People seeking medication abortions on the U.S. Territory of Guam must first have an in-person consultation with a doctor, a federal appeals court says, even though the nearest physician willing to prescribe the medication is 3,800 miles (6,100 kilometers) and an 8-hour flight away.
The ruling handed down Tuesday by a unanimous three-judge panel on the 9th U.S. Circuit Court of Appeals could make it even more difficult for pregnant people to access abortions on the remote island where 85% of residents are Catholic and about 1 in 5 live below the poverty line. The last doctor to provide abortions in Guam retired in 2018, leaving people seeking the procedure without local options.
That changed in 2021 when a lower court partially lifted the territory's in-person consultation requirement and said two Guam-licensed physicians in Hawaii could provide medication abortions via telemedicine to people in Guam.
The appellate court panel reversed that ruling Tuesday, saying Guam can enact the laws it thinks are best, even if others find them unwise.
“Guam has legitimate interests in requiring an in-person consultation: the consultation can underscore the medical and moral gravity of an abortion and encourage a robust exchange of information,” wrote Judge Kenneth K. Lee.
Lee was appointed by former President Donald Trump in 2018 along with fellow panel member Judge Daniel P. Collins. The third member of the panel, Judge Carlos T. Bea, was appointed by former President George W. Bush in 2003.
Abortion rights advocates contend having no doctors able to provide abortions on the island creates a significant challenge to people seeking care. The court ruled other doctors there could conduct the in-person consultations even if they do not want to personally perform abortions themselves. It's not clear if any physicians in Guam are willing to take on that role.
“We are deeply disappointed that the court is permitting medically unnecessary government mandates to once again be enforced,” said Alexa Kolbi-Molinas, the deputy director of the American Civil Liberties Union Reproductive Freedom Project. “Today’s decision imposes unnecessary obstacles on people seeking abortion in Guam, but make no mistake, abortion remains legal in Guam and we will continue to do everything in our power to make sure it stays both legal and accessible.”
Guam currently allows abortions in the first 13 weeks of pregnancy — or in the first 26 weeks in the case of rape or incest, grave fetal defects or serious risks to the pregnant person's life or health.
A 2012 Guam law required an in-person consultation 24 hours before an abortion. Two years ago, Hawaii-based Drs. Shandhini Raidoo and Bliss Kaneshiro sued over the law, saying they wanted to provide medication abortions to Guam residents via telemedicine. They argued that there was no rational government interest for the law and that it placed an undue burden on abortion-seeking patients. The lower court ruled in their favor in 2021, waiving the requirement and making it easier for abortion-seeking residents to find care.
In Tuesday's ruling, the appellate court said Guam can require an in-person consultation requirement because it has a “legitimate governmental interest of safeguarding fetal life.”
The appellate panel also suggested people might be more likely to be talked out of abortions during in-person consultations.
“In the more solemn context of a face-to-face meeting—unlike a Zoom call—a pregnant woman may decide against an abortion after having a candid conversation at the clinic about the gestational age of her fetus and concluding that the fetus represents human life,” Lee wrote for the panel.
Vanessa L. Williams, a Guam attorney who represents the doctors, said there is no health benefit to preventing telemedicine visits for abortions.
“A person’s health should guide important medical decisions throughout pregnancy,” Williams said, “not politics.”
Another abortion-related lawsuit is still making its way through the courts: Attorney General Douglas Moylan is fighting in court to reinstate a 1990 law that made it a felony for a doctor to perform abortions except to save a woman’s life or prevent grave danger to her health. The U.S. District Court on Guam blocked it from being enforced in 1992, citing Roe v. Wade, the landmark case that legalized abortion nationwide. It was overturned by the U.S. Supreme Court in June 2022.
A federal court in Guam denied Moylan's reinstatement request in March of this year, but Moylan has appealed to the 9th U.S. Circuit Court of Appeals.
