Guam governor, attorney general face off over decades-old abortion ban

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

In the 1990s, a federal district court in Guam blocked a total ban on abortion enacted by the territory’s legislature because it conflicted with Roe v. Wade. After the justices overruled Roe two years ago in Dobbs v. Jackson Women’s Health Organization, Guam’s attorney general sought to lift the hold on the ban. But the Guam Supreme Court, in response to a request by the territory’s governor, ruled that the ban cannot be revived because more recent abortion laws have effectively wiped it from the books. This week, we highlight petitions that ask the court to consider, among other things, whether the Guam Supreme Court had the authority to wade into the dispute.

When the Supreme Court affirmed the constitutional right to abortion in its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, it surprised many who doubted that the court was willing to defend Roe after two decades of fighting over abortion. Among the skeptics was the Guam legislature, which in 1990 enacted a total ban on abortion, wagering that the tides would soon shift and states and territories would be allowed to regulate abortion on their own. A federal court quickly put the ban on hold, agreeing with the challengers that it violated Roe. When Casey ultimately upheld Roe, that hold remained in effect.

Today, Dobbs has wiped away Roe and Casey and overturned the constitutional right to abortion. Douglas Moylan, the attorney general of Guam, went to federal court, seeking to lift the hold on the 1990 ban. Now that no federal constitutional decision stands in its way, Moylan argued, the ban should be allowed to go into effect. Lourdes Guerrero, the governor of Guam, joined a host of challengers opposing Moylan’s request.

Meanwhile, Guerrero went to the Guam Supreme Court, asking that court to decide whether the ban remained valid and thus capable of resurrection. Moylan, in turn, opposed that request.

The federal district court in Guam refused to reinstate the ban in a ruling last March. Moylan appealed that decision to the U.S. Court of Appeals for the 9th Circuit, which oversees Guam and other U.S. territories in the Pacific.

Before the 9th Circuit could weigh in, however, the Guam Supreme Court issued its ruling in October. Looking to a provision of Guam law that authorizes it to issue rulings even if no party before it has suffered harm — known as declaratory judgments — if the governor or legislature believe quick resolution is needed of a purely legal issue of territorial importance, the court reasoned that it was entitled to weigh in on Guerrero’s request to evaluate the 1990 ban. It then held that the ban is no longer valid because Guam’s legislature had impliedly repealed it when the legislature later enacted laws regulating abortion that, because they were designed to be consistent with Roe and Casey, cannot be read in harmony with a complete ban on abortion.

In Moylan v. Guerrero, the attorney general asks the justices to vacate the Guam Supreme Court’s ruling. He argues that the law authorizing the territory’s high court to issue declaratory judgments violates the separation of powers because it exceeds the limited judicial authority that Congress granted to the Guam Supreme Court. Just as that court’s ruling here frustrated the 9th Circuit’s resolution of the abortion issue, Moylan writes, a law permitting declaratory judgments “simultaneously elevates the Supreme Court of Guam above the other branches of Guam’s government and undermines the operations of Guam’s federal courts.”

A list of this week’s featured petitions is below:

City and County of San Francisco v. Environmental Protection Agency
23-753
Issue: Whether the Clean Water Act allows the Environmental Protection Agency (or an authorized state) to impose generic prohibitions in National Pollutant Discharge Elimination System permits that subject permit-holders to enforcement for violating water quality standards without identifying specific limits to which their discharges must conform.

United States v. Miller
23-824
Issue: Whether a bankruptcy trustee may avoid a debtor’s tax payment to the United States under 11 U.S.C. § 544(b) when no actual creditor could have obtained relief under the applicable state fraudulent-transfer law outside of bankruptcy.

Delligatti v. United States
23-825
Issue: Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.

Moylan v. Guerrero
23-828
Issue: Whether the Supreme Court of Guam’s advisory opinion that a Guam abortion law passed in 1990 had been impliedly repealed constitutes a permissible exercise of the “judicial authority” that Congress has vested in that court under 48 U.S.C. § 1424(a)(1).