IN RE: REQUEST OF LOURDES A. LEON GUERRERO, I MAGAʼHÅGAN GUÅHAN, RELATIVE TO THE VALIDITY AND ENFORCEABILITY OF PUBLIC LAW NO. 20-134
Supreme Court Case No. CRQ23-001
IN THE SUPREME COURT OF GUAM
October 31, 2023
2023 Guam 11
Request for Declaratory Judgment Pursuant to Section 4104 of Title 7 of the Guam Code Annotated; Argued and submitted on July 25, 2023; Hagåtña, Guam
OPINION
I Magaʼhågan Guåhan:
Leslie A. Travis, Esq.
Jeffrey A. Moots, Esq.
Office of the Governor of Guam
Ricardo J. Bordallo Governor‘s Complex
Adelup, GU 96910
Appearing for Amici Curiae William S. Freeman, M.D.; Bliss Kaneshiro, M.D., M.P.H.; Shandhini Raidoo, M.D., M.P.H.; Famalao‘an Rights; and the American Civil Liberties Union:
Anita P. Arriola, Esq.
Arriola Law Firm
259 Martyr St., Ste. 201
Hagåtña, GU 96910
Vanessa L. Williams, Esq.
Law Office of Vanessa L. Williams, P.C.
GCIC Bldg.
414 W. Soledad Ave., Ste. 500
Hagåtña, GU 96910
Appearing for Respondent Attorney General of Guam:
Douglas B. Moylan, Esq.
Attorney General of Guam
Office of the Attorney General
ITC Bldg.
590 S. Marine Corps Dr., Ste. 801
Tamuning, GU 96913
Appearing for Respondent I Liheslaturan Guåhan:
Michael F. Phillips, Esq.
Phillips & Bordallo, P.C.
410 West O‘Brien Drive
Hagåtña, Guam 96910
Appearing for Amicus Curiae Robert Klitzkie:
Braddock J. Huesman, Esq.
Deborah E. Fisher, Esq.
Fisher Huesman P.C.
Core Pacific Bldg.
545 Chalan San Antonio, Ste. 302
Tamuning, GU 96913
Amicus Curiae Timothy J. Rohr, appearing pro se
TORRES, C.J.:
[1] In 2022, the Supreme Court of the United States issued a watershed decision in Dobbs v. Jackson Women‘s Health Organization, 597 U.S. ----, 142 S. Ct. 2228 (2022). Dobbs overturned decades of precedent, most significantly Roe v. Wade, 410 U.S. 113 (1973), which held that a woman‘s right to obtain an abortion was implicit in the Due Process Clause of the 14th Amendment. In the wake of Dobbs, states and territories are left to determine the legality of abortion without the constitutional shield provided by Roe.
[2] Guam is no exception. Earlier this year, the Attorney General of Guam, Douglas Moylan, filed in the District Court of Guam to revive Public Law 20-134, a 1990 law instituting a broad ban on abortion in Guam. P.L. 20-134 has been permanently enjoined since its passage because federal courts concluded it was unconstitutional. Guam Soc‘y of Obstetricians & Gynecologists v. Ada, 776 F. Supp. 1422, 1426 (D. Guam 1990), aff‘d, 962 F.2d 1366 (9th Cir. 1992), as amended (June 8, 1992). According to the Attorney General, since Roe is no longer good law, P.L. 20-134 should be enforceable. Besides opposing the Attorney General in federal court, Petitioner Lourdes A. Leon Guerrero, I Maga’hågan Guåhan (“the Governor”), filed a Request for Declaratory Judgment under
[3] We hold that P.L. 20-134 has been impliedly repealed by the Guam Legislature and no longer possesses any force or effect in Guam.
A. The Dispute
[4] In 1973, the U.S. Supreme Court declared criminalizing abortion in most instances violated a woman‘s constitutional right of privacy, implicit in the Due Process Clause of the 14th Amendment. Roe, 410 U.S. at 154, overruled by Dobbs, 597 U.S. at ----, 142 S. Ct. at 2242. In March 1990, the Guam Legislature passed P.L. 20-134, which was signed by Governor Joseph A. Ada. P.L. 20-134 contained a broad ban on abortion, establishing criminal penalties for: (1) any person, including medical professionals, providing or administering drugs or employing means to cause an abortion, (2) any woman soliciting and taking drugs or submitting to an attempt to cause an abortion, and (3) any person who solicits any woman to submit to any operation, or uses any means, to cause an abortion. Guam Pub. L. 20-134:3-5 (Mar. 19, 1990).
