Ninth Circuit wades into debate on abortion in Guam

A Guam statute requires that an in-person consultation be provided before virtually prescribing medication abortion — which doctors say is tough to do when there are no doctors on Guam willing to provide abortion services in any capacity.

by Candace Cheung, Court House News, February 16, 2023

HONOLULU (CN) — Guam medical officials took their fight against two Hawaii-based physicians who want to mail abortion pills to Guam residents to the Ninth Circuit on Thursday, arguing the U.S. Supreme Court's decision in Dobbs v. Jackson Women's Health Organization this past June voided an injunction on the island's abortion restrictions.

Attorneys for the Guam Attorney General and the Guam Board of Medical Examiners, as well as for the pair of doctors argued before the panel consisting of U.S. Circuit Judges Carlos Bea, a George W. Bush appointee, and Daniel Collins and Kenneth Lee, both Donald Trump appointees, in Honolulu on Thursday.

The two OB-GYNs, Shandhini Raidoo and Bliss Kaneshiro, sued Guam in 2021 on behalf of their patients, who, after the retirement of Guam’s only abortion doctor in 2018, had no choice but to turn to physicians off-island. Raidoo and Kaneshiro, who both practice in Honolulu but are licensed in Guam, can currently prescribe medication abortion to their Guam patients. Medication abortion, usually referred to as the abortion pill, can be taken by the patient without direct supervision from a physician and without surgery or any other physical means.

The doctors take issue with a Guam statute that requires an in-person consultation be conducted before abortion procedures can begin. With no Guam medical professionals willing to suffer the backlash from formal affiliation with abortion, doctors like Raidoo and Kaneshiro have had to step in from nearly 4,000 miles away, according to the complaint.

Plaintiffs argue the in-person consultation requirement is a barrier to obtaining informed consent from their patients, without which they cannot legally provide an abortion. U.S. District Chief Judge Frances Tydingco-Gatewood of the District of Guam agreed and blocked enforcement of the statute in September 2021.

Defendants, represented by Jordan Pauluhn of the Attorney General’s office, argued Dobbs entirely changed the premise on which the injunction, granted nearly a year before Dobbs, had been based. They told the panel the standard under Roe v. Wade shifted undue burden to the government, whereas in a post-Roe world, rational basis review is now proper.

“There is no real barrier to following the in-person requirement, nothing is prohibiting them from doing this themselves,” Pauluhn told the panel.

Arguing for the plaintiffs, ACLU attorney Alexa Kolbi-Molinas said the in-person provision is irrational and contrasts with statutes facilitating abortion in general.

The panel of judges questioned the attorneys about the use of some sort of proxy or delegate to sidestep the in-person stipulation, highlighting one of the main controversies between the parties.

Pauluhn noted that there was the option to find a professional in Guam who could offer to the patient the required information about abortion, the pregnancy, and other options available to the patient, suggesting that nurses, psychologists, or even social workers could do the consultation, with the physician able to attend the meeting virtually if needed. Kolbi-Molinas countered by saying that there would not be anyone legally qualified to provide this information to patients.

Judge Bea asked how, in all of Guam, there could not be an adequate physician to do this consultation.

Kolbi-Molinas said that although there are doctors qualified to offer pre- and post-abortion care — processes that are no different from care for miscarriages or standard pregnancies, according to plaintiffs — and indeed there are doctors with whom the plaintiffs already work with, none are "abortion doctors"'" and significantly, none are willing to formally sign off on an abortion given the stigma on the procedure in Guamanian culture.

Guam has a complicated history of abortion rights due to the island’s culture and deep roots in Catholicism. The procedure was outlawed until Roe v. Wade and then banned again in 1990, although that ban was deemed unconstitutional soon after.

According to Kolbi-Molinas, this case, and abortion in Guam in general, are tied to local politics.

“It’s not surprising because this is the same attorney general that is seeking to revive a decades-old invalid abortion ban and push abortion out of reach for people in Guam altogether. And these attacks designed to score political points will have real impact on people in Guam,” she said in an interview, referring to a push by recently elected Attorney General Douglas Moylan to challenge the ruling on the 1990 abortion ban.

Both parties acknowledged various proposals in the Guam Legislature would have an effect on this case, although Pauluhn said that could take many years to come to fruition.

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