in Guam retired in 2018, meaning women in Guam who want an abortion must undergo a medication abortion, which involves medicines usually prescribed through telemedicine or virtual appointments. Guam allows abortions in the first 13 weeks of pregnancy or in the first 26 weeks in cases of rape, incest, grave fetal defects, or serious health risks. The territory has an anti-abortion streak, as 85% of Guanamanians are Catholic. The two doctors in Hawaii who are certified to perform abortions in Guam sued the territory in 2021, arguing that no rational government interest supported the law and that the law placed an undue burden on abortion-seeking patients. By upholding the in-person informed consent requirement, many women in Guam will not be able to obtain abortions as they cannot meet with doctors and obtain prescriptions.
Judge Kenneth K. Lee wrote for a unanimous three-judge panel, arguing, “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.” The three panel members were all appointed by Republican presidents: former President Donald Trump appointed Lee and Judge Daniel P. Collins, while former President George W. Bush appointed Judge Carlos T. Bea. The appellate court ruled that Guam can require an in-person consultation because it has a “legitimate governmental interest of safeguarding fetal life” and because women might be more likely to decide against an abortion during the 24-hour period and consultation. Lee continued, “In the more solemn context of a face-to-face meeting—unlike a Zoom call—a pregnant woman may decide against an abortion after having a candid conversation at the clinic about the gestational age of her fetus and concluding that the fetus represents human life.”
The court’s ruling rebutted concerns that the in-person informed consent requirement violated the Fourteenth Amendment’s Due Process Clause because “it furthers Guam’s legitimate governmental interests in preservation of potential life, protection of maternal health, and promotion of the integrity of the medical profession.” Lee also highlighted that the Dobbs decision left the issue of abortion access to the states and territories to decide, with Guam choosing to enact laws that limit abortion. He wrote, “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.’ […] Guam can enact laws that it believes are best for its people, even if some people might strenuously oppose such laws or think them unwise. ”The Ninth Circuit is expected to hear another abortion challenge from Guam, as Attorney General Douglas Moylan (R) is asking the courts to reinstate a 1990 law that banned abortions with exceptions to save a woman’s life or prevent serious health dangers. A United States District Court in Guam blocked the law from being enforced in 1992, citing Roe v. Wade. Another district court declined to reinstate the law recently after Dobbs overturned Roe last year, leading Moylan to appeal. The Guam legislature passed a bill last year to prohibit most abortions after six weeks of pregnancy, though Governor Lou Leon Guerrero (D) vetoed the bill. Court cases involving abortion access and abortion bans continued to play out in the aftermath of Dobbs. Guam is certain to face more litigation, though federal judges are increasingly following what “the Supreme Court has instructed,” that “abortion policy is best left to the people’s representatives.”
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