[5] Less than a week after P.L. 20-134 was passed, a complaint was filed in the District Court of Guam, alleging the law violated the First, Fourth, Fifth, Eighth, Ninth, Thirteenth, and Fourteenth Amendments to the
[7] The Dobbs decision overruled Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and decided the right to abortion is not protected by the
[8] As we have the authority to interpret Guam‘s laws and are “the final arbiter of questions arising through the jurisdiction of the courts of Guam,” Underwood v. Guam Election Comm‘n, 2006 Guam 17 ¶ 35, the Governor requested this court issue a judgment declaring: (1) P.L. 20-134 void forever, such that it cannot be revived following the reversal of Roe v. Wade, (2) that the Guam Legislature did not have the authority to pass P.L. 20-134 pursuant to the Organic Act, and P.L. 20-134 is therefore void ab initio and invalid, and (3) to the extent P.L. 20-134 is not void or otherwise unenforceable, it has been repealed by implication through subsequent changes in Guam law. Req. Declaratory J. at 25-26. We agreed to hear Questions 2 and 3. Order (Feb. 18, 2023). On March 24, 2023, the District Court of Guam denied the Attorney General‘s Motion to Dissolve the Permanent Injunction, finding he did not meet his burden that “changed
B. The Filings
[9] In our February 18, 2023 Order, we designated the Attorney General of Guam as a Respondent, having inferred he does not view P.L. 20-134 as void ab initio or having been impliedly repealed. Order at 6 (Feb. 18, 2023). We also recognized the Governor‘s Questions concerned the powers and authority of the Guam Legislature and invited the Legislature to participate as a Respondent. Id. Further, “[c]ognizant of the importance and salience of this issue to so many stakeholders on Guam,” we invited any party to file an amicus curiae brief. Id. The filings received and the positions taken are briefly summarized below.
1. The Governor
[10] The Governor contends P.L. 20-134 is void ab initio because the Guam Legislature was acting ultra vires, in violation of the Organic Act, when it passed the law. Alternatively, the Governor maintains P.L. 20-134 has been impliedly repealed by subsequent legislation regulating abortion care in Guam.
2. The Attorney General
[11] The Attorney General asks this court to dismiss the matter for lack of jurisdiction. In responding to the Governor‘s contentions, the Attorney General argues the Guam Legislature was not acting ultra vires when it passed P.L. 20-134. The Attorney General further asserts P.L. 20-134 was not impliedly repealed because P.L. 20-134 was not “in existence” when the subsequent statutes regulating abortion were passed. Finally, the Attorney General asks this court to order a referendum on the validity of P.L. 20-134.
[12] The Legislature argues that despite the law being unconstitutional when it was passed, P.L. 20-134 remains “on the books” until the Guam Legislature repeals or amends it. The Legislature agrees that whether P.L. 20-134 was impliedly repealed is a matter for this court to decide, though it declines to wade into this debate.
4. Amici supporting the Governor: William S. Freeman, M.D., Bliss Kaneshiro, M.D., M.P.H., Shandhili Raidoo, M.D., M.P.H., Famalao‘an Rights, and the American Civil Liberties Union
[13] Amici curiae William S. Freeman et al. are concerned with the First Amendment implications surrounding P.L. 20-134, as medical professionals may be prosecuted for advising patients about abortion as an option and the ability to obtain abortion care in Hawaiʻi. Amici Freeman et al. argue P.L. 20-134 was a legal nullity the moment it was passed, and, because the referendum required by section 7 of the law was a condition precedent that never occurred, the ban cannot be revived.
5. Amici supporting the Attorney General
a. Robert Klitzkie1
[14] Amicus Robert Klitzkie maintains this court should either dismiss the Petition because there is no constitutional standing or abstain from resolving the Governor‘s Questions. He argues that under this court‘s precedent, there is no jurisdiction to hear the case or issue an advisory opinion.
[15] In addition to his challenge to this court‘s jurisdiction under
II. JURISDICTION
[16] We have original jurisdiction over declaratory judgment actions regarding “the interpretation of any law, federal or local, lying within the jurisdiction of the courts of Guam to decide, and upon any question affecting the powers and duties of [I Maga’håga] and the operation of the Executive Branch, or I Liheslaturan Guåhan, respectively.”
[17] Yet, before we can address the merits of the Governor‘s request, several parties now challenge the jurisdiction of this court. Amicus Klitzkie argues the Governor fails to show she has suffered an injury in fact, and so this case must be dismissed based on our decision in In re A.B. Won Pat International Airport Authority, 2019 Guam 6 (“Airport Case”). Amicus Rohr alleges that the Governor‘s request does not concern a “matter of great public interest” as required by
[18] We have previously articulated that parties seeking to invoke this court‘s jurisdiction must generally show Article III standing. Benavente v. Taitano, 2006 Guam 15 ¶¶ 17-18 (noting that “state courts have observed that the traditional rules of standing apply” with limited exceptions). We have referred to these “traditional standing requirements” as “constitutional standing.” Airport Case, 2019 Guam 6 ¶ 16. Constitutional standing requires a party to show: “(1) it has suffered an ‘injury in fact’; (2) that the injury can be fairly traced to the challenged action taken by the defendant; and (3) that it is likely and beyond mere speculation that a favorable decision will remedy the injury sustained.” Id. ¶ 17 (quoting Guam Mem‘l Hosp. Auth. v. Superior Court, 2012 Guam 17 ¶ 10) (internal quotation marks omitted). Though this court is not an Article III court constitutionally bound to require parties to establish standing, we nevertheless have adopted “traditional standing requirements” based on Article III principals and “deriv[ed] guidance” from both state and federal courts. Guam Mem‘l Hosp., 2012 Guam 17 ¶ 9.
