Following is a copy of the Introduction to the Government's Opposition to Plaintiff's Motion for a Preliminary Injunction (re the "ACLU lawsuit"). The Opposition appears to have been authored by Deputy Attorney General, James Canto. The Introduction serves as a summary of why the Plaintiff's Injunction (and in fact the entire ACLU complaint) should be denied. (Highlights and Emphases ours).
Shandhini Raidoo, M.D., M.P.H. and Bliss Kaneshiro, M.D., M.P.H., are Guam-licensed physicians with medical practices based in Hawaii, who seek to prescribe medications via telemedicine to induce abortions in Guam. They brought a constitutional challenge to two Guam laws that have been on the books since 1978 and 2012, 9 GCA § 31.20 (P.L. 13-185 (Sept. 2, 1976)); and § 31.21 (P.L. 14-122 (Apr. 18, 1978)); and 10 GCA § 3218.1 (P.L. 31-235) (Nov. 1, 2012). Plaintiffs’ argument with 9 GCA §§ 31.20 and 31.21 has been resolved, leaving their contention that 10 GCA § 3218.1 is unconstitutional.
Specifically, plaintiffs take issue with 10 GCA §§ 3218.1(b)(1), (b)(2), and (b)(4), which mandate that the treating physician or other “qualified person” (“an agent of the physician who is a psychologist, licensed social worker, licensed professional counselor, registered nurse, or physician,” per § 3218.1(a)(13)) inform the patient of certain information listed in 10 GCA §§3 218.1(b)(1) &(b)(2) [the “State-mandated information”] 24 hours before the abortion and, more importantly here, in person [the “in-person information requirement”].
Contrary to their repeated assertions in the complaint, motion for preliminary injunction, and declarations, plaintiffs do not seek to “restore” abortion to Guam. They are asking the court to recognize a right to medication abortion via telemedicine without having to comply with the “in-person information requirement” of 10 GCA § 3218.1(b). The doctors’ urgency is not due to any new development in the law, but is due to their allegation that the last two physicians who performed abortions in Guam have retired, and the worldwide COVID-19 pandemic that began in March 2020 has resulted in travel restrictions which, until recently, required quarantine for visitors to both Guam and Hawaii.
In light of these two unrelated events, neither of which were caused by the defendants, two Hawaii-based doctors assert that unidentified prospective patients’ access to medication abortion should be facilitated by this court declaring the “in-person information requirement” of the informed consent law to be an undue, and thus an unconstitutional, burden on the right to abortion on Guam. However, U.S. Supreme Court precedent would find the in-person information requirement as reasonably related to Guam’s legitimate state interest to promote the advancement of fetal life, and that the law does not place a substantial obstacle in the path of women seeking an abortion.
Unlike most challenges to abortion laws which focus on recent enactments or rules that are alleged to impose an undue burden on a woman’s right to an abortion, plaintiffs challenge a law that has been in effect for nine years without any abortion provider suggesting that the part of the law they challenge created an undue burden on any of their patient’s access to pre-viability abortion. Plaintiffs do not seek to preserve the pre-existing status quo pending a determination on the merits, they seek to change the status quo in order to expand their medical practices from Hawaii to offer medication abortions across the ocean to Guam via telemedicine.
Plaintiffs have failed to establish that they are likely to succeed on the merits or will suffer irreparable injury if the status quo is maintained. Both the balance of the equities and the public interest also align with Defendants’ position. Thus, plaintiffs’ motion for preliminary injunction should be denied.