### IN THE SUPREME COURT OF GUAM

IN RE : REQUEST OF LOU R DES A. LEON GUERRERO, I MAGA’ HÅGAN GUÅHAN , RELATIVE TO THE VALIDITY AND ENFORCEABILITY OF PUBLIC LAW NO. 20
- 134 .

Supreme Court Case No . C RQ23

- 001



### OPINION

Cite as: 2023 Guam 11

Reque st for Declaratory Judgment Pursuant to Section 4104 of Title 7 of the Guam Code Annotated Argued and submitted on July 25, 2023

Hagåtña , GuamIn r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 2 of 41 Appearing for Petitioner I Maga’hågan Guåhan : Leslie A. Travis, Esq. Jeffrey A. Moots, Esq. Offic e of the Governor of Guam Ricardo J. Bordallo Governor ’ s Complex Adelup, GU 96910 Appearing for Respondent Attorney General of Guam : Douglas B. Moylan, Esq. Attorney General of Guam Office of the Attorney General ITC Bldg. 590 S. Marine Corps Dr ., Ste

. 801 Tamuning, GU 96913 Appearing for Amici Curiae William S. Freeman, M.D. ; Bliss Kaneshiro, M.D., M.P.H. ; Shandhini Raidoo, M.D., M.P.H. ; Famalao’an Rights ; and the American Civil Liberties Union: Anita P. Arriola, Esq. Arriola Law Firm 259 Martyr St ., Ste. 201 Hagåtña , GU 96910 Vanessa L. Williams, Esq. Law Office of Vanessa L. Williams, P.C. GCIC Bldg. 414 W. Soledad Ave., Ste. 500 Hagåtña , GU 96910 Appearing for Respondent I Liheslaturan Guåhan : Michael F. Phillips, Esq. Phillips & Bordallo, P.C. 410 West O’Brien Drive Hagåtña, Guam 96910 Appearing for Amicus Curiae Robert Klitzkie: Braddock J. Huesman, Esq. Deborah E. Fisher, Esq. Fisher Huesman P.C. Core Pacific Bldg. 545 Chalan San Antonio, Ste. 302 Tamuning, GU 96913
Amicus Curiae Timothy J. Rohr , appearing pro seIn r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 3 of 41

BEFORE: ROBERT J. TORRES , Chief Justice; F. PHILIP CARBULLIDO , Associate Justice; and JOHN A. M ANGLONA , Justice Pro Tempore

.
TORRES , C. J.: [1] In 2022, the Supreme Court of the United States issued a watershed dec ision in Dobbs v. Jackson Women’s Health Organization , 597 U.S.

--- - , 14 2 S. Ct. 2228 (2022). Dobbs overturned decades of precedent, most significantly Roe v. Wade , 410 U.S. 113 (1973), which held that a woman’s right to obtain an abortion was implicit in the D ue P rocess C lause of the 14th Amendment. In the wake of Dobbs , states and territories a re left to determine the legality of abortion without the constitution al shield provided by Roe

. [2] Guam is no exception. Earlier this year, the Attorney Gener al of Guam, Douglas Moylan, filed in the District Court of Guam to revive Public Law 20

- 134, a 1990 law instituting

a broad ban o n abortion in Guam

. P.L. 20

- 134 ha s b een permanently enjoined since its passage because federal courts concluded it was uncons titutional

. Guam Soc ’y of Obstetricians & Gynecologists v. Ada , 776 F. Supp. 1422, 1426 (D. Guam 1990), aff ’ d , 962 F.2d 1366 (9th Cir. 1992), as amended (June 8, 1992 ). According to the Attorney General, since Roe is no longer good law, P.L. 20

- 134 shoul d be enforceable

. Besides opposing the Attorney General in federal
court, Petitioner Lourdes A. Leon Guerrero, I Maga ’ hågan Guåhan (“the Governor”), filed a Request for Declaratory Judgment under 7 GCA § 4104 requesting that this court declare P.L. 20

- 134 void ab initio or that it had been impliedly repealed by subsequent acts of the Guam Legislature. Req. Declaratory J. (Jan. 23, 2023). Given the salience o f this issue , we invited interested parties across Guam to weigh in on the Governor’s r equest. [ 3] W e hold that P.L. 20

- 134 has been impliedly repealed by the Guam Legislature and no longer possesses any force or effect in Guam.In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 4 of 41

I. FACTUAL AND PROCEDURAL BACKGROUND A. The Dispute [4] In 1973, the U.S. Supreme Court declared criminalizing abortion in most instances violated a woman’s constitutional right of privacy, implicit in the Due Process Clause of the 14th Amendment. Roe , 410 U.S. at 154 , overruled by Dobbs , 597 U.S. at

---- , 142 S. Ct. at 2242

. In March 1990, the Guam Legislature passed P.L. 20

- 134, which was signed by Governor Joseph A. Ada. P.L. 20

- 134 contained a broad ban on abortion, establishing criminal penalties for: (1) any person, including medical professionals, providing or administ ering drugs or employing means to cause an aborti on, (2) any woman soliciting and taking drugs or submitting to an attempt to cause an abortion, and (3) any person who solicits any woman to submit to any operation, or us es any means, to cause an abortion. Guam Pub. L. 20

- 134 :3

- 5 (Mar. 19, 1990)

. [5] L ess than a week after P.L. 20

- 134 was passed, a complaint was filed in the District Court of Guam, alleging the law violated the First, Fourth, Fifth, Eighth, Ninth, Thirteenth , and Fourteenth Amendments to the U.S. Constitution , the Organic Act of Guam , a nd 42 U.S.C. A. § 1983. Guam Soc ’y of Obstetricians , 776 F. Supp. at 1426. The District Court concluded Roe v. Wade applied to Guam , deciding that Congress intended the people of Guam “would from 1968 onward be afforded the full extent of the constitution al protections added to Guam’s Bill of Rights, as those rights are found in the United States Constitution and as they are construed and articulated by the United States Supreme Court

. ” Id. at 1427

- 28. The District Court permanently enjoined the enforcem ent of P.L. 20

- 134 and declared sections two through five “unconstitutional and void under the U.S. Constitution, the Organic Act and 42 U.S.C. § 1983.”
Id. at 1432.In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 5 of 41
[6] On appeal, the Ninth Circuit affi rmed the permanent injunction. Guam Soc ’y of Obst etricians & Gynecologists v. Ada , 962 F.2d 1366, 1374 ( 9th Cir. 1992). The Ninth Circuit determined the Mink Amendment to the Organic Act extended the Due Process Clause of the 14th Amendment to Guam, and therefore Roe applied to Guam. Id. at 1370. Desp ite (and possibly because of) the District Court of Guam’s permanent injunction, the Guam Legislature

never expressly repealed P.L. 20

- 134. [7] T he Dobbs decision overrul ed Roe and Planned Parenthood of South eastern Pennsylvania v. Casey , 505 U.S. 833 (1 992) , and decid ed the right to abortion is not protected by the U.S. Constitution. Dobbs , 597 U.S. at

---- , 142 S. Ct. at 2242. Consequently, the Attorney General of Guam issued a Notice of Motion to Dissolve Injunction of Guam Public Law 20

- 134. In thi s Notice of Motion, the A ttorney General expressed an intention to vacate the injunction by the end of January, noting the Attorney General ’s Office is “duty

- bound” to seek the injunction’s dissolution. Req. Declaratory J. , Ex. 2 at 1 (Notice Mot. Dissolv e Inj., Jan. 11, 2023 ). [8] As we have the authority to interpret Guam ’ s laws and are “ the final arbiter of questions arisin g through the jurisdiction of the courts of Guam ,” Underwood v. Guam Election Comm ’ n , 2006 Guam 17 ¶ 35 , the Governor requested th is court issue a judgment declaring: (1) P.L. 20

