75 F.4th 1115
9th Cir.2023Background
- Guam law (10 Guam Code Ann. § 3218.1) requires an in-person informed-consent meeting at least 24 hours before an abortion, during which certain medical and social-service information must be disclosed by the performing physician or a "qualified person."
- The statute permits a "qualified person" (psychologist, licensed social worker, licensed professional counselor, registered nurse, or physician) to deliver the required in-person disclosures.
- Since 2018 no physician in Guam performs abortions; medication abortions are provided to Guam patients via telemedicine by off-island Guam-licensed physicians.
- Plaintiffs (two Guam-licensed OB/GYNs based in Hawaii) sought to provide telemedicine medication abortions to Guam patients and challenged the in-person requirement as unconstitutional; they moved for a preliminary injunction.
- The district court enjoined enforcement under Casey's undue-burden standard; the Ninth Circuit vacated that preliminary injunction after Dobbs, applying rational-basis review and upholding Guam’s statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper standard of review for abortion regulations post-Dobbs | Roe/Casey undue-burden standard still protects abortion access | Dobbs eliminated undue-burden test; abortion laws are subject to rational-basis review | Dobbs governs; rational-basis review applies to Guam's law |
| Validity of in-person informed-consent requirement (Due Process) | Requirement burdens access, especially given telemedicine provision and no on-island abortionists | Guam has legitimate interests (protecting fetal life, maternal health, medical-profession integrity); in-person meetings are rationally related | Law survives rational-basis review; preliminary injunction unlikely to succeed on merits |
| As-applied claim: risk that non-medical agents will give medical disclosures | Because no on-island abortionists perform procedures, non-physicians may be the ones to provide medical disclosures, undermining informed consent | Statute sets minimum disclosures and allows telemedicine treating physicians to provide additional information; qualified agents are permitted and doctors may select appropriate agents | As-applied challenge fails; statute does not prevent physicians from supplementing disclosures and bears a rational relation to state interests |
| Equal protection: differential treatment of abortion providers vs. other medical providers | Treating abortion telemedicine providers differently from other telemedicine providers is irrational and discriminatory | Abortion is different (it terminates potential life); legislature may rationally treat abortion differently | Equal protection challenge fails under rational-basis review |
Key Cases Cited
- Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (overruled Roe/Casey and held abortion regulations are generally reviewed under rational basis)
- Roe v. Wade, 410 U.S. 113 (1973) (previously recognized a constitutional right to abortion)
- Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (announced the undue-burden standard for abortion restrictions)
- FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) (explained the deferential nature of rational-basis review and burden on challengers)
- Nordlinger v. Hahn, 505 U.S. 1 (1992) (described rational-basis test for legislation challenged under equal protection)
- Heller v. Doe, 509 U.S. 312 (1993) (reaffirmed rational-basis deferential review for legislative classifications)
- United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001) (rational-basis analysis for classifications)
- Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) (standard for vacating a preliminary injunction)