Guam Soc. of Obstetricians and Gynecologists v. Ada

• Decision Date: 13 October 1990
• Docket Number: Civ. No. 90-00013.
• Citation: 776 F. Supp. 1422
• Parties: GUAM SOCIETY OF OBSTETRICIANS AND GYNECOLOGISTS, Guam Nurses Association, the Reverend Milton H. Cole, Jr., Laurie Konwith, Edmund A. Griley, M.D., John Dunlop, M.D., on Behalf of themselves and all others similarly situated, and all their women patients, Plaintiffs, v. Joseph F. ADA, in his individual and official capacities, Dr. Leticia Espaldon, George B. Palican, Elizabeth Barrett-Anderson, Gloria B. Nelson, Thomas J.B. Calvo, Florencio T. Ramirez, Leonila L.G. Herrero and Michael Phillips, as the Board of Directors of the Guam Election Commission, in their official capacities, together with all others similarly situated, Defendants.
• Court: U.S. District Court — District of Guam

776 F. Supp. 1422

GUAM SOCIETY OF OBSTETRICIANS AND GYNECOLOGISTS, Guam Nurses Association, the Reverend Milton H. Cole, Jr., Laurie Konwith, Edmund A. Griley, M.D., John Dunlop, M.D., on Behalf of themselves and all others similarly situated, and all their women patients,^* Plaintiffs, v. Joseph F. ADA, in his individual and official capacities, Dr. Leticia Espaldon, George B. Palican, Elizabeth Barrett-Anderson, Gloria B. Nelson, Thomas J.B. Calvo, Florencio T. Ramirez, Leonila L.G. Herrero and Michael Phillips, as the Board of Directors of the Guam Election Commission, in their official capacities, together with all others similarly situated, Defendants.

Civ. No. 90-00013.

United States District Court, Territory of Guam.

August 23, 1990.

Amended Judgement October 13, 1990.

Anita Arriola, Arriola, Cowan & Bordallo, Agana, Guam, for plaintiffs.

Katherine Maraman, Monessa Lujan, Governor's Office, Agana, Guam, for Governor Ada.

Maria Fitzpatrick, Asst. Atty. Gen., Agana, Guam, for Atty. Gen. Barrett-Anderson.

Patrick Wolff, Agana, Guam, for Dr. Espaldon.

DECISION AND ORDER RE PERMANENT INJUNCTION AND OTHER MOTIONS

MUNSON, District Judge.

THIS MATTER came before the Court on August 7, 1990, for hearing of the following motions: Plaintiffs' motion for summary judgment and permanent injunction; plaintiffs' motion for summary judgment based on 42 U.S.C. § 1983; defendant Governor Ada's motion to dismiss; defendant Governor Ada's motion for partial summary judgment; and, defendant Attorney General Barrett-Anderson's motion to dismiss.

THE COURT, having reviewed the voluminous filings and having fully considered the arguments made by the parties in their respective memoranda of law and at oral argument, finds that there are no genuine issues of material fact which would preclude summary judgment and that such disposition is, therefore, appropriate.

Statement of Undisputed Facts

On July 10, 1989, Senator Elizabeth P. Arriola introduced Bill 848 before the Guam Legislature. Bill 848 provided as follows:

AN ACT TO REPEAL AND REENACT § 31.20 OF TITLE 9, GUAM CODE ANNOTATED,

TO REPEAL §§ 31.21 AND 31.22 THEREOF, TO ADD 31.23 THERETO, TO REPEAL SUBSECTION 14 OF SECTION 3107 OF TITLE 10, GUAM CODE ANNOTATED, RELATIVE TO ABORTIONS, AND TO CONDUCT A REFERENDUM THEREON. BE IT ENACTED BY THE PEOPLE OF THE TERRITORY OF GUAM:

Section 1. Legislative findings. The Legislature finds that for purposes of this Act life of every human being begins at conception, and that unborn children have protectible interests in life, health, and well-being. The purpose of this Act is to protect the unborn children of Guam. As used in this declaration of findings the term "unborn children" includes any and all unborn offspring of human beings from the moment of conception until birth at every stage of biological development.

Section 2. § 31.20 of Title 9, Guam Code Annotated, is repealed and reenacted to read:

"§ 31.20. Abortion: defined. "Abortion" means the purposeful termination of a human pregnancy after implantation of a fertilized ovum by any person including the pregnant woman herself with an intention other than to produce a live birth or to remove a dead unborn fetus. "Abortion" does not mean the medical intervention in (i) ectopic pregnancy, or (ii) in a pregnancy at any time after the commencement of pregnancy if two (2) physicians who practice independently of each other reasonably determine using all available means that there is a substantial risk that continuance of the pregnancy would endanger the life of the mother or would gravely impair the health of the mother, any such termination of pregnancy to be subsequently reviewed by a peer review committee designated by the Guam Medical Licensure Board, and in either case such an operation is performed by a physician licensed to practice medicine in Guam or by a physician practicing medicine in the employ of the government of the United States, in an adequately equipped medical clinic or in a hospital approved or operated by the government of the United States or of Guam."