- 134 void forever, such that it cannot be revived following the reversal of Ro e v. Wade , (2) that the Guam Legislature did not have the authority to pass P.L. 20

- 134 pursuant to the Organic Act, and P.L. 20

- 1 34 is therefore void ab initio and invalid, and (3) to the extent P .L. 20

- 134 is not void or otherwise unenforceable, it has b een repealed by implication through subsequent changes in Guam law. Req. Declaratory J. at 25

- 26. We agreed to hear Question s 2 and 3. Order (Feb. 18, 2023). On March 24, 2023, the District Court of Guam denied the Attorney General’s
Motion to Dissolve the Permanent Injunction , finding he did not meet his burden that “ changedIn r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 6 of 41 circumstances warrant[ed] relief.” Civ. Case No. 90

- 0 0013 ( Order Den

. M ot. Dissolve a t 4 (Mar

. 24, 2023) )

. The Attorney General has since appealed , and that matter is awaiting resolution in the Ninth Circuit.
B. The Filings [9] In our February 18, 2023 Order, we designated the Attorney General of Guam as a
R espondent, having inferred he does n ot view P.L. 20

- 134 as void ab initio or having been impliedly repealed. Order at 6 (Feb. 18, 2023). We also recognized the Governor’s Q uestions concerned the powers and authority of the Guam Legislature and invited th e Legislature to participate as a Re spondent. Id. Further, “[c]ognizant of the importance and salience of this issue to so many stakeholders on Guam,” we invited any party to file an amicus curiae brief. Id. The filings received and the positions taken are briefly summarized below. 1. The Governor [10] The Governor contends P.L. 20

- 134 is void ab initio because the Guam Legislature was acting ultra vires , in violation of the Organic Act, when it passed the law. Alternatively, the Governor maintains P. L. 20

- 134 has been impliedly repealed by subsequent legislation regulating abortion care in Guam. 2. The Attorney General [11] The Attorney General asks this court to dismiss the matter for lack of jurisdiction. In responding to the Governor’s contentions, the Attorney General argues the G uam Legislature was not acting ultra vires when it passed P.L. 20

- 134. The Attorney General further asserts P.L.
20

- 134 was not impliedly repealed because P.L. 20

- 134 was not “in existence” when the subsequent statutes re gulating abortion were passed. Fi nally, the Attorney General asks this
court to order a referendum on the validity of P.L. 20

- 134.In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 7 of 41
3. The Legislature [12] The Legislature argues that despite the law being unconstitutional when it was passed,
P.L. 20

- 134 rema ins “ on the books” until the Guam Leg islature repeals or amends it. The Legislature agrees that whether P.L. 20

- 134 was impliedly repealed is a matter for this court to decide, though it declines to wade into th is debate. 4. Amic i supporting the Governor : William S. Freeman, M.D., Bliss Kaneshiro, M.D., M.P.H., Shandhili Raidoo, M.D., M.P.H., Famalao’an Rights, and the American Civil Liberties Union [13] Amic i curiae William S. Freeman et al. are concerned with the First Amendment implications surrounding P.L. 20

- 134, as medical professionals may be prosecuted for advising patients about abortion as an option and the ability to obtain abortion care in Hawai‘i. Amic i Freeman et al. argue P.L. 20

- 134 was a legal nullity the moment it was passed, and, becaus e the referendum required by section 7 of the law was a condition precedent that never occurred, the ban cannot be revived. 5. Amic i supporting the Attorney General

a. Robert Klitzkie 1 [ 14] Amicus Robert Klitzkie maintains this court should either dismiss the Pe tition because there is no constitutional standing or abstain from resolving the Governor’s Q uestions. He
argues that under this court’s precedent, there is no jurisdiction to hear the case or issue an advisory opinion.

1 Officially, Amicus Klitzkie filed his amicus brief in support of nei ther party. See Klitzkie Br. at 11 n.3 (Mar. 31, 2023) . We group him with the Attorney General because the latter has adopted Amicus Klitzkie’s position that there is no injury in fact in this case. Additionally, the Attorney General has filed a separat e Motion to Dismiss which would achieve the same result as Amicus Klitizkie’s ultimate position, which is for this court to decline to exercise jurisdiction in this case. See id. at 22.In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 8 of 41

b. Timothy J. Rohr [15] In additio n to his challenge to this court’s jurisdiction under 7 GCA § 4104 that this is not a “matter of great public interest,” Am icus Timothy J. Rohr contends that P.L. 20

- 134 was not repealed by implication, as subsequent abortion legislation was simply a resul t of the Legislature following other jurisdictions and affirming the constitutional right to abortion “only because it
had to.” Rohr Br. at 3 (Mar. 13, 2023)

. II. JURISDICTION [16] We have original jurisdiction over declaratory judgment actions regard ing “the interpretation of any law, federal or local, lying within the jurisdiction of the courts of Guam to decide, and upon a ny question affecting the powers and duties of [ I Maga’håga ] and the operation of the Executive Branch, or I Liheslaturan Guåhan , respectively.” 7 GCA § 4104 ( added by P.L. 29

- 103:2 (July 22, 2008) ); In re R equest of Leon Guerrero , 2021 Guam 6 ¶ 8 (per curiam) ; In re Request of Calvo , 2017 Guam 14 ¶ 5. [17] Yet, before we can address the merits of the Governor’s request, several p arties now challenge the jurisdiction of this court. Amicus Klitzkie argue s the Governor fails to show she has suffered an injury in fact , and so this case must be dismissed based on our decision in In re A.B. Won Pat International Airport Authority , 2019 Guam 6 (“ Airport Case ”)

. Amicus Rohr alleges that the Governor’s request does not concern a “matter of great public inter est” as required by 7 GCA § 4104. The Attorney General has also moved to dismiss this proceeding, arguing this court “lack[s] subjec t matter jurisdiction because the injunction [on P.L. 20

- 134] remains, and the questions [posed by the Governor] are not ri pe and/or moot at this time.” Mot. Dismiss at 3 ( Apr. 3, 2023 ). For the reasons below , we determine we have jurisdiction to reach
t he merits of the case ; the requests to dismiss are therefore denied

.In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 9 of 41
A. Standing and the Airport Case [18] We have previously art iculated that p arties seeking to invoke this court ’ s jurisdiction
must generally show Article III standing. Benavente v. Taitan o , 2006 Guam 15 ¶ ¶ 1 7

- 18 ( noting that “ s tate courts have observed that the traditional rules of standing apply ” with limited exceptions)

. We have referred to the se “traditional standing requirements” as “constitutional standing

. ” Airport Case , 2019 Guam 6 ¶ 16. Constitutional standing requires a party to show :

“ (1) it has suffered an ‘injury in fact’; (2) that the inj ury can be fairly traced to the challenged action taken by the defendant; and (3) that it is likely and beyond mere speculation that a favo rable decision will remedy the injury sustained.” Id. ¶ 17 (quoting Guam Mem’l Hosp. Auth. v. Superior Court , 2012 Guam 17 ¶ 10) (internal quotation marks omitted). Though this c ourt is not an Article III court constitutionally bound to require parties t o establish standing, we nevertheless have adopted “ traditional standing requirements ” based on Article III p rincipals and

“ deriv [ed] guidance ” from both state and federal courts

. Guam Mem’l Hosp. , 2012 Guam 17 ¶ 9. [19] This case presents the opportunity to further clarify the origin and role of standing in Guam jurisprudence. Though grounded in the U.S. Constituti on’s case

- or - controversy requirement, in the federal system , “ [t] he law of Art. III standing is built on a single basic idea

— the idea of separ ation of powers.” TransUnion LLC v. Ramirez , 594 U.S.

