OAG opposes ACLU motion to immediately strike down portions of Guam’s 2012 informed consent statute

March 8, 2020- Tamuning, Guam- Last Friday, the Office of the Attorney General filed its opposition to a motion brought by the American Civil Liberties Union (ACLU) on behalf of two Hawai’i-based doctors to immediately strike down portions of Guam’s informed consent statute.

In 2012, the Legislature passed a law requiring a woman seeking an abortion to meet in-person with her doctor or other qualified individual to discuss topics such as the proposed abortion method, the gestational age of the unborn child at the time the abortion is to be performed, the medical risks associated with abortion and carrying the child to term, and alternatives to abortion. Unlike most challenges to abortion laws which focus on recent laws or regulations, the ACLU lawsuit comes nine years after the in-person requirement became law, without any local providers suggesting that the part of the law being challenged created an undue burden on their patient’s access to abortion. Instead, the ACLU and the two Hawai’i -based doctors have asked the court to strike down this requirement so the doctors can expand their medical practices to offer medication abortions across the ocean to Guam via telemedicine.

The ACLU and the doctors also challenged a 1978 statute that makes it a felony offense to perform a surgical abortion outside of a clinical setting. All parties agreed to dismiss this challenge, noting that medication abortion did not exist in 1978 and that no one had ever interpreted the statute as criminalizing the prescription, dispensing or delivery of abortion medication outside of a clinic or hospital. The parties noted that other local and federal laws may apply, including laws and regulations governing the prescription of abortion medication established by the Federal Drug Administration.

The court will hear arguments on the ACLU’s motion on March 18, 2021