Where does Guam's abortion laws stand today? It's the question raised during a hearing held before justices in the Supreme Court of Guam. The arguments today are over the validity of a local 1990 abortion law that at the time was deemed unconstitutional.  The overturning of Roe v. Wade last year led to the law resurfacing.

A decades-old abortion ban law is once again in the spotlight. "Is the 1978 abortion law still valid? Is Public Law 20-134 revived and in effect? Not very many people know that. Even the Guam Legislature does not seem to know what that law is," noted Attorney Anita Arriola. Aamong the handful of lawyers arguing before justices in the Supreme Court of Guam today.

Arriola and the American Civil Liberties Union fought and won to permanently block the law in 1990. The law was never enforced due to Roe v. Wade, which was overturned in June 2022. 

"We do know there is an inconsistency and an inherent difficulty of knowing, which law applies now when the chief legal officer is saying the law is revived and the governor is saying no. That is an injury because the people of Guam don’t know what law applies," she added.

The hearing today was held after Guam’s attorney general, Doug Moylan, requested the high court allow a referendum as the law mandates – a vote for the people to decide if abortion should be illegal on the island.

Justice F. Philip Carbullido suggesting the issue should rests with the legislature, saying, "What is before us is the power of the legislature, the power of the courts and the announcement of how that is applied in reference of the language in the Organic Act. It has nothing to do with abortion." Moylan stated, "This why I say the process is more important than the issue of abortion. Dobbs uprooted the finality. After 50 years they say oops we were wrong…what do you do to respect the legislature at a time a law was passed when the judiciary made a mistake. Do we just say, 'Oops, they made a mistake' and try to forget it? Or is it to give the legislature the due regard that they Orgnaic Act said that they did pass a valid law?"

Justice John Manglona also asking the AG, "Is there a stay on abortions or have there been any abortions performed since Dobbs 2022? You said prosecutions would not occur if abortions are conducted, but what is the current state of affairs on the island?"

"My understanding," Moylan replied, "is all the public laws in effect are being complied with. Whether or not there are breaches of the law, I am not clear. The proposal of the law in light of the Dobbs decision was that 20-134 go into effect. And as the prosecuting authority on Guam, I will not prosecute it. If the judiciary in its equitable authority were to call the election set forth in Public Law 20-134, which either says we are not going to have abortions on Guam or the people can decide it can continue. But that law would not go into effect."

Attorney Leslie Travis, the governor’s legal counsel, argued against the AG’s move, urging the justices to deny his request. "It’s not a zombie law. It cannot be revived in the future when there is a change, because it affects their authority to pass a law in the first place. Not just the substance of the policy underlying that," she said.

Attorney Braddock Huesman, for Robert Klitzkie, argued the governor is asking the high court to “go back in time and erase a law” because the legislature lacks the power to do so.   He warned the justices, stating, “Do not get involved – let the politicians fight,” while asking the courts to harmonize the case law.

Huesman noted, "The court should be careful on these and it’s when we are making decisions that may have ramifications in the future that we do not necessarily understand what those ramifications are, and right now there is a parallel proceeding before the ninth circuit that will answer all these questions."

Moylan continued, "The question on constitutionality is a loaded question. The question about an implied appeal is a loaded question. Those concepts are decided by the Judiciary…it’s up to the Judiciary to decide what is the law of the land."

Justices took the matter under advisement and plan to issue a written decision soon.