---- , 141 S. Ct. 2190,
2203 (2021) (quoting Raines v. Byrd , 521 U.S. 811, 820 (1997)). The role of the judiciary is limited: the doctrine of standing “prevents courts of law from undertaking tasks ass igned to the political branches.” Lewis v. Casey , 518 U.S. 343, 349 (1996). “ When the federal judicial
powe r is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, [standing] implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article II I .” Flast v.In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 10 of 41
Cohen , 392 U.S. 83, 96 (1968)

. Thus, “ [f] ederal judicial power is limited to those disputes which confine federal courts to a rule c onsistent with a system of separated powers and which are traditionally thought to be capable of resolution t hrough the judicial process. ” Id. at 97

. [20] As the Constitution divides power separately and equally between three branches of federal governmen t, so too does the Organic Act divide the branches of government in Guam. We find that this similarity in separation of power compels our independent judic iary to require standing to assert claims before our courts. Standing ensures the political branche s do not abdicate their responsibility in setting the public policy for Guam. Furthermore, our authority is limited to “

justiciable controversies and proce edings.” 7 GCA § 3107(a) (2005). Thus, our jurisdiction is constrain ed to disputes that are “ appro priate for judicial determination ” rather than those that are “ hypothetical , ” “ abstract , ” or “ academic

. ” Maeda Pac. Corp. v. GMP Haw

. , Inc. , 2011 Guam 20 ¶ 19

. We reaffirm our commitment to a clear separation of powers between the judiciary and the polit ical branches of government by imposing traditional standing requirements on parties before this c ourt

. This is the balance struck by the Organic Act in s etting up the government for Guam , and standing is how the principle is effectuated in the judicial b ranch. [21] W e are also aware that the Organic Act grants the Legislature the ability to expand this court’s original jurisdiction by law. 48 U.S.C.A. § 1424

- 1(a)(1) (Westlaw current through Pub.
L. 118

- 19 (2023)) . We have reconcile d this grant of auth ority to the Legislature and the principle of separation of powers by recognizing that “ standing is a self

- imposed rule of restraint.” Benavente , 2006 Guam 15 ¶ 16 ( quoting Gutierrez v. Pangelinan , 276 F.3d 539, 544 (9th Cir. 2002) ). As the U.S. Supreme Court has explained : The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of

. . .In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 11 of 41

G overnment. Such problems arise, if at all, only from the substantive issues the individual seeks to have adjudicated. Thus, in terms of Article III limitat ions on

.

. . jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. It is for that reason that the emphasis in standing problems is on whether the party invoking

. . . jurisdiction has ‘a person al stake in the outcome of the controversy,’ and whether the dispute touches upon ‘the legal relations of parties having adverse legal interests.’
Flast , 3 92 U.S. at 100

- 01 (first quoting Baker v. Carr , 369 U.S. 186, 204 (1962); and then quoting Aetna Li

fe Ins. Co. v. Haworth , 300 U.S. 227, 240

- 41 (1937))

. Because we are committed to a clear separation of powers, we will not use the “injury in fact” prong of constitutional standing to “ undermine [] the separation of powers by invading the power of the leg islature to create rights. ” See Comm. to Elect Dan Forest v. Emps. Pol. Action Comm. , 2021

- NCSC

- 6, ¶ 56, 853 S.E.2d 698, 721

. Where , as here, the case is presented in “ an adversary context and in a form historically viewed as capable of judicial resoluti on , ” we will reach the merits despite the lack of an injury in fact if the case does not “ raise separation of powers problems related to improper judicial interference in areas committed to other branches of

. . . Government .” See Flast , 392 U.S. at 100

- 0 1

. [22] To be clear, this is a narrow exception to the “traditional rules of standing , ” see Benavente , 2006 Guam 15 ¶ ¶ 17

- 18 , that can not be invoked arbitrarily. Cf. People v. Tennessen , 2010 Guam 12 ¶ 24 (per curiam) (“ Thus, in an abundance of caution, a nd in the spirit of judicial transparency, this panel will pass on the standing issue and address the merits of Moylan ’ s requests for disqualification. ”). Rather, we will look to established doctrines in American jurisprudence where courts have found it j ustifiable to rule despite a lack of an injury in fact

. New Mexico provides a notable example. Though there is no constitutional pro vision requiring Article III

- like standing, New Mexico state courts have “long been guided by the traditionalIn r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 12 of 41
federal stan ding analysis.” See ACLU of N.M. v. City of Albuquerque , 2008

- NMSC

- 045, ¶ 10, 144 N.M. 471, 188 P.3d 1222. Despite this , the New Mexico Supreme Court has recognized a n exception for cases involving “matters of great public importance.” Id. ¶ 33 (citing State ex rel. Sego v. Kirkpatrick , 1974

- NMSC

- 059, ¶ 7, 86 N.M. 359, 524 P.2d 975). This exception can be invoked when “the case pr esents a purely legal issue

. . . . ” State ex rel. League of Women Voters of N.M. v. Advisory Comm. to N.M. Compilation Comm ’ n , 2017

- NMSC

- 025, ¶ 10 , 401 P.3d 734 (citation omitted). [23] We find this exception is consistent with Guam jurisprudence as well. In our earliest cases dealing with th is statute, we commented that 7 GCA § 4104 could be used even when the test for sta nding used by federal courts was not met. 2 See In re Request of Gutierrez , 2002 Guam

2 Although we have referred to “traditional rules of standing , ” Ben avente v. Taitano , 2006 Guam 15 ¶ 18 , and “t raditional s tanding requirements ,” Guam Mem ’ l Hosp. Auth. v. Superior Court , 2012 Guam 17 ¶ 9 , that are based upon Article III principles that “ we do not reject ,” Benavente , 2006 Guam 15 ¶ 17 , we note that “ the t est for standing that remains the law of standing at the federal level today ” is quite modern , s ee Comm. to Elect Dan Forest v. Emps. Pol. Action Comm. , 2021

- NCSC

- 6, ¶ 5 5 , 853 S.E.2d 698 , 72 0

- 21

. As the North Carolina Supreme Court has observed in their t horough recounting of the history of standing:

In 1992, with an opinion writ ten by Justice Scalia, the Supreme Court dramatically altered the law of standing in Lujan v. Defenders of Wi ldlife , 504 U.S. 555 (1992), when the Court held for the first time th at plaintiffs had no standing to bring suit under a congressional statute aut horizing suit because they lacked “injury in fact.”

. . .

. . . . [T] he very notion of a standing requirement under Article III only arose in the twentieth century.

. .