[19] This case presents the opportunity to further clarify the origin and role of standing in Guam jurisprudence. Though grounded in the U.S. Constitution‘s case-or-controversy requirement, in the federal system, “[t]he law of Art. III standing is built on a single basic idea—the idea of separation of powers.” TransUnion LLC v. Ramirez, 594 U.S. ----, 141 S. Ct. 2190, 2203 (2021) (quoting Raines v. Byrd, 521 U.S. 811, 820 (1997)). The role of the judiciary is limited: the doctrine of standing “prevents courts of law from undertaking tasks assigned to the political branches.” Lewis v. Casey, 518 U.S. 343, 349 (1996). “When the federal judicial power is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, [standing] implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III.” Flast v. Cohen, 392 U.S. 83, 96 (1968). Thus, “[f]ederal judicial power is limited to those disputes which confine federal courts to a rule consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.” Id. at 97.
[20] As the Constitution divides power separately and equally between three branches of federal government, so too does the Organic Act divide the branches of government in Guam. We find that this similarity in separation of power compels our independent judiciary to require standing to assert claims before our courts. Standing ensures the political branches do not abdicate their responsibility in setting the public policy for Guam. Furthermore, our authority is limited to “justiciable controversies and proceedings.”
[21] We are also aware that the Organic Act grants the Legislature the ability to expand this court‘s original jurisdiction by law.
The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of . . .
Government. Such problems arise, if at all, only from the substantive issues the individual seeks to have adjudicated. Thus, in terms of Article III limitations on . . . jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. It is for that reason that the emphasis in standing problems is on whether the party invoking . . . jurisdiction has ‘a personal stake in the outcome of the controversy,’ and whether the dispute touches upon ‘the legal relations of parties having adverse legal interests.’
Flast, 392 U.S. at 100-01 (first quoting Baker v. Carr, 369 U.S. 186, 204 (1962); and then quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937)). Because we are committed to a clear separation of powers, we will not use the “injury in fact” prong of constitutional standing to “undermine[] the separation of powers by invading the power of the legislature to create rights.” See Comm. to Elect Dan Forest v. Emps. Pol. Action Comm., 2021-NCSC-6, ¶ 56, 853 S.E.2d 698, 721. Where, as here, the case is presented in “an adversary context and in a form historically viewed as capable of judicial resolution,” we will reach the merits despite the lack of an injury in fact if the case does not “raise separation of powers problems related to improper judicial interference in areas committed to other branches of . . . Government.” See Flast, 392 U.S. at 100-01.
[22] To be clear, this is a narrow exception to the “traditional rules of standing,” see Benavente, 2006 Guam 15 ¶¶ 17-18, that cannot be invoked arbitrarily. Cf. People v. Tennessen, 2010 Guam 12 ¶ 24 (per curiam) (“Thus, in an abundance of caution, and in the spirit of judicial transparency, this panel will pass on the standing issue and address the merits of Moylan‘s requests for disqualification.“). Rather, we will look to established doctrines in American jurisprudence where courts have found it justifiable to rule despite a lack of an injury in fact. New Mexico provides a notable example. Though there is no constitutional provision requiring Article III-like standing, New Mexico state courts have “long been guided by the traditional
[23] We find this exception is consistent with Guam jurisprudence as well. In our earliest cases dealing with this statute, we commented that
[24] We hold that where the Legislature or the Governor has satisfied the jurisdictional requirements of
[25] Having determined the lack of an injury in fact is not fatal to our ability to adjudicate this matter, we next turn to whether the statutory requirements of
[T]o pass jurisdictional muster, a party seeking a declaratory judgment must satisfy three requirements: (1) the issue raised must be a matter of great public importance; (2) the issue must be such that its resolution through the normal process of law is inappropriate as it would cause undue delay; and (3) the subject matter of the inquiry is appropriate for section 4104 review.
In re Request of Gutierrez, 2002 Guam 1 ¶ 9. In our February Order, we determined the statutory requirements were met for two of the three questions posed by the Governor. Order at 5 (Feb. 18, 2023). We stand by the analysis in that Order and shall only summarize here.
[26] “[P]ublic interest . . . signifies an importance of the issue to the body politic, the community, in the sense that the operations of the government may be substantially affected one way or the other by the issue‘s resolution.” In re Request of Leon Guerrero, 2021 Guam 6 ¶ 15 (alterations in original) (quoting In re Request of Gutierrez, 2002 Guam 1 ¶ 26). “[T]he issue presented must be significant in substance and relate to a presently existing governmental duty borne by the branch of government that requests the opinion.” In re Request of Gutierrez, 2002 Guam 1 ¶ 26 (citation omitted). Whether P.L. 20-134 is a valid, viable law will substantially affect the operations of the Legislature, the Governor and subordinate agencies, and the Judiciary. The impact these Questions have on the executive branch is particularly notable, as agencies charged with the enforcement of this legislation may arrest individuals for engaging in certain conduct—resulting in significant consequences.
