HONOLULU — Guam’s attorney general said a 1990 law that prohibited virtually all abortion is invalid and won’t take effect even though the U.S. Supreme Court last month overturned the national right to abortion outlined in Roe v. Wade, the landmark case that legalized abortion nationwide.
That means the status quo allowing women to obtain abortions via telemedicine may continue in the predominantly Catholic U.S. territory in the Pacific.
Attorney General Leevin Taitano Camacho issued his opinion last week in response to questions from senators as to whether the overturning of Roe v. Wade would affect the 1990 law.
That law made it a felony for a doctor to perform abortion except to save a woman’s life or prevent grave danger to her health. The U.S. District Court on Guam blocked it from being enforced in 1992, citing Roe v. Wade. The 9th U.S. Circuit Court of Appeals upheld this ruling.
Camacho told senators in a memorandum the 1990 law violated the U.S. Constitution and the Organic Act of Guam. He said the Legislature didn’t have the power to pass it in the first place, rendering it void.
Instead, abortion on Guam continues to be governed by a 1978 law allowing abortion in the first 13 weeks of pregnancy. This law also allows the procedure up to 26 weeks in the case of rape or incest, if a child would be born with a grave physical or mental defect or if there’s a substantial risk the pregnancy could endanger the life or health of the mother.
In practice, however, the last Guam physician to perform surgical abortions retired in 2018. That means the only way for people to legally obtain abortions without leaving the island is to take pills sent through the mail. This is generally only possible through 10 or 11 weeks gestation.
Traveling to get an abortion is particularly onerous for Guam’s residents as the island is 3,800 miles (6,100 kilometers) west of Hawaii, the nearest U.S. state where the procedure is legal.
A 2012 Guam law also required those getting abortions to be provided with information about the procedure in person 24 hours beforehand.
A judge in September issued an injunction against that provision, saying the information could be provided via live face-to-face videoconference instead.
Guam’s attorney general on June 28 asked the 9th Circuit to reverse this injunction, citing the Supreme Court’s overturning of Roe v. Wade and related precedents.
Alexa Kolbi-Molinas, the deputy director of the ACLU Reproductive Freedom Project, said she hopes the appeals court will keep the injunction.
“But even if that injunction is lifted, it is important to remember that telemedicine abortion will remain legal in Guam,” she said in an email. “And we will keep fighting to lift burdensome, and medically unnecessary obstacles that make it more difficult for people to get the care they need.”
Camacho told lawmakers in his memorandum that after the overturning of Roe v. Wade, it was up to the Legislature and not the courts to decide whether to allow or limit abortion. He said the Legislature could “forge its own path” on the matter.
Even before the high court’s ruling, Guam’s legislature was debating a bill that would ban abortion once cardiac activity is detected, usually around six weeks.
Sen. Mary Camacho Torres, one of the senators who asked the attorney general for his opinion, said she would back new abortion legislation only if lawmakers put the question directly before Guam’s voters.
Torres said in an email she “will not support any measure to restrict or expand abortion procedures on Guam unless it has a referendum requirement attached to it.”