The United States Court of Appeals for the Ninth Circuit has overturned a lower court’s ruling this week that had temporarily blocked enforcement of Guam’s in-person, informed consent law for abortion access. The law had previously allowed Hawaii physicians to remotely administer prescriptions for medicinal abortions via telemedicine.
The Ninth Circuit vacated the lower court’s injunction, technically reinstating the Guam’s Women’s Reproductive Health Information Act enacted in 2012. This Act states that women seeking abortions are required to have an in-person meeting with a physician or a qualified agent of the physician, who must provide an array of specific medical information. The ruling, penned by Judge Kenneth K. Lee, and concurred by Judges Carlos T. Bea and Daniel P. Collins, concluded that the in-person informed consent law does not conflict with the due process clause, maintaining that it furthers Guam’s lawful government interests in preserving potential life, collective maternal health, and promoting the medical profession’s integrity.
The court highlighted in their ruling that the last known physician offering abortion services on the island retired in 2018, leaving no known alternative providers available. Further adding to the context, back in 2017, Guam Attorney General Douglas B. Moylan concluded that “Guam-licensed physicians located off the island can provide medical care to patients in Guam using telemedicine.” Moylan stipulated in another lawsuit in 2021 that Guam law allows for the usage of telemedicine to prescribe medicinal abortions.
The plaintiffs, Drs. Shandhini Raidoo and Bliss Kaneshiro – Guam-licensed, Hawaii-based doctors who specialize in obstetrics and gynecology – had also argued that the in-person, informed consent law impeded their patients’ right to have an abortion, as provided by the Supreme Court’s 1973 decision in Roe v. Wade and its 1992 decision in Planned Parenthood v. Casey, and the Fourteenth Amendment’s equal protection clause.
The Ninth Circuit panel determined that Guam’s in-person, informed consent law passes the rational basis review, thereby not undermining informed consent. The court said the regulation only requires that patients receive in person, as against non-medically professional delivered, certain information deemed crucial to deciding whether or not to undergo an abortion. The panel also dismissed the argument posed by plaintiffs that the law contravenes their equal protection rights, insisting that Guam can require in-person consultations as, “unlike other medical procedures, abortion implicates not only the patient’s health, but also the fetus’s life.”
The Plaintiffs’ attorney, Alexa Kolbi-Molinas, expressed disappointment at the court’s decision in a recent press release, while AG Moylan reinforced that the Supreme Court has urged Federal Courts to lessen their involvement with abortion-related litigations and defer to the decision of the local jurisdiction, arguing that Guam local legislation reflects its richly diverse cultural values.
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