[27] Amicus Rohr argues since so few abortions happen in Guam, the matter of abortion is not of “great public interest,” so jurisdiction is wanting. Rohr Br. at 4. There are three problems with his contention. First, although we find it unnecessary to reach on other grounds, the ultra
[28] The second statutory requirement for declaratory judgments is that the normal process of law could cause undue delay. The pending appeal in the federal courts creates great uncertainty on when the federal injunction of P.L. 20-134 will be fully resolved. The Governor‘s implied-repeal Question is purely a matter of local Guam law over which this court is the final authority. We find this requirement is met.
[29] That leaves only the appropriate-subject-matter prong, which is easily satisfied. To determine whether the subject matter is appropriate, we have stated that requests for declaratory relief must ask this court for “(1) an interpretation of an existing law that is within its jurisdiction
[30] Thus, the ultra vires and implied-repeal Questions meet the test imposed by section 4104, which confers jurisdiction on this court to provide declaratory relief.
C. The Attorney General‘s Motion to Dismiss
[31] Before turning to the merits of the Governor‘s Questions, there is one other issue to address: the Attorney General‘s Motion to Dismiss. In his Motion, the Attorney General argues this court “lack[s] subject matter jurisdiction because the injunction [on P.L. 20-134] remains, and the questions [posed by the Governor] are not ripe and/or moot at this time.” Mot. Dismiss at 3. He also claims the Petition no longer presents a “case or controversy” for this court to adjudicate. Id. at 5. Nowhere does the Attorney General mention the typical standing requirements of injury in fact, traceability, and redressability. In any event, any issues about
[32] This leaves the argument that the Governor‘s Petition is not “ripe and/or moot.” Id. at 3. “‘[R]ipeness is peculiarly a question of timing.’ ‘[I]ts basic rationale is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements.’” Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985) (alterations in original) (citations omitted). The Governor‘s Questions are pure questions of law, and there is no need for further facts to develop. It would be inconsistent to say that not answering the Governor‘s Questions would lead to an undue delay yet declare the matter not ripe for judicial review. Any ripeness concerns have already been resolved with finding the undue delay requirement has been met.
[33] Finally, this matter is not moot. Cases generally become moot “when the issues are no longer live or the parties lack a legally cognizable interest in the outcome.” Town House Dep‘t Stores, Inc. v. Ahn, 2000 Guam 32 ¶ 9 (quoting United States v. Ripinsky, 20 F.3d 359, 361 (9th Cir. 1994)). “[I]ntervening events or changed circumstances that make it impossible for a reviewing court to grant the complaining party effectual relief will render a case moot.” Linsangan v. Gov‘t of Guam, 2020 Guam 27 ¶ 30 (per curiam) (alteration in original) (citation omitted). However, “[t]he mootness doctrine is ‘flexible and discretionary; it is not a mechanical rule that we invoke automatically.’” In re Guardianship of Ulloa, 2014 Guam 32 ¶ 39 (quoting In re Guardianship of Tschumy, 853 N.W.2d 728, 737 (Minn. 2014)). We have “authority to decide cases that are technically moot when those cases are functionally justiciable and present important questions of [islandwide] significance.” Id. (quoting Tschumy, 853 N.W.2d at 737).
III. STANDARD OF REVIEW
[34] “For cases brought before this court pursuant to our original jurisdiction, all issues are determined in the first instance.” In re Request of Leon Guerrero, 2021 Guam 6 ¶ 20 (quoting In re Request of Camacho, 2006 Guam 5 ¶ 12).
IV. ANALYSIS
[35] With the jurisdictional issues resolved, we now turn to the merits of the Governor‘s request. As the Governor presents her Questions in the alternative, Pet‘r‘s Br. at 38, we reach only the implied-repeal argument.4 See Barrett-Anderson v. Camacho, 2018 Guam 20 ¶ 30 (“[W]here statutes can be construed to avoid constitutional questions, this court will not answer the question of constitutionality or organicity.“).
[36] The Governor posits that in the years since the District Court of Guam enjoined P.L. 20-134, the Guam Legislature has passed several laws forming a comprehensive statutory scheme covering abortion in Guam, which is irreconcilably in conflict with P.L. 20-134. Pet‘r‘s Br. at 30. Because P.L. 20-134 cannot be harmonized with subsequent legislation, the Governor argues P.L. 20-134 has been repealed by implication. Id. at 29.