Section 3. § 31.21 of Title 9, Guam Code Annotated, is repealed and reenacted to read:

"§ 31.21. Providing or administering drug or employing means to cause an abortion. Every person who provides, supplies, or administers to any woman, or procures any woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatever, with intent thereby to cause an abortion of such woman as defined in § 31.20 of this Title is guilty of a third degree felony. In addition, if such person is a licensed physician, the Guam Medical Licensure Board shall take appropriate disciplinary action."

Section 4. § 31.22 of Title 9, Guam Code Annotated, is repealed and reenacted to read:

"§ 31.22. Soliciting and taking drug or submitting to an attempt to cause an abortion. Every woman who solicits of any person any medicine, drug, or substance whatever, and takes the same, or who submits to any operation, or to the use of any means whatever with intent thereby to cause an abortion as defined in § 31.20 of this Title is guilty of a misdemeanor."

Section 5. A new § 31.23 is added to Title 9, Guam Code Annotated, to read:

"§ 31.23. Soliciting to submit to operation, etc., to cause an abortion. Every person who solicits any woman to submit to any operation, or to the use of any means whatever, to cause an abortion as defined in § 31.20 of this Title is guilty of a misdemeanor."

Section 6. Subsection 14 of Section 3107, Title 10, Guam Code Annotated, is repealed.

Section 7. Abortion referendum. (a) There shall be submitted to an island-wide general election to be held on November 6, 1990, the following question for determination by the qualified voters of Guam, the question to appear on the ballot in English and Chamorro: "Shall that public law derived from Bill 848, Twentieth Guam Legislature (P.L. 20-134), which outlawed abortion except in the cases of pregnancies threatening the life of the mother be repealed?"

In the event a majority of those voting vote "Yes", such public law shall be repealed in its entirety as of December 1, 1990.

(b) There is hereby authorized to be appropriated to the Election Commission (the "Commission") sufficient funds to carry out the referendum described in this Section 7, including but not limited to the cost of printing the ballot and tabulating the results. In preparing the ballot, the Commission shall include in the question the number of the relevant public law.

During later discussion of the Bill, the Senator justified the near-complete ban on abortions on Guam on the ground that

Guam is a Christian community. That no matter which way you're going to say "this is not religion, this is not so and so," I beg to differ, Mr. Speaker. It's a Christian community. We decide what we're going to have here on Guam.¹

Transcript of Legislative Session, March 8, 1990.

Senator Arriola's legal counsel had advised her that the Bill as introduced would probably be struck down because "judges are bound by Supreme Court decisions because the decisions are binding precedent, and that more than likely a judge would probably find that this bill was not in keeping with Roe v. Wade." Deposition of Attorney June Mair, May 10, 1990, at p. 23.

On September 16, 1989, the Guam Legislature's Committees on Health, Welfare and Ecology and the Judiciary and Criminal Justice held a joint hearing on two abortion bills, Senator Arriola's and another introduced by two other senators. The latter bill would have allowed abortions under somewhat broader circumstances. Of the people who testified at the hearing, the "overwhelming majority ... supported the bill on grounds of expressed religious belief or orientation." Committee Report on Bill 848, at pp. 3-4.

On February 26, 1990, Guam's Attorney General, Elizabeth Barrett-Anderson, filed twelve pages of written testimony with the Committee on Judiciary and Criminal Justice. The Attorney General gave as the legal opinion of her office that both bills were "violative of a woman's constitutional right of privacy as enunciated by the United States Supreme Court in Roe v. Wade." The Attorney General noted that a "state cannot interfere with a woman's right of personal privacy to decide to have an abortion whatever the cause of her pregnancy. The state may regulate such a decision, but it cannot deprive a woman of such a choice." (Emphasis in original) Because both bills effectively proscribed abortion, the Attorney General gave as her legal opinion that "both bills would be held unconstitutional." Attorney General's Opinion, pp. 1-4.

After minor amendments, including the addition of a legislative "finding" that "life begins at conception," the Legislature unanimously passed the Bill 848 on March 8, 1990.

On March 19, 1990, defendant Governor Joseph F. Ada signed the bill into law as Public Law 20-134. In his March 23, 1990, transmittal letter to the Speaker, Governor Ada noted that his "pro-life" stance was well-known, but that Bill 848 was "even more severe than my views on the subject are." Despite his expressed misgivings about almost every substantive part of the bill, and after, in his own words, prayer and much soul-searching, the Governor

came to the realization that in terms of my personal beliefs and my personal actions, the question for me really boils down to one simple point. Do I consider a fetus a human being? In my heart, I believe a fetus is a human being. And having such belief, how could I accord a fetus any less respect or dignity than I would any other human being? Having come to this conclusion, my choice is fairly simple. Do I act in accordance with my firmly held personal beliefs, or do I not?

* * * * * *

Believing as I do, I personally can see no honorable course for me to take, no action that I could take and still be true to my conscience other than signing this bill. This is a personal decision, and one that I must make

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