AG opinion: Abortion bill would be unconstitutional

ABORTION BILL: Attorney General Elizabeth Barrett-Anderson is pictured in July 2017. Barrett-Anderson said a measure restricting abortions on Guam likely would be held unconstitutional if signed into law. Post file photo

Attorney General Elizabeth Barrett-Anderson said she would advise the governor not to enact into law Bill 232-34 should the measure pass the Legislature.

"I will say that I will try to prevent another $1 million that was spent on the first go-round when I was attorney general 28 years ago," Barrett-Anderson said. "That case, we ended up paying legal fees on both ends of the lawsuit."

Bill 232 is sponsored by Sens. Telena Nelson, Joe San Agustin, Tommy Morrison, Dennis Rodriguez Jr. and Frank Aguon Jr. Rodriguez and Aguon are gubernatorial candidates.

The measure would ban abortions on Guam once the fetus is 20 or more weeks old.

28 years ago

A more stringent measure – banning abortions entirely – was enacted 28 years ago. At that time, Barrett-Anderson advised that the legislation was unconstitutional based on the landmark Roe v. Wade U.S. Supreme Court decision. It was her opinion then that Gov. Joseph Ada should not enact the measure into law.

The measure sparked a six-year legal battle in federal court, which the government of Guam ultimately lost. Barrett-Anderson recused herself due to her legal opinion and Ada needed to hire his own counsel.

Barrett-Anderson said it was a "no-brainer" that the opposing party would win the case, represented by attorney Anita Arriola. The federal court awarded three times Arriola's legal fees, Barrett-Anderson said.

"I think we ended up paying both sides of that litigation over $1 million," she added.

Legal opinion

Vice Speaker Therese Terlaje sought out the legal opinion on Bill 232. The opinion stated that federal courts, specifically the 9th U.S. Circuit Court of Appeals, have unanimously found state laws that ban pre-viability abortions to be unconstitutional.

"There is no doubt that the 20-week period recommended by Bill 232-34 operates as a ban on pre-viability abortion, and that it cannot stand under the viability rule enunciated repeatedly by the United States Supreme Court, the 9th Circuit Court of Appeals, which has jurisdiction over Guam, and other circuits."

The attorney general concluded by saying Bill 232 would be held unconstitutional "when," not "if," it is challenged.

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