. For mos t of the twentieth century, standing existed where there was invasion of a legal right under the common law, a statute, or the Constitution. The Supreme Court long emphasized a function al and pragmatic approach to the question of standing, focused on “con crete adverseness,” generally limiting this concern to constitutional questions, and significantly expanded the categories of claims that could support standing. However, that expansion was reversed, first in the context of taxpayer and citizen sui ts and, later with the adoption of an “injury in fact” requirement, which has been increasingly used to constrain access to federal courts even where a statute creates a right to sue. Ultimate ly the Court adopted a restrictive interpretation of injury

- in

fact th at applied its substantially tightened requirements for standing to attack the constitutionality of acts of the other branches based on taxpayer or citizen standing beyond that context t o rights actually created by Congress. Id. ¶ ¶ 54 , 57

. In disti lling “ traditional” standing principles from Article III , we are not bound by Lujan ; we may also find guidance in the Court’s “ attempt to expand standing under the injury

- in

- fact test announced in [ Ass’n of DataIn r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 13 of 41 1 ¶ 16 (“ [H] earing a matter before it has ripened into a true case or controversy ‘avoid[s] the necessity of creating harm to some party in order to have a decision.’” (s econd alteration in original) (quoting 7 GCA § 4104 cmt.) ). We have continued to provide judgments under this statute even when an inj ury in fact was likely nonexistent. 3 See In re Request of Camacho , 2006 Guam 5 (providing declaratory judgment on whethe r a future governor could withdraw from a contract signed by a predecessor). Title 7 GCA § 4104 is a unique statute ; o nly the Governor and the Legislature may seek declaratory relief in this manner. 7 GCA § 4104. And they may obtain such relief only if a strict jurisdictional test is met. See In re Request of Gutierrez , 2002 Guam 1 ¶¶ 14

- 15. One criterion of this test is that the request involve a matter of “great public interest.” 7 GCA § 4104. [24] We hold that where the Legislature or the Governo r has satisfied the jurisdictional requirements of 7 GCA § 4104, we will reach the merits of the declaratory action in the absence of an injury in fact if the case present s a purely legal issue in an advers ary context that is capable of judicial resolution

. See Flast , 392 U.S. at 100

- 01

. R ecogniz ing this narrow exception do es
not raise separation of powers problems , but rather respect s the principle that the government of Guam is comprised of three separate but co

- equal branches of government. This is be cause relief can be granted to one of the political branches only when the matter is of great public interest. Any issue that satisfies the jurisdictional test of section 4104 will therefore also qu alify for the great public interest exception to “injury in fact

. ”

Processing Serv. Orgs., Inc. v. Camp , 397 U. S. 150 (1970) , ] and the adoption of a pragmatic and functional approach to the question in [ Baker v. Carr , 369 U.S. 186 (1962),] and [ Flast v. Cohen , 392 U.S. 83 (1968) ]

. ” See i d. ¶ 51

.

3 This court has dealt with only one instance of declaratory relief under 7 GCA § 4104 since the Airport Case

. See In re Request of Leon Guerrero , 2021 Guam 6. There, no party raised standing , and so that case made no mention of what effect, if any, the Airpor t Case had on section 4104 review

.In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 14 of 41

B. Statutory Requirements of 7 GCA § 4104 [25] Having determined the lack of an injury in fact is not fatal to our ability to adjudicate this matter, we next turn to whether the statutory requir ements of 7 GCA § 4104 have been met. [T]o pass ju risdictional muster, a party seeking a declaratory judgment must satisfy three requirements: (1) the issue raised must be a matter of great public importance; (2) the issue must be such that its resolution through the normal process of law is inappropri ate as it would cause undue delay; and (3) the subject matter of the inquiry is appropriate for section 4104 review. In re Request of Gutierrez , 2002 Guam 1 ¶ 9. In our February Order, we determined the statutory requirements were met for two of the thre e q uestions posed by the Governor. Order at 5 (Feb. 18, 2023). We stand by the analysis in that Order and shall only summarize here

. [26] “ [ P ] ublic interest

. . . signifies an importance of the issue to the body politic, the community, in the sense that t he operations of the government may be substantially affected one way or the other by the issue’s resolution.” In re Request of Leon Guerrero , 2021 Guam 6 ¶ 15 (al terations in original) (quoting In re Request of Gutierrez , 2002 Guam 1 ¶ 26). “[T]he issue presented must be significant in substance and relate to a presently existing governmental duty borne by the branch of government that requests the opinion.” In r e Request of Gutierrez , 2002 Guam 1 ¶ 26 (citation omitted). W hether P.L. 20

- 134 is a valid , viable law will substantially affect the operations of the Legislature, the Governor and subordinate agencies , and the Judiciary. The impact these Questions have on the e xecutive branch is particularly notable, as agencies charged with the enforcement o f this legislation may arrest individuals for engaging in certain conduct

— resulting in significant consequences. [27] Amicus Rohr argues since so few abortions happen in Guam, the matter of abortion is not of “great public interest , ” so jurisdiction is wa nting. Rohr Br. at 4. There are three problems with his contention. First, although we find it unnecessary to reach on other grounds, the ultraIn r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 15 of 41

vires Question is un affected by this argument. Though the Question involves the matter of abortion since it was the subject of P.L. 20

- 134, its real thrust is the authority of the Legislature to pass laws that conflict with the U.S. Constitution and the Organic Act. There is no connection between resolving that Question and the number of abortions performed in Guam. Second, Rohr’s count o f the people a ffect ed by P.L. 20

- 134 is an understatement. Apart from the act of gett ing an abortion, P.L. 20

- 134 also criminalized soliciting abortions , and people could be charged merely for encouraging another to have an ab ortion

. P.L. 20

- 134:3

- 5 ; see also Pet ’ r’s Br. at 25 (Mar. 10, 2023) (quoting Guam Soc ’y of Obstetricians , 776 F. S upp. at 1426 ) ( discussing arrest of director of ACLU’s Reproductive Freedom Project for informing audience abortions could be obtained in Haw ai ʻ i)

. P olice, prosecutors, and other government officials are also tasked with enforcing P.L. 20

- 134. Third and finally, this court has never used a n empirical test for determining whether matters are of great public interest , and Amicus Rohr cites no

a uthority for us to impose one now. His brief is also non - responsive to how the Governor’s Questions fail this court’s current test for evaluating matters of great public interest. Thus, we
find the Q uestions posed by the Governor concern a matter of grea t public interest. [28] The second statutory requirement for declaratory judgments is that the normal process of la w could cause undue delay. The pending appeal in the federal courts creates great uncertainty on when the federal injunction of P.L. 20

- 134 will be fully resolved

. The Governor’s implied

repeal Q uestion is purely a matter of local Guam law over which thi s court is the final authority. We find this requirement is met. [29] That leaves only the appropriate

- subject

- matter prong , which is easil y satisfied. To determine whether the subject matter is appropriate, we have stated that requests for declaratory relie f must ask this court for “(1) an interpretation of an existing law that is within its jurisdictionIn r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 16 of 41
to decide; or (2) an answer to any q uestion affecting [the Governor’s] powers and duties as governor and the operation of the executive branch.” In re Requ est of Calvo , 2017 Guam 14 ¶ 14 (quoting In re Request of Gutierrez , 2002 Guam 1 ¶ 11). The ultra vires Question ask s this court to int erpret the Organic Act regarding the proper authority of the L egislature

. When the
L egislature acts beyond its authority, the separation of powers doctrine is violated if the

“ [i] nvalid legislative actions ‘ impinge upon the Governor ’ s authority. ’ ” In re Request of Leon
Guerrero , 2021 Guam 6 ¶ 23 (citation omitted)

. “ S eparation of powers questions are proper subje ct matter for declaratory judgment actions.” Id. ¶ 12. This jurisdictional requirement is also met for the i mplied

- r epeal Question. The Gover nor is asking whether the Women’s Reproductive Health Information Act of 2012, the Partial

