AG ordered to explain why abortion case shouldn’t be dismissed as moot

With the federal case over Guam's old abortion ban back at the 9th U.S. Circuit Court of Appeals, where the governor argues that the case is moot in light of the Supreme Court of Guam determination that the ban is without effect, Attorney General Douglas Moylan is now being required to explain to the court why the case should not be dismissed.

The Guam Supreme Court examined the validity of the old abortion ban last year at the request of Gov. Lou Leon Guerrero, who petitioned for the review as Moylan sought to open up its enforcement.

The ban, P.L. 20-134, was placed under an injunction about three decades ago after it was determined unconstitutional due to case law at the time. However, the legal landscape surrounding abortion in the U.S. changed in 2022, when the Supreme Court of the United States ruled that the Constitution does not guarantee a right to abortion in the U.S. That meant states could go as far as banning access to the practice.

Although the Guam ban was made inert with the injunction, it was never explicitly repealed from Guam law.

But after examining the law, the Guam Supreme Court determined at the end of October 2023 that the ban was repealed by implication through the enactment of subsequent laws allowing for and regulating abortion.

Moylan was moving to open up enforcement of the ban at the federal courts, where his case was on appeal at the 9th Circuit when the Guam Supreme Court made its decision.

The attorney general petitioned the U.S. Supreme Court to review the decision, but was denied.

Back at the 9th Circuit, Moylan requested a new briefing schedule, but the governor argued that the case is moot, stating that the 9th Circuit does not have appellate authority over the Guam Supreme Court.

As an initial matter, the AG argued that the Guam Supreme Court lacked subject matter jurisdiction to make its decision on the abortion ban. The governor stated the 9th Circuit should not entertain that argument.

"Now that he has exhausted his appellate remedies, AG Moylan has returned to this court, seeking to raise arguments that the U.S. Supreme Court has declined to hear, collaterally attacking the Guam Supreme Court's decision on a matter purely of Guam law. ... There is no right of appeal from state and territorial supreme courts to the federal courts," the governor stated in her response to Moylan.

The 9th Circuit order requiring Moylan to explain why the case should not be dismissed as moot was issued on Nov. 7, and gave Moylan 21 days to make his argument.

P.L. 20-134 would have prohibited abortions at all stages of pregnancy on Guam, with limited exceptions related to medical intervention and ectopic pregnancies.