[37] “Implied repeals can be found in two instances: ‘(1) where provisions in the two acts are in irreconcilable conflict,” or ‘(2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute.’” Sumitomo Constr., Co. v. Gov‘t of Guam, 2001 Guam 23 ¶ 16 (quoting People v. Quinata, No. CR-81-0004A, 1982 WL 30546, at *2 (D. Guam App. Div. June 29, 1982)); see also Nat‘l Ass‘n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 662-63 (2007) (“We will not infer a statutory repeal ‘unless the later statute “expressly contradict[s] the original act” or unless such a construction ‘is absolutely necessary in order that [the] words [of the later statute] shall have any meaning at all.” (alterations in original) (quoting Traynor v. Turnage, 485 U.S. 535, 548 (1988))).
[38] Repeals by implication are generally disfavored, and courts “must try to read the [apparently conflicting] statutes in a harmonious manner.” People v. Reselap, 2022 Guam 2 ¶ 54; see also Sumitomo Constr., 2001 Guam 23 ¶ 16 (“Courts can avoid a finding of implied repeal if the two statutes can be reconciled.”). In considering whether a later statute repealed an earlier statute, the tenets of statutory construction direct the analysis to first look at the plain meaning to resolve apparent conflicts and contradictions. Reselap, 2022 Guam 2 ¶ 54. “It is a cardinal rule of statutory construction that courts must look first to the language of the statute itself. Absent clear legislative intent to the contrary, the plain meaning prevails.” Sumitomo Constr., 2001 Guam 23 ¶ 17 (citations omitted). “Whenever a court is confronted with apparently conflicting legislation, its goal is to ascertain the intent of the legislative body and construe the law accordingly. In determining the legislature‘s intent . . ., our first resort is to the language of the statute itself.” Karlin v. Foust, 188 F.3d 446, 470 (7th Cir. 1999) (citations omitted).
[39] The Governor contends the Parental Consent for Abortion Act (“PCAA”) codified in
[40] The Attorney General responds by arguing that P.L. 20-134 did not impliedly repeal subsequent legislation because P.L. 20-134 “did not exist” after the injunction in 1990. Resp‘t Att‘y Gen. Br. at 26 (Apr. 21, 2023). He asserts the Guam Legislature passed the four subsequent abortion statutes in an attempt to “restrain abortions as much as they could because they knew that the Courts stopped their earlier attempt to make abortions illegal altogether.” Id. at 28. The Attorney General maintains the four statutes do not form a regulatory scheme for abortion in Guam because when the statutes were passed, P.L. 20-134 did not exist. Id. at 38-39. His arguments here contradict what he filed in the District Court of Guam, where the Attorney General‘s Office wrote that “P.L. 20-134 did indeed conflict with the subsequently enacted legislation.” Civ. Case No. 90-00013 (Att’y Gen. Reply to Pl. Opp‘n Vacate Inj. at 3 (Mar. 7, 2023)).
1. Current Guam laws regulating abortion
[41] The Governor argues four statutes—the PCAA, the HIA, the PBABA, and the Reporting Law—irreconcilably conflict with
[42] The PCAA gives guidance on consent, specifically regarding pregnant minors. This statute permits the performance of abortion on a minor if consent is received from the minor and a legal guardian.
[43] The HIA elaborates on consent in the abortion context, requiring voluntary and informed consent before any abortion procedure.
[45] Finally, the Reporting Law requires an abortion and post-abortion care report to be completed and shared with the Office of Vital Statistics of DPHSS.
2. Other jurisdictions addressing implied repeal in the abortion context
[46] Following both Roe and Dobbs, jurisdictions around the United States have had to confront implied repeal. The position Guam is now in is analogous to both past and ongoing cases in other courts.
a. Jurisdictions finding implied repeal
[47] In McCorvey v. Hill, the Fifth Circuit addressed a comparable situation and concluded that Texas statutes criminalizing abortion had been repealed by implication, as Texas regulated abortion “in a number of ways.” 385 F.3d 846, 849 (5th Cir. 2004). The state had established a comprehensive set of civil regulations governing the availability of abortion for minors, the practices and procedures of abortion clinics, and the availability of state-funded abortions. Id. The Fifth Circuit determined the existing regulatory provisions could not be harmonized with provisions that purport to criminalize abortion:
There is no way to enforce both sets of laws; the current regulations are intended to form a comprehensive scheme—not an addendum to the criminal statutes struck down in Roe. . . . “[I]t is clearly inconsistent to provide in one statute that
abortions are permissible if set guidelines are followed and in another provide that abortions are criminally prohibited.”
Id. (quoting Weeks v. Connick, 733 F. Supp. 1036, 1038 (E.D. La. 1990)).
[48] In Smith v. Bentley, the United States District Court for the Eastern District of Arkansas considered whether certain abortion statutes had been impliedly repealed. 493 F. Supp. 916, 923-24 (E.D. Ark. 1980) (per curiam). The court noted that the statutes had both similarities and distinctions, though notably, the regulatory scheme for the performance of legal abortions was “the most significant difference.” Id. at 924. Therefore, the court found the statute criminalizing abortion had been impliedly repealed. Id.