- Birth Abortion Ban Ac t of 2009, a long with the enactment of 19 GCA §§ 4A101

- 102, 4A107, and 4A109 implied ly repeal ed P.L. 20

- 134. Req. Declaratory J. at 21

- 24. T hi s request is asking this court to interpret local law

— the effect the se statutes did or did not have on P.L. 20

- 134

. T his prong is satisfied. [30] Thus, the ultra vires and implied

- repeal Question s meet the test imposed by section 4104 , which confers juris diction on this court to provide declaratory relief. C. The A ttorney G eneral ’s Motion to Dismiss [31] Before turning t o the merits of the Governor’s Q uestions, there is on e other issue to address : the Attorney General’s Motion to Dismiss. In his Motion, the Attorney General argues this court “lack[s] subject matter jurisdiction because the injunction [on P.L. 20

- 134] rem ains, and the questions [posed by the Governor] are not ripe and/or moot at this time.” Mot. Dismiss at 3. He also claims the Petition no longer presents a “case or controversy” for this court to adjudicate. Id. at 5. Nowhere does the Attorney General mention the typical standing requirements of injury in fact, traceability , and redressability . In any event, any issues aboutIn r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 17 of 41 standing have been addressed by Part II.A of this Opinion. To the extent the Attorney General
argue s the Governor’s Petition does not satisfy the statutory jurisdiction requirements of 7 GCA § 4104, that is addressed in Part II.B. [32] This leaves the argument that the Governor’s Petition is not “ ripe and/or moot. ” Id. at 3.

“ ‘ [R]ipeness is peculiarly a q uestion of timing. ’ ‘ [I]ts basic rationale is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements. ’ ” Thom as v. Union Carbide Agr ic . Prod s . Co. , 473 U.S. 568, 580 (1985) (alterations in original) (ci tations omitted) . The Governor’s Questions are pure questions of law , and there is no need for further facts to develop. It would be inconsistent to say that not answering the Governor’s Questions would lead to an undue delay yet declare the matter not r ipe for judicial review. A ny ripeness concerns have already been resolved with finding the undue delay requirement has been
met

. [33] Finally, this matter is not moot. Cases generally become moot “when the issues are no longer live or the parties lack a legally cognizable interest in the outcome.” Town House Dep ’ t Stores, Inc. v. Ahn , 2000 Guam 32 ¶ 9 (quoting United States v. Ripinsky , 20 F.3d 359, 361 (9 th Cir. 1994) ). “[I]ntervening events or changed circumstances that make it impossible for a reviewing court to grant the complaining party effectual relief will render a case moot.” Linsangan v. Gov ’ t of Guam , 2020 Guam 27 ¶ 30 (per curiam) (alteration in orig inal) ( citation omitted). However, “ [ t ] he mootness doctrine is ‘ flexi ble and discretionary; it is not a mechanical rule that we invoke automatically. ’ ” In re Guardianship of Ulloa , 2014 Guam 32 ¶ 39 ( quoting In re Guardianship of Tschumy , 853 N.W.2d 728, 737 (Minn. 2014) ). We have “authority to decide cases that are technically moot when those cases are functionally justiciable and present important questions of [islandwide] significance.” Id. (quoting Tschumy , 853 N.W.2d at 737).In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 18 of 41
As discussed above, t he Questions presented by th e Governor raise matters of great public importance

. Our standing discussion also highlights that this case is functionally justiciable

. As we are “ the final arbiter of questions arising through the jurisdiction of the courts of Guam (short of final cert iorari review by the United States Supreme Court) , ” Underwood , 2006 Guam 17 ¶ 35 , no i ntervening events or changed circumstances created by the Ninth Circuit will make it

“ impossible ” for us to grant declaratory relief on a pure ly legal issue interpreting local Guam law , see Linsangan , 2020 Guam 27 ¶ 30 ; c f. Webster v. Mesa , 521 F.2d 442, 443 (9th Cir. 1975) (“ While the completion of the election makes injunctive relief moot, declaratory relief is still available. ”)

. T he issue i s not moot. We deny the Attorney General ’s Motion to Dismiss. III. STANDARD OF REVIEW [34] “For cases brought before this court pursuant to our original jurisdiction, all issues are determined in the first instance.” In re Request of Leon Guerrer o , 20 21 Guam 6 ¶ 20 (quoting In re Request of Camacho , 2006 Guam 5 ¶ 12). IV. ANALYSIS [35] With the jurisdictional issues resolved , we now turn to the merits of the Governor’s request. As the Governor presents her Questions in the alternative , Pet ’ r’s Br. a t 38, w e reach only the implied

- repeal argument

. 4 S ee Barrett

- Anderson v. Camacho , 2018 Guam 20 ¶ 30 ( “[W] here statutes can be construed to avoid constitutional questions, this court will not answer the question of constitutionality or organicity. ” ).

4 While t he court is unanimous on i mplied repeal, t he concurrence would also answer the ultra vires question

. See infra (concurring opinion of Carbullido , J.) (“ [T] he Governor properly asked this court to answer an impor tant question about the scope of the power and authority of the Guam L egislature. This question merits an answer. ”).In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 19 of 41
A. Imp lied Repeal [36] The Governor posits that in the years since the District Court of Guam enjoined P.L. 20

- 134, the Guam Legislature has passed several laws forming a comprehensive statutory scheme covering abortion in Guam, which is irreconcilably in confli ct with P.L. 20

- 134. Pet ’ r’s Br. at 30. Because P.L. 20

- 134 cannot be harmonized with subseque nt legislation, the Governor argues
P.L. 20

- 134 has been repealed by implication. Id. at 29. [37] “Implied repeals can be found in two instances: ‘ (1) where pr ovisions in the two acts are in irreconcilable conflict, ’ or ‘ (2) if the later act covers the whole s ubject of the earlier one and is clearly intended as a substitute. ’ ” Sumitomo Const r ., Co. v. Gov ’ t of Guam , 2001 Guam 23 ¶ 16 ( quoting People v. Quinata , No. CR

- 81

- 0004A, 1982 WL 30546, at *2 (D. Guam App. Div. June 29, 1982) ); see also Na t’l Ass’n of Ho me Builders v. Defs

. of Wildlife , 551 U.S. 644, 66 2

- 6 3 (2007) (“We will not infer a statutory repeal ‘ unless the later statute “ expressly contradict [ s ] the original act ”’ or unless such a construction ‘ is absolutely necessary

. . . in order that [ the ] word s [ of the later statute ] shall have any meaning at all. ’ ” (alterations in original ) (quoting Traynor v. Turnage , 485 U.S. 535, 548 (1988)))

. [38] Repeals by implication are generally disfavored, and courts “ must try to read the [ apparently conflicting] statutes in a harmonious manner .” People v. Reselap , 2022 Guam 2 ¶ 54; see also Sumitomo Const r . , 2001 Guam 23 ¶ 16 (“Courts can avoid a finding of implied repeal if the two statutes can be reconciled.”) . In considering whether a later statute repealed an earlier statute, the tenets of statutory construction direct the analysis to first look at the plain meaning to resolve apparent conflicts and cont radicti ons. Reselap , 2022 Guam 2 ¶ 54. “It is a cardinal rule of statutory construction that courts must look first to the language of the statute itself. Absent clear legislative intent to the contrary, the plain meaning prevails.” SumitomoIn r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 20 of 41

Const r . , 2 001 Gua m 23 ¶ 17 (citations omitted) . “Whenever a court is confronted with apparently conflicting legislation, its goal is to ascertain the intent of the legislative body and construe the law accordingly. In determining the legislature’s intent . . . , o ur firs t resort is to the language of the statute itself.” Karlin v. Foust , 188 F.3d 446, 470 (7 th Cir. 1999) (citation s omitted). [39] The Governor contends the Parental Consent for Abortion Act (“PCAA”) codified in 19 GCA § 4A101 et seq
. , the Women’s Reprod uc tive Health Information Act of 2012 (“HIA”) codified in 10 GCA § 3218.1, the Partial

