Guam Soc. of Obstetricians and Gynecologists v. Ada, 90-16706

• Decision Date: 08 June 1992
• Docket Number: No. 90-16706,90-16706
• Citation: 962 F.2d 1366
• Parties: GUAM SOCIETY OF OBSTETRICIANS AND GYNECOLOGISTS; Guam Nurses Association; The Reverend Milton Cole, Jr.; Laurie Konwith; Edmund A. Griley, M.D.; William S. Freeman, M.D.; John Dunlop, M.D.; on behalf of themselves and all others similarly situated, and all their women patients, Plaintiffs-Appellees, v. Joseph F. ADA, Governor of Guam, in his official capacity, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1366

962 F.2d 1366

60 USLW 2675

GUAM SOCIETY OF OBSTETRICIANS AND GYNECOLOGISTS; Guam

Nurses Association; The Reverend Milton Cole, Jr.; Laurie

Konwith; Edmund A. Griley, M.D.; William S. Freeman, M.D.;

John Dunlop, M.D.; on behalf of themselves and all others

similarly situated, and all their women patients, Plaintiffs-Appellees, v. Joseph F. ADA, Governor of Guam, in his official capacity,

Defendant-Appellant.

No. 90-16706.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 4, 1991.

Decided April 16, 1992.

As Amended June 8, 1992.

Paul B. Linton, Americans United for Life, Chicago, Ill., Arnold H. Leibowitz, Cameron & Hornbostel, Washington, D.C., for defendant-appellant.

Anita P. Arriola, Arriola, Cowan & Bordallo, Agana, Guam, Lynn M. Paltrow, Simon Heller, American Civil Liberties Union Foundation, New York City, for plaintiffs-appellees.

Appeal from the United States District Court for the District of Guam.

Before: CHOY, D.W. NELSON and CANBY, Circuit Judges.

CANBY, Circuit Judge:

On March 19, 1990, the Territory of Guam enacted a statute ("the Act") outlawing almost all abortions. ¹ The only exceptions were abortions in cases of ectopic pregnancy, and abortions in cases where two physicians practicing independently reasonably determined that the pregnancy would endanger the life of the mother or "gravely impair" her health. All other abortions were declared to be crimes, both on the part of the women submitting to the abortions and on the part of the persons procuring or causing them.

The validity of the Act was immediately challenged in this class action brought by the Guam Society of Obstetricians & Gynecologists and others against Joseph F. Ada, the Governor of Guam. The district court accurately viewed the Act as a direct challenge to the regime of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), in the Territory of Guam. The district court held that Roe v. Wade applied, and granted summary judgment for the plaintiffs, permanently enjoining enforcement of the Act. ² 776 F.Supp. 1422. We affirm.

I

The plaintiffs in this case are the Guam Society of Obstetricians & Gynecologists; the Guam Nurses Association; physicians Edmund A. Griley, William S. Freeman, and John Dunlop; the Reverend Milton H. Cole, Jr.; and Laurie Konwith. The health care providers in this group clearly have standing to bring this action. See Planned Parenthood v. Danforth, 428 U.S. 52, 62, 96 S.Ct. 2831, 2837, 49 L.Ed.2d 788 (1976); Abele v. Markle, 452 F.2d 1121, 1125 (2d Cir.1971). Because some of the plaintiffs have standing, it is not necessary to determine whether the others do. See Doe v. Bolton, 410 U.S. 179, 188-89, 93 S.Ct. 739, 746, 35 L.Ed.2d 201 (1973); see also Watt v. Energy Action Educ. Found., 454 U.S. 151, 160, 102 S.Ct. 205, 212, 70 L.Ed.2d 309 (1981); Grove v. Mead School Dist. No. 354, 753 F.2d 1528, 1532 (9th Cir.), cert. denied, 474 U.S. 826, 106 S.Ct. 85, 88 L.Ed.2d 70 (1985).

The district court held that the plaintiffs could maintain their action under 42 U.S.C. § 1983, and awarded them relief under the due process guarantees recognized in Roe v. Wade. The court determined that those guarantees applied in Guam, under the provisions of the Mink Amendment to the Guam Organic Act, 48 U.S.C. § 1421b(u). The Territory of Guam in the person of Governor Ada ("Guam") challenges all of these rulings on appeal, and urges as well that the authority of Roe v. Wade has been undermined by later decisions of the Supreme Court. Before we address these points, however, we must deal with a threshold issue raised by the plaintiffs.

A. Severability of the Unappealed Sections

The district court held that Sections 4 and 5 of the Act violated the First Amendment, and Guam did not appeal from that ruling. The plaintiffs now argue that these sections are not severable from the remainder of the Act. The result, they contend, is that the entire Act has been invalidated, in effect, by the district court's unappealed ruling, leaving nothing to be decided on this appeal. We reject this contention because we conclude that Sections 4 and 5 are severable from the other parts of the Act.