[49] The ACLU, arguing a similar position as the Governor does here, convinced a state circuit court to grant a preliminary injunction on a West Virginia “Criminal Abortion Ban.” Women‘s Health Ctr. of W. Va. v. Miller, No. 22-C-556, slip op. (W. Va. Cir. Ct. July 20, 2022). The court determined that following Roe, the West Virginia Legislature enacted a comprehensive statutory framework, setting forth the circumstances under which an abortion may be lawfully obtained and addressing patient consent, parental notification, state funding, and state reporting. Id. at 5-6. The court found this regulatory scheme irreconcilably conflicted with the Criminal Abortion Ban. Id. at 5. Following this ruling, state lawmakers met to “clarify and modernize” the old ban. Campbell Robertson, West Virginia Passes Strict Abortion Ban, N.Y. TIMES (Sept. 13, 2022), https://www.nytimes.com/2022/09/13/us/west-virginia-abortion.html.
b. Jurisdictions finding no implied repeal
[50] An Arizona Court of Appeals found no implied repeal between a statute permitting physicians to perform elective abortions and a statute prohibiting any abortion after fifteen weeks. Planned Parenthood Ariz., Inc. v. Brnovich, 524 P.3d 262, 264 (Ariz. Ct. App. 2022).
[51] In People v. Higuera, the Michigan Court of Appeals found no implied repeal between a statute, which by its express terms prohibited all abortions unless necessary to save the mother‘s life, and subsequent legislative enactments about parental consent, informed consent, the prohibition of partial-birth abortions, and record keeping. 625 N.W.2d 444, 448 (Mich. Ct. App. 2001). The court held that, in enacting the later statutes, the legislature had the clear intent to regulate abortions permitted by Roe and did not intend to repeal the general prohibition of abortions. Id. at 448-49.
3. Subsequent legislation has impliedly repealed P.L. 20-134
[52] Turning back to this case, the Governor argues that provisions in subsequently enacted legislation are in irreconcilable conflict with
[53] Similar to McCorvey and Higuera, the statutes here govern consent, the availability of abortion for minors, and the practices and procedures of abortion clinics. The McCorvey and Higuera courts came down on opposite sides of implied repeal. The difference of decisions is based upon factual distinctions between the two cases. These distinctions illuminate the analysis of our four Guam statutes. In Higuera, the court was not considering the constitutionality of a statute that criminalized all abortions at any time during pregnancy but was narrowly focused to consider whether a particular criminal prosecution under the statute would be constitutionally infirm. 625 N.W.2d at 447. While the validity of
[55] We determine that persuasive authority favors finding
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[56] The Attorney General also argues that Guam‘s legislation governing abortion care cannot impliedly repeal
B. We Decline to Address the Ultra Vires Question
[57] Having answered the implied-repeal Question, we do not believe it necessary to answer the ultra vires Question now.
[58] Guam‘s statute is far more similar to Florida‘s than Massachusetts‘s. Our statute reads: “[I Maga‘håga], in writing . . . may request declaratory judgments from the Supreme Court of Guam. . . . The declaratory judgments may be issued only where it is a matter of great public interest and the normal process of law would cause undue delay.”
[59] The implied-repeal Question is one purely of local Guam law over which this court is the final authority. As the Governor presents her Questions in the alternative, we reach only the implied-repeal argument. Pet‘r‘s Br. at 38. This is because the ultra vires Question concerns the Organic Act, and we will not answer the question of organicity unless it has “inescapably come before us for adjudication.” Barrett-Anderson, 2018 Guam 20 ¶ 30 (quoting United States v. Rumely, 345 U.S. 41, 48 (1953)). Having resolved this case using only local law, we decline to address the ultra vires Question.
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[60] Dobbs was a landmark case, changing the law on the ability of governments to regulate abortion. Yet this case is not really about Dobbs; it is far more local in character. In answering the implied-repeal Question, we dealt only with statutory interpretation of local law. It is up to the political branches of government to set the policy for Guam. This court, however, interprets the law as enacted. In reviewing the Legislature‘s enactments, there is only one conclusion:
[61] We enter this declaratory judgment:
/s/
ROBERT J. TORRES
Chief Justice
/s/
JOHN A. MANGLONA
Justice Pro Tempore
[62] I agree with the majority on its jurisdictional analysis and its conclusion that
I. P.L. 20-134 Was Void Ab Initio, and Passing It Was an Ultra Vires Act
[63] The Organic Act was clear in 1990: “The legislative power of Guam shall extend to all subjects of legislation of local application not inconsistent with the provisions of this chapter and the laws of the United States applicable to Guam.”8
[64] Caselaw provides support for this position. This court has noted as far back as 2002 that “[a]n unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” In re Request of Gutierrez, 2002 Guam 1 ¶ 17 (quoting In re Op. of the Justs., 168 N.E. 536, 538 (Mass. 1929)).9 In Nelson v. Ada, another relevant case, the then-Governor of Guam sought to remove two school board members. 878 F.2d 277, 278 (9th Cir. 1989). According to the Governor, only he could appoint school board members per the Organic Act. Id. Notably, Congress amended the Organic Act prior to the Governor removing the school board members, and this amendment could have potentially allowed for elected school board members, rather than gubernatorial appointments. See id. at 278, 280. Still, the court held the change in the Organic Act should not be looked at retroactively. Id. at 280-81. Despite the framework of the Organic Act perhaps changing, the court was concerned with the state of the law as it existed when the school board members were first appointed. Thus, even when potential changes occur affecting the framework of the local government of Guam, the analysis is the state of the law when legislative action was first taken, not the date of the latest judicial action.