- Birth Abortion Ban Act of 200 8 (“PBABA”) codified in 10 GCA § 91A101 et seq
. , and the Partial

- Birth Abortion and Abortion Report l aw (“Reporting Law”) codified in 10 GCA § 3218 irreconcilably conflict, individually and collectively, with P.L. 20

- 134. Pet ’ r ’s Br. at 29

- 36. [40] The Attorney General responds by arguing that P.L. 20

- 134 did not impliedly repeal subsequent legislation because P.L. 20

- 134 “did not exist” after the injunction in 1990. Resp’t
Att ’ y Gen

. Br. at 26 (Apr. 21, 2023)

. He asserts the Guam Legislature passed the four subsequen t abortion statutes in an attempt to “restrain abortions as much as they could because they knew that the Courts stopped their earlier attempt to make abortions illegal altogether.” Id. at 28. The Attorney General maintains the four statutes do not form a regulatory scheme for abortion in Guam because when the statutes were passed, P.L. 20

- 134 did not exist. Id. at 38

- 39. His arguments here contradict what he filed in the District Court of Guam, where the A ttorney G eneral ’s Office wrote that “ P.L. 20

- 13 4 did indeed conflict with the subsequently enacted legislation.” Civ. Case No. 90

- 00013 ( Att ’ y Gen

. Reply to Pl

. Opp’n Vacate Inj

. at 3 (Mar. 7,In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 21 of 41
2023) )

. 5 His federal filing continues to say, “ I f P.L. 20

- 134 is not void, subsequently enacted legislation would repeal, by implication, P.L. 20

- 134.” Id. at 4. 1. Current Guam l aws r egulating abortion [41] The Governor argues four st atutes

— the PCAA, the HIA, the PBABA, and the Reporting
Law

— irreconcilably conflict with P.L. 20

- 134. We summarize the content of each statute in
turn. [42] T he PCAA gives guidance on consent, specifically regarding pregnant minors. This statute permits the performance of abortion on a minor if consent is received from the minor an d a legal guardian. 19 GCA § 4A102 (added by P.L. 31

- 155:2 (Jan. 4, 2012)) . The statute also permits a minor to bypass the consent requirement with permission from the Superio r Court. Id. § 4A107. The Department of Public Health and Social Services (“D PHSS”) is also mandated under this Act to provide forms for reporting all consent statistics. Id. § 4A106. [43] The HIA elaborates on consent in the abortion context, requiri ng voluntary and informed consent before any abortion procedure. 10 GCA § 3218.1 (a dded by P.L. 31

- 235:2 (Nov. 1, 2012))

. Providers are instructed to give information on the gestational age of the fetus and its anatomical features, possible childcare ser vices and benefits, medical risks, and other scientific information. Id. DPHSS also must provide a checklist certification for a woman to certify that she has received all obligatory information before the procedure. Id.

5 We sua sponte take judicial notice of the Attorney General ’s filing in the pending federal case. We have established that this court ma y sua sponte take judicial notice of certain documents on appeal. See In re San Nicolas , 2022 Guam 8 ¶ 3 n.1. In so doing, we do not mean to ignore the general rule providing t hat courts “ may take judicial notice of a document filed in another court ‘not for the truth of the matters asserted in the other litigation, but ra ther to establish the fact of such litigation and related filings. ’ ” United States v. Jones , 29 F.3d 1549 , 1553 (11th Cir. 1994) (quoting Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc. , 969 F.2d 1384, 1388 (2d Cir. 1992) ). Our judicial notice of the Attorney General ’s filings is only to establish the arguments he presented to the District Court . In other words, the filings establish the position taken by the Attorney General , not whether his position is correct.In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 22 of 41
[44] The PBABA prohibits parti al

- birth abortion, imposing criminal penalties on any physician who knowingly performs or attempts to perform this procedure. 10 GCA § 91A104 (added by P.L. 29

- 115:1 (Nov. 18, 2008)) . Though, this statute does not apply to a partial

- birth abortion to sav e the life of the mother. Id. [45] Finally, the Reporting Law requires an abortion and post

- abortion care report to be completed and shared with the Office of Vital Statistics of DPHSS . 10 GCA § 3218 (as amended by P.L. 33

- 218:7 (Dec. 15, 2016)) . Unde r this statute , the Office of Vital Statistics
must provide , “to physicians performing abortions on Guam,” forms for the abortion reports, and must publish a statistical report based on the previous year’s abortion data. Id. 2. O ther j urisdictions a ddress in g i mpli ed r epeal in the a bortion c ontext [4 6] Following both Roe and Dobbs , jurisdictions around the United States have had to confront implied repeal. T he position Guam is now in is analogous to both past and ongoing cases in other courts.

a. Jurisdictio ns finding implied repeal [47] I n McCorvey v. Hill , the Fifth Circuit addressed a comparable situation and concluded that Texas statutes criminalizing abortion had been repealed by implication, as Texas regulated abortion “in a number of ways.” 385 F.3d 8 46, 849 (5th Cir. 2004). The state had established a comprehensive set of civil regulations governing the availabili ty of abortion for minors, the practices and procedures of abortion clinics, and the availability of state

- funded abortions. Id. The Fift h Circuit determined the existing regulatory provisions could not be harmonized with provisions that purport to crimi nalize abortion: There is no way to enforce both sets of laws; the current regulations are intended to form a comprehensive scheme

— not an a ddendum to the criminal statutes struck down in Roe

. . . . “ [I] t is clearly inconsistent to provide in one statute t hatIn r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 23 of 41 abortions are permissible if set guidelines are followed and in another provide that abortions are criminally prohibited. ” Id. ( quoti ng Weeks v. Connick , 733 F. Supp. 1036, 1038 (E.D. La. 1990) ). [4 8] I n Smith v. Bentley , the United States District Court for the Eastern District of Arkansas considered whether certain abortion statutes had been impliedly repealed. 493 F. Supp. 916, 92 3

- 24 (E.D. Ark. 1980) (per curiam) . The court noted that the statutes had both similarit ies and distinctions, though notably, the regulatory scheme for the performance of legal abortions was “the most significant difference.” Id. at 924. Therefore, the court found the statute criminalizing abortion had been impliedly repealed. Id. [49] T he A CLU, arguing a similar position as the Governor does here, convinced a state circuit court to grant a preliminary injunction on a West Virginia “Criminal Abortion Ban.” Women’s Health C tr. of W. Va

. v. Miller , No. 22

- C

- 556 , slip op. (W. Va. Cir. Ct. July 20, 2022). The court determined that following Roe , the West Virginia Legislature enacted a comprehensive statutory framework, setting forth the circumstances un der which an abortion may be lawfully obtained and addressing patient consent, parental notifi cation, state funding, and state reporting. Id. at 5

- 6. The court found this regulatory scheme irreconcilably conflicted with the Criminal Abortion Ban. Id. at 5. Following this ruling, state lawmakers met to “clarify and modernize” the old ban. Campb ell Robertson, West Virginia Passes Strict Abortion Ban , N.Y. Times (Sept. 13, 2022), https://www.nytimes.com/2022/09/13/us/west

- virginia

- abortion.html

.

b. Jurisdic tions finding no implied repeal [50] A n Arizona Court of Appeals found no implied repeal between a statute permitting physicians to perform elective abortions and a statute prohibiting any abortion after fifteen weeks. Planned Parenthood Ariz

