Ninth Circuit limits remote abortion access in Guam

The Ninth Circuit ruled that Hawaii doctors may no longer provide the abortion pill to their patients in Guam through telemedicine.

by Candace Cheung, Court House News, August 1, 2023

A Ninth Circuit panel on Wednesday voided an injunction granted in 2021 that allowed Hawaii physicians to prescribe medication abortion to their patients in Guam without an in-person consultation.   

The three-judge panel cited both the Supreme Court’s Dobbs v. Jackson Women's Health Organization decision and Guam’s Women’s Reproductive Health Information Act in its opinion, authored by Judge Kenneth K. Lee.

Guam’s heavily Catholic background has fostered its complicated history with abortion rights, reflected in a lawsuit brought by two Hawaii-based OB-GYNs who 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.

Medication abortion, usually referred to as the abortion pill, can be taken conducted by the patient without direct supervision from a physician and without surgery or any other physical means.

In their suit, the doctors contested Guam’s Women’s Reproductive Health Information Act, which passed in 2012. It requires among other restrictions that physicians meet in-person with patients at least 24 hours before any abortion procedure to provide the medical information and to disclose any alternatives and social services available to the abortion seeker.

In the suit and in a February hearing before U.S. Circuit Judges Carlos Bea, a George W. Bush appointee, and Daniel Collins and Kenneth Lee, both Donald Trump appointees, the plaintiffs argued that the in-person stipulation prevents them from obtaining proper informed consent from their patients.

Guam’s only abortion doctor retired in 2018. Since then, abortion seekers have had to rely on off-island doctors like Shandhini Raidoo and Bliss Kaneshiro, the named plaintiffs, who say that having to rely on doctors 4,000 miles and an eight-hour plane ride away have caused their patients financial and personal suffering.

Following the suit and a preliminary injunction granted by U.S. District Chief Judge Frances Tydingco-Gatewood in 2021, the two OB-GYNs — who practice primarily in Honolulu but are licensed in Guam — were able to prescribe medication abortion to their Guam patients entirely remotely through telemedicine and without first conducting an in-person consultation.

Guam’s Attorney General and the Guam Board of Medical Examiners protested the injunction following the fall of Roe v. Wade, arguing that the new precedent set by Dobbs changed the premise upon which the injunction had been granted.  

Siding with Guam, Lee wrote in a ruling published Wednesday: “As the Supreme Court has instructed, abortion policy is best left to the people’s representatives.”

Lee says in the ruling the law doesn't violate due process as the plaintiffs claim and that Guam has “legitimate interests” in enforcing the in-person requirement.

“Guam’s statute sets a minimum disclosure requirement for informed consent, not a maximum. It does not prevent the treating doctor from providing the same information or more information; it merely requires that patients receive certain information in person before receiving an abortion,” he wrote.

Lee said that remote video or phone call meetings may then not be sufficient in promoting Guam’s interests in fetal and maternal health and that an in-person consultation would work better to convey those interests.

The judge also dismissed plaintiffs claims that doctors on Guam — fearing backlash through association with abortion — would be unable to convey this information by proxy to patients, pointing out that, by plaintiff’s own admission, there were physicians that currently assist them with patients’ pre- and post-abortion care that were qualified to do the consultations.

He also pushed back on physicians' assertions that the in-person informed consent law treats telemedicine abortion providers differently than other telemedicine providers.

"Even assuming that doctors who perform abortions are otherwise similarly situated to doctors who perform other medical services, it was rational for the Guam legislature to treat them differently because abortion presents different considerations than other medical procedures," Lee wrote, " Unlike other medical procedures, abortion implicates fetal life in addition to the patient’s health.”

Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project and the plaintiffs' lead attorney expressed their frustration with the decision.

“We are deeply disappointed that the court is permitting medically unnecessary government mandates to once again be enforced," she said. "Today’s decision imposes unnecessary obstacles on people seeking abortion in Guam, but make no mistake, abortion remains legal in Guam and we will continue to do everything in our power to make sure it stays both legal and accessible.”

Guam Governor Lou Leon Guerrero has backed abortion rights in the past and also supports the recruitment of a doctor who can provide abortions to the island. However, the ACLU noted that Guam Attorney General Douglas Moylan has been attempting to revive an extremely restrictive 1990 abortion ban that had been ruled unconstitutional soon after it was enacted. Proceedings in Moylan’s appeal to reinstate the ban are ongoing in the Ninth Circuit.

“The evidence shows this requirement looks nothing like ‘informed consent’ and provides no health benefit for people in Guam,” said Guam attorney and plaintiffs' co-counsel Vanessa L. Williams. “A person’s health should guide important medical decisions throughout pregnancy, not politics. We’ll continue fighting with everything in our power to ensure our family members, neighbors, and everyone in Guam can get the care they need, free from government intrusion.”