II. Neither the Attorney General nor the Legislature Provide a Convincing Response
[66] Neither the Attorney General nor the Legislature offers a convincing rebuttal to the Governor‘s and Amici Freeman et al.‘s argument above. I address each party‘s position.
A. The Attorney General
[67] First, the Attorney General argues that finding
[68] The Attorney General next argues that finding the passage of
[69] The Attorney General goes on to ask, “how would the Senators know a bill is void because it‘s ‘unconstitutional,’ before that bill is tested” in the courts? Resp‘t Att‘y Gen. Br. at 14. Such a question reflects a misunderstanding of the role of courts. Courts are not the only actors who can judge whether a statute is constitutional. The Attorney General himself seems to acknowledge just this in his implied-repeal argument, where he contends the Guam Legislature did not pass more restrictive bans on abortion because such attempts would be “futile.” Id. at 26. Members of the Guam Legislature swear an oath requiring them to “well and faithfully support the Constitution of the United States [and] the laws of the United States applicable to Guam.”
[71] Next, the Attorney General invokes the Speech and Debate Clause of the Organic Act to argue this court lacks the power to declare
[72] Finally, the Attorney General asserts declaring
[73] The Attorney General maintains this doctrine would forever deprive the people of Guam of a valid law; it “would destroy [a] public law forever.” Id. at 23-24. True, a finding that
B. The Legislature
[74] The Legislature‘s first argument borrows the reasoning from an influential law review article, The Writ-of-Erasure Fallacy. Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 VA. L. REV. 933 (2018). In his article, Professor Jonathan Mitchell posits that “[j]udicial review is a non-enforcement prerogative, not a revisionary power over legislation. . . . [E]verything in the statute remains available for future courts to enforce if they reject or overrule the previous court‘s decision.” Id. at 983. I can set aside the merits of Professor Mitchell‘s position for this case, as it does not change the outcome. By his article‘s terms, the professor was only addressing the power of federal courts. E.g., id. at 936 (“The federal courts have no authority to erase a duly enacted law from the statute books, and they have no power to veto or suspend a statute.“). Professor Mitchell carves out a separate analysis for state courts. See id. at 953
[75] The Legislature‘s reliance on Ramsey v. Chaco, 549 F.2d 1335 (9th Cir. 1977) (per curiam), is also misplaced. There, the Ninth Circuit held that a law passed by the Guam Legislature was inconsistent with the Organic Act. Ramsey, 549 F.2d at 1338. At the time the law was passed, all Guam laws were reported to the U.S. Congress, which had a year to nullify the local laws. Id.. Because Congress had not acted, the Ninth Circuit held the law was approved, despite any potential conflict with the Organic Act. Id.. The Legislature argues that this result could not have been reached if the correct analysis is to hold inorganic laws as void ab initio. Resp‘t Legislature Br. at 10-11 (Mar. 31, 2023).
[76] This is a misreading of Ramsey. First, the Ninth Circuit never ruled the law at issue inorganic. Ramsey, 549 F.2d at 1338. Second, the whole basis for the decision was that it was Congress that approved the law. There is no question that Congress may amend the Organic Act and, by so doing, change what is and is not organic. Because it had this congressional review method at the time, the Organic Act effectively allowed for passive amendments. Put another way, at the time of Ramsey, local laws were inorganic only if Congress declared them to be. Otherwise, Congress would deem local action to be a proper use of power delegated to the local government. This was no longer the case by the time of
[77] Finally, the Legislature‘s argument that the lack of a “hammer clause” renders the language “[t]he legislative power of Guam shall extend to all rightful subjects of legislation not inconsistent with the provisions of this Act and the laws of the United States applicable to
III. Webster Did Not Open the Door to P.L. 20-134
[78] During oral argument, Amicus Rohr suggested that
[79] First, it was unreasonable to conclude that Webster opened the door to broader abortion restrictions. Webster concerned challenges to the constitutionality of four provisions of a Missouri abortion law: (1) the preamble of the law, declaring the public policy of the state to be that life begins at conception; (2) a prohibition on the use of public facilities or employees to perform abortions; (3) a prohibition on public funding of abortion counseling; and (4) a requirement that physicians conduct viability tests prior to performing abortions. 492 U.S. at 504.