. , Inc. v. Br novich , 524 P.3d 262, 264 (Ariz. Ct. A pp. 2022).In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 24 of 41 The court determined that the statutes could be reconciled and refused to find that a supposed conflict between the laws must result in the repeal of either. Id. at 266. Finding the legislature had “creat ed a complex regulatory scheme to achi eve its intent to restrict

— but not to eliminate

— elective abortions,” the court held that the statutes regulating abortion could “be readily reconciled in conformity with [the] legislature’s express intent.” Id. at 267

- 68. Reading the statutes together, t he court concluded physicians could perform abortions as regulated, and that these physicians would not be subject to prosecution. Id. at 266. [51] In People v. Higuera , the Michigan Court of Appeals found no implied repeal between a statute, which by its exp ress terms prohibited all abortions unless necessary to save the mother’s life, and subsequent legislative enactments about parental consent, informed consent, the prohibition of partial

- birth abortions, and recor d keeping. 625 N.W.2d 444, 448 (Mich. Ct. App. 2001). The court held that, in enacting the later statutes, the l egislature had the clear intent to regulate abortions permitted by Roe and did not intend to repeal the general prohibition of abortions. Id. at 44 8

- 4 9. 3. Subsequent legislation has impliedly repealed P.L. 20
- 134 [52] Turning back to this case , the Governor argues that provisions in subsequently enacted legislation are in irreconcilable conflict with P.L. 20

- 134 . In deciding whether P.L. 20

- 13 4 has been impliedly repealed, this court must consider whether there is any way to construe the statutes at issue so as not to conflict. “We must read the statutes to give effect to each if we can do so while preserving their sense and purpose.” Watt v. Alaska , 451 U.S. 259, 267 (19 81). It is the duty of th e court to “interpret statutes in light of their terms and legislative intent.” Port Auth. of Guam v. Civ. Serv. Comm’n (Javelosa) , 2018 Guam 9 ¶ 15 (quoting Carlson v. Guam Tel. Auth. , 2002 Guam 15 ¶ 46 n.7)

. And “[s]tatutory i nterpretation should always begin withIn r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 25 of 41 the plain language of the statute.” Chargualaf v. Gov ’ t of Guam Ret. Fund , 2021 Guam 17 ¶ 17. The plain language of the statutes is clear. In establishing guidelines and requirements f or the performance of abortion , including conditions surrounding reporting and consent, the statutes enacted after P.L. 20

- 134 provide a scheme for regulating abortion care in Guam

. The Governor correctly observes that P.L. 20

- 134 cannot be harmonized wit h these other abortion

- care statutes. Because P.L. 20

- 134 is so restrictive

— criminalizing “[e]very person who provides, supplies, or administers to any woman, or procures any woman to take any medicine, drug, or substance, or uses or employs any instrumen t or other means whatev er, with intent thereby to cause an abortion”

— the subsequent statutes , providing directive on consent, DPHSS involvement, and the performance of legal abortion procedures, can not be reconciled

. [53] Similar to McCorve y and Higuera , the statutes here govern co nsent, the availability of abortion for minors, and t he practices and procedures of abortion clinics

. T he McCorvey and Higuera courts came down on opposite sides of implied repeal. The difference of decisions is based upon fac tual distinctions between th e two cases. These distinctions illuminate the analysis of our four Guam statutes. In Higuera , the court was not considering the constitutionality of a statute that criminalized all abortions at any time during pregnancy but w as narrowly focused to consi der whether a particular criminal prosecution under the statute would be constitutionally infirm. 625 N.W.2d at 447. While the validity of P.L. 20

- 134 will affect medical professionals, here, the court is not only considering criminal penalty provisions. I n McCorvey , the Fifth Circuit was looking at the constitutionality of a “comprehensive set of civil regulations” governing abortion. 385 F.3d at 849. The Governor relies heavily on this Fifth Circuit decision in arguing imp lied repeal, and significant ly, the Attorney General offer s no response to this case .In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 26 of 41
[54] The Attorney General ’s soundest argument against implied repeal is his contention that the Guam Legislature did not intend to repeal P.L. 20

- 134 when passing subse quent abortion

care legislation. But “ [a] bsent clear legislative intent to the contrary, the plain meaning prevails ,” and he has failed to “ point [] out clear legislative intent ” to keep the general prohibition of abortions to the extent permitted by the f ederal constitu tion

. See Sumitomo Const r . , 2001 Guam 23 ¶ 17

. T he plain text of the later

- enacted statutes overlaps and conflicts with P.L. 20

- 134 , and , therefore , we do not need to consider t he Legislature’s intent in passing the law

. [ 55] We determin e that persuasive authority favors finding P.L. 20

- 134 has been impliedly repealed. Higuera dealt with a far more limited statute than we are facing today, making a considerable difference. The near total ban on abortion imposed by P.L. 20

- 134 cannot be reconci led with subsequent enactments by the Guam Legislature. The logic in Planned Parenthood Arizona, Inc. v. Brnovich , 524 P.3d 262 (Ariz. Ct. App. 2022), may counsel for a finding against implied repeal, but we think it notable that the holding there was tha t the old law did not criminalize abortions made legal by subsequent legislation , see id. at 26 8. Finally, the Attorney General has provided no reason to dissuade us from adopting the Fifth Circuit’s reasoning in McCorvey . We therefore hold that a ssuming P.L. 20

- 134 was a valid law, it has been impliedly repealed 6 by subsequent acts of the Guam Legislature. 7
//
//

6 Notably, this appears to be consis tent with the position taken by the Attorney General in his filings in federal court. See Civ. Case No. 90

- 00013 ( Att ’ y Gen

. Reply to Pl

. Opp’n Vacate Inj

. at 4 (Mar. 7, 2023) ) (“If P.L

. 20

- 134 is not void, subsequently enacted legislation would repeal, b y implication, P.L. 20

- 134

. ”).

7 Because we find P.L. 20

- 134 has been impliedly repealed, we need not and do not address the arguments of Amici Freeman et al. and the Attorney G eneral on the referendum contemplated by P.L. 20

- 134.In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 27 of 41
4. The Attorney General ’s other arguments on implied repeal are unconvincing [56] The Attorney General also argues that Guam’s legislation governing abortion care cannot impliedly repeal P.L. 20

- 134 because P.L. 20

- 134 did not exist at the time of the subsequent
enactments . Considering the Attorney General maintains P.L. 20

- 134 is a valid law in his ultra
vires argument , contending P.L. 20

- 134 did not exist after 1990 here is conflicting and incongruous. The Attorney General is effectively declaring P.L. 20

- 134 to be “Schrödinger’s Law”

— maintaining the law was both invalid and valid while it was enjoined by federal courts. This contradicti on is an untenable position , and we cannot ascribe weight to it.
B. We D ecline to A ddress the Ultra Vires Question [57] Having answered the i mplied

- r epeal Question, we do not believe it necessary to answer the u ltra v ires Ques tion now. Title 7 GCA § 4104 gr ants us discretion to provide relief. Section
4104 draws inspiration from an analogous provision in the Massachusetts Constitution. 7 GCA § 4104 cmt. True, the Massachusetts Constitution “ requires the Justices to respond to such questions when properly put

. ” Op

. of the Justs. to the House of Representat ives , 32 N.E.3d 287, 292 (Mass. 2015) (emphasis added). Crucially, the relevant provision of the Massachusetts Constitution reads: “Each branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the justices of the supreme judicial court.” Mass. Const. Pt. 2, C. 3, art. II (emphasis added). Yet the Florida Supreme Court reads its power in a similar context as discretionary. Advisory Op

