Case challenging Guam abortion law hits setback

ANTI-ABORTION PROTEST: Viola Acfalle, center, and her husband, Joe, right, are among a small group of about a half-dozen people holding signs that voice views against abortion in front of Adelup on Jan. 29. The protest was held a day after the American Civil Liberties Union sued the government of Guam in an effort to make medication abortion accessible on Guam. Norman M. Taruc/The Guam Daily Post

The American Civil Liberties Union lawsuit on behalf of two Hawaii-based doctors who want to help give options to Guam women and girls who want to get abortions via telemedicine has hit a setback.

District Court Magistrate Judge Heather Kennedy on Friday released her recommendation that the plaintiffs' request for a preliminary injunction against the Government of Guam be denied.

According to the judge, the doctors "have not sufficiently shown" that Guam’s law – requiring that certain information be provided by a doctor in person – unduly burdens a woman’s constitutional right to an abortion.

The ACLU filed the case on behalf of two Guam-licensed, board-certified obstetrician-gynecologists. While they are licensed on Guam, Dr. Bliss Kaneshiro and Dr. Shandhini Raidoo reside in Hawaii. The doctors seek to provide “medication abortions” to patients on Guam through telemedicine, which means a patient herself will take the medically prescribed abortion medication.

In 2018, the last abortion physician on Guam retired, and no local doctor has stepped in to fill the vacancy, according to the case's background information. 

The doctors want to provide medication abortion on Guam from Hawaii via telemedicine, but worry about their potential legal exposure because of language in Guam law.

The Guam law at issue requires a doctor to be personally present to provide to the patient “a description of the abortion method,” the risks it poses, the “probable gestational age of the unborn child,” the “probable anatomical and physiological characteristics of the child,” public assistance available to support the child, available adoption services, and the legal responsibilities of the father.  

The law imposes misdemeanor criminal penalties and creates private causes of action against physicians who violate these requirements.

While plaintiffs do not challenge the nature of the information to be given or the 24-hour waiting period, the doctors are concerned with the two-word requirement in Guam law that says they must provide the information to a prospective abortion patient “in person.”  

The doctors asked the court to issue a preliminary injunction stopping GovGuam from enforcing the "in person" requirement in giving the information to someone seeking an abortion on Guam.

But the magistrate judge, in her recommendation, stated that a preliminary injunction against GovGuam should "be denied because plaintiffs have not sufficiently shown that Guam’s law requiring that certain information be provided in-person unduly burdens a woman’s constitutional right to an abortion." 

The court stated "medication abortions via telemedicine are possible for women on Guam," but the law "only precludes medication abortions provided entirely by telemedicine."

The court also stated a preliminary injunction against GovGuam is not needed because the "plaintiffs are not likely to succeed on the merits" of their case.

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