[81] Moving to the use of public facilities, the Court reaffirmed its principle that “the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” Id. at 507 (quoting DeShaney v. Winnebago Cnty. Dep‘t of Soc. Servs., 489 U.S. 189, 196 (1989)). Thus, the 14th Amendment and Roe v. Wade were not implicated by this portion of the state law at issue. Id. at 509-10.
[82] The plaintiffs argued the ban on public funding of abortion counseling did not apply to them, eliminating the case or controversy before the Court. Id. at 512. The Court was unanimous in directing “the Court of Appeals to vacate the judgment of the District Court with instructions to dismiss the relevant part of the complaint.” Id. at 512-13.
[83] The final provision—that physicians conduct viability tests for fetuses at least 20 weeks old—proved the most controversial. Under Roe, a state could broadly regulate abortion only after the fetus was viable. Id. at 516 (citing Roe, 410 U.S. at 165). In Webster, the Court allowed a regulation requiring viability tests, knowing “the tests will undoubtedly show in many cases that the fetus is not viable.” Id. at 519. This meant the regulation increased the expense and effort of obtaining an abortion before viability, prior to the point at which the state could broadly regulate abortion. Id. A plurality of the Court reasoned this result was acceptable since the regulation‘s intent was to determine whether the fetus was viable—the point where the state may protect the fetus‘s interests. Id. at 519-20. It was only this part of Roe, its “rigid[ity]” in the
[84] In Part III of Webster, a plurality of the Court noted the case before it did not require overturning Roe since Roe dealt with a complete abortion ban compared to the narrow regulations at issue in that case. Id. In a concurrence, Justice Scalia asserted the Court effectively overruled Roe in its viability-testing section and should have explicitly done so. Id. at 532 (Scalia, J., concurring). Combining Justice Scalia‘s concurrence with Part III of the Opinion is the best place to argue the Court was announcing the end of Roe. Yet, that is not the whole story. The crucial fifth vote for holding the viability testing unconstitutional was Justice O‘Connor. In her concurrence, she argued Webster did not implicate Roe, and any analysis of Roe was unnecessary. Id. at 525-26 (O‘Connor, J., concurring). Thus, only one justice of the Court (Scalia) stated explicitly that Roe should be overturned, three justices (Chief Justice Rehnquist and Justices White and Kennedy) felt only a small narrowing was needed, one justice (O‘Connor) felt Roe was inapplicable, and four justices, though believing Roe was implicated, argued for Roe‘s continuing application. There are thus no grounds to argue that Webster substantially changed the law on abortion generally.
[85] Second, it is beyond apparent that the 20th Guam Legislature was put on notice of the legality of
The Attorney General gave as the legal opinion of her office that both bills were “violative of a woman‘s constitutional right of privacy as enunciated by the United States Supreme Court in Roe v. Wade.” The Attorney General noted that a “state cannot interfere with a woman‘s right of personal privacy to decide to have an abortion whatever the cause of her pregnancy. The state may regulate such a decision, but it cannot deprive a woman of such a choice.” Because both bills effectively proscribed abortion, the Attorney General gave as her legal opinion that “both bills would be held unconstitutional.”
Id. (quoting Att‘y Gen.‘s Op. at 1-4). Unquestionably, there existed a right to an abortion under the U.S. Constitution in the 1990s, and
[86] Third and finally, there is no need to speculate on what the constitutional status of
[87] The Organic Act, as it existed in 1990, clearly limited the power of the Guam Legislature to only pass legislation consistent with the U.S. Constitution. When it was passed,
[88] Holding
[89] Because I would find
/s/
F. PHILIP CARBULLIDO
Associate Justice
Notes
Id. ¶¶ 54, 57. In distilling “traditional” standing principles from Article III, we are not bound by Lujan; we may also find guidance in the Court‘s “attempt to expand standing under the injury-in-fact test announced in [Ass‘n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970)], and the adoption of a pragmatic and functional approach to the question in [Baker v. Carr, 369 U.S. 186 (1962)], and [Flast v. Cohen, 392 U.S. 83 (1968)].” See id. ¶ 51.In 1992, with an opinion written by Justice Scalia, the Supreme Court dramatically altered the law of standing in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), when the Court held for the first time that plaintiffs had no standing to bring suit under a congressional statute authorizing suit because they lacked “injury in fact.” . .
[T]he very notion of a standing requirement under Article III only arose in the twentieth century. . . For most of the twentieth century, standing existed where there was invasion of a legal right under the common law, a statute, or the Constitution. The Supreme Court long emphasized a functional and pragmatic approach to the question of standing, focused on “concrete adverseness,” generally limiting this concern to constitutional questions, and significantly expanded the categories of claims that could support standing. However, that expansion was reversed, first in the context of taxpayer and citizen suits and, later with the adoption of an “injury in fact” requirement, which has been increasingly used to constrain access to federal courts even where a statute creates a right to sue. Ultimately the Court adopted a restrictive interpretation of injury-in-fact that applied its substantially tightened requirements for standing to attack the constitutionality of acts of the other branches based on taxpayer or citizen standing beyond that context to rights actually created by Congress.