The standard for determining the severability of an unconstitutional provision is well established: " 'Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.' "

Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S.Ct. 1476, 1480, 94 L.Ed.2d 661 (1987) (citations omitted). The sections of the Act that remain if Sections 4 and 5 are severed clearly are fully operative as a law. Unless there is evidence of contrary legislative intent, the remainder of the Act should therefore survive the invalidation of Sections 4 and 5.

The plaintiffs put forward two related arguments suggesting a legislative intent against severability. First, they contend that Section 7, which provides for a referendum to determine whether the entire Act should be repealed, ³ demonstrates that the Guam Legislature intended the Act to stand or fall as a whole. Second, they argue that the Legislature's intention was to pass a comprehensive antiabortion statute, and that removal of Sections 4 and 5 creates a weaker and less comprehensive statute.

With respect to the first argument, the fact that there was to be a referendum on the entire Act reveals very little about legislative intent regarding severability. The plaintiffs place undeserved emphasis on the words "in its entirety." That part of the section provides that, if a majority of the voters vote to repeal the law, "such public law shall be repealed in its entirety." An entire repeal is the obvious and logical result of a vote to repeal in a referendum; the words in question signify no more than that.

While the plaintiffs' second argument is not wholly implausible, they present no evidence to support it. The mere suggestion that legislators wanted a comprehensive Act is not sufficient to overcome the presumption of severability that is implicit in the Alaska Airlines standard. We therefore reject the plaintiffs' severability arguments, and proceed to the arguments that Guam raises on appeal.

B. Applicability of Roe v. Wade to Guam

Guam contends that the substantive due process guarantee enforced in Roe v. Wade and subsequent abortion cases does not apply to Guam because nothing in Guam's Organic Act, codified at 48 U.S.C. §§ 1421-1424b (1988), so provides. The plain language of the 1968 Mink Amendment to the Organic Act, codified at 48 U.S.C. § 1421b(u) (1988), belies their claim. The Mink Amendment states that:

The following provisions of and amendments to the Constitution of the United States are hereby extended to Guam ... and shall have the same force and effect there as in the United States or in any State of the United States: ... the first to ninth amendments inclusive; the thirteenth amendment; the second sentence of section 1 of the fourteenth amendment; and the fifteenth and nineteenth amendments.

48 U.S.C. § 1421b(u) (emphasis added). The Mink Amendment thus expressly extends to Guam the Due Process Clause of the Fourteenth Amendment, upon which the holding of Roe was founded. ⁴ See Roe v. Wade, 410 U.S. at 153, 93 S.Ct. at 726.

It may be true, as Guam argues, that the Supreme Court requires a clear indication of congressional intent before interpreting a congressional action as extending a right to the people of Guam. See Guam v. Olsen, 431 U.S. 195, 97 S.Ct. 1774, 52 L.Ed.2d 250 (1977). We can scarcely imagine, however, any clearer indication of intent than the language of the Mink Amendment: the relevant constitutional amendments "have the same force and effect" in Guam as in a state of the United States. There is no need, therefore, to go further. See Ngiraingas v. Sanchez, 495 U.S. 182, 186-87, 110 S.Ct. 1737, 1740, 109 L.Ed.2d 163 (1990) (resorting to legislative history only after determining that the statutory language was unclear). Accordingly, we hold that Roe v. Wade applies to Guam as it applies to the states. ⁵

C. Prospective Relief Under 42 U.S.C. § 1983

Guam next argues that the plaintiffs cannot maintain this action against Governor Ada under 42 U.S.C. § 1983 because he is not a "person" within the meaning of that statute. We hold that he is a "person" when sued in his official capacity for prospective relief.

Section 1983 creates liability for "persons" who, while acting "under color" of state or territorial law, deprive citizens or other persons of rights, privileges, or immunities secured by the Constitution or federal law. 42 U.S.C. § 1983. In Ngiraingas v. Sanchez, 495 U.S. 182, 110 S.Ct. 1737, 109 L.Ed.2d 163 (1990), an action for damages, the Supreme Court held that territories are not "persons" within the meaning of § 1983. The Court also stated: "[p]etitioners concede, ... and we agree, that if Guam is not a person, neither are its officers acting in their official capacity." Id. at 192, 110 S.Ct. at 1743. Guam seizes upon this language. It contends that, because Governor Ada is being sued to prevent him from enforcing a statute of Guam, he is necessarily being sued in his official capacity. Therefore, Guam asserts, he cannot be considered a "person" subject to suit under section 1983.

Guam's argument overlooks the distinction between suits against governmental officials for damages, such as Ngiraingas, and those for injunctive relief. The distinction has been spelled out in cases involving state officials. Like territories, states are not "persons" for purposes of section 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 63-65, 109 S.Ct. 2304, 2307-08, 105 L.Ed.2d 45 (1989). In addition, state officers, when sued for damages in their official capacities, are likewise not "persons" within the meaning of 1983. Id. at 71, 109 S.Ct. at 2311. Any other...