. to Govern or re Whether Article III, Section 20(a) of Fla. Con st. Requires Retention of a Dist. in N. Fla. , 333 So. 3d 1106, 1108 (Fla. 2022) (per curiam) (“[A]ssuming the Court has jurisdiction, . . . we exercise our discretion to deny the request for an advisory o pinion.”). Florida’s relevant constitutional provis ion reads: “The
governor may request in writing the opinion of the justices of the supreme court as to theIn r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 28 of 41 interpretation of any portion of this constitution upon any question affecting the governor ’ s

exe cutive powers and duties.” Fla. Const. art. IV, § 1 (c) (emphasis added). [58] Guam’s statute is far more similar to Florida’s than Massachusetts’s. Our statute reads :

“ [ I Maga’håga ] , in writing

. . . may request declaratory judgments from the Supreme Court of
Guam

. . . . The declaratory judgments may be issued only where it is a matter of great public interest and the normal process of law would cause undue delay.” 7 GCA § 4104 (emphasis added). This section of Guam law also impose s non - discretiona ry directives which the Legislature has marked with the word “ shall ” with italics in the statute itself. Id. The language of section 4104 provides declaratory judgments “may be issued” while making clear that such judgments “ shall not be available to pri vate parties.” Id. (emphasis in original). W hile the section does say this court “ shall render its written judgment,” that language at most means this court must provide written answers rather than orally or some other medium. Id. T he placement of that language at the end of the section implies it only controls where the court has agreed to issue a declaratory judgment, rather than impos ing a requirement to issue such judgments. [59] T he i mplied

- r epeal Q uestion is one purely of local Guam law over wh ich this court is the final authority. As the Gov ernor presents her Questions in the alternative, we reach only the implied

- repeal argument . Pet ’ r’s Br. a t 38. Thi s is because the u ltra v ires Q uestion concerns the Organic Act , a nd we will not answer the question of organicity unless it has “ inescapably come before us for adjudication .” Barrett

- Anderson , 2018 Guam 20 ¶ 30 (quoting United States v. Rumely , 345 U.S. 41, 48 (1953) ). Having resolved this case using only local law, we decline to address th e u ltra v ires Question

. //
//In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 29 of 41
V. CONCLUSION [60] Dobbs was a landmark case , chang ing the law on the ability of governments to regulate abortion. Yet this case is not really about Dobbs ; it is far more local in character . In answering the i mplied

- r epea l Question, we dealt only with statutory interpretation of local law. It is up to the political branches of government to set the policy for Guam. T his court, however, interpret s the law as enacted. In r eviewing the Legislature’s enactments , there i s on ly one conclusion: P.L.
20

- 134 has been repealed by implication by subsequent acts of the Guam Legislature. [61] We enter this declaratory judgment: P.L. 20

- 134 has been impliedly repealed by the Guam Legislature and no longer possesses any force or effe ct in Guam.

/s/ /s/ ROBERT J. TORRES JOHN A. MANGLONA Chief Justice Justice Pro TemporeIn r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 30 of 41
CARBULL I DO , J., concurring: [62] I agree with the majority on its juri sdictional analysis and its conclusion that Public Law
20

- 1 34 was impliedly repealed. I further agree that 7 GCA § 4104 confers upon this court discretion to decline to provide relief even when its jurisdictional test is met. Where I part ways, is the de cision to use that discretion in this case . In her ultra v ires Question, the Governor properly asked this court to answer an important question about the scope of the power and authority of the Guam Legislature. This question merits an answer. I agree w ith the Governor that because Roe v. Wade was the law of th e land in 1990, P.L. 20

- 134 was void ab initio , and the Legislature acted ultra vires in passing it.

I. P.L. 20
- 134 Was Void Ab Initio , and Passing It Was an Ultra Vires Act [63] The Organic Act was clear in 1990: “The legislative power of Guam shall ex tend to all subjects of legislation of local application not inconsistent with the provisions of this chapter and the laws of the United States applicable to Guam.” 8 48 U.S.C. § 1423a (19 88 ). A

s traightforward reading of this provision leads to the follo wing interpretation: the legislative power of Guam does not extend to acts inconsistent with the Organic Act; such acts would be beyond the Legislature’s authority. This provision existed i n addit ion to a bill of rights specifically applicable to Guam, al ong with another provision incorporating several constitutional amendments to Guam. See 48 U.S.C. § 1421b (19 88 ). To avoid rend er ing the language in § 1423a mere surplusage, that language must do more than simply allow for the enjoining of laws passed by the Guam Legislature that are in violation of the rights made applicabl e by § 1421b. Harmonizing these provisions leads to the conclusion that inorganic

8 This grant of author ity was amended in 1998 by Pub. L. 105

- 291

. My ultra vires analysis is limited to the Organic Act as it was written in 1990

.In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 31 of 41
laws

— laws that are inconsistent wit h the O rganic Act

— are “not law” and are void ab initio

. See Marbu ry v. Madison , 5 U.S. (1 Cranch) 137, 177

- 78 (1803). [64] Caselaw provides support for this position. This court has noted as far back as 2002 that

“ [a] n unconstitutional act is not a law; it c onf ers no rights; it imposes no duties; it affords no protecti on; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” In re Request of Gutierrez , 2002 Guam 1 ¶ 17 (quoting In re Op

. of the Just s. , 168
N .E. 536, 538 (Mass. 1929) ). 9 In Nelson v. Ada , another releva nt case, the then

- Governor of Guam sought to remove two school board members. 878 F.2d 277, 278 (9th Cir. 1989). According to the Governor, only he could appoint school board members per the Orga nic Act. Id. Notably, Congress amended the Organic Act pr ior to the Governor removing the school board members , and this amendment could have potentially allowed for elected school board members, rather than gubernatorial appointments. See id. at 27 8, 2 80. Still, the court held the change in the Organic Act sh ould not be looked at retroactively. Id. at 280

- 81. Despite the framework of the Organic Act perhaps changing, the court was concerned with the state of the law as it existed when the school boar d members were first appointed. Thus, even when potential changes occur affecting the framework of the local government of Guam, the analysis is the state of the law when legislative action was first taken, not the date of the latest judicial action.

9 I acknowledge that in this portion of In re Re quest of Gutierrez , the court was explaining why declaring acts unconstitutiona l was not an appropriate use of 7 GCA § 4104 review. 2002 Guam 1 ¶ 17. What the Governor is doing here, though, is different. She is not asking this court to declare P.L. 20

- 134 uncon stitutional; that already happened decades ago. Instead, she is askin g this court to interpret the Organic Act to determine the scope of the Legislature’s powers

— a permissible use of 7 GCA§ 410 4 review. See In re Request of Leon Guerrero , 2021 G uam 6 ¶¶ 12, 23.In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 32 of 41
[65] In 1990 , t he Organic Act place d a clear limitation o n the Guam Legislature’s authority: it
d id not have the power to pass laws in violation of the U.S. Constitution. Unconstitutional laws

are no laws at all , having been treated as void by this court as w ell as others. Since P.L. 20

- 134 was unconstitutional in 1 990, passing it was an ultra vires act, the law was void ab initio , and it cannot be revived by judicial action taking place over thirty years later.
II. Neither the Attorney General nor the Leg islature Provide a Convincing Response [66] Neither the Att orney General nor the Legislature offers a convincing rebuttal to the Governor’s and Amici Freeman et al.’s argument above. I address each party’s position. A. The Attorney General [67] First, the Attorney General argues that finding P.L. 20

- 134 to be an u ltra vires act would violate the separation of powers. Resp’t Att ’ y Gen

. Br. at 9. He believes this court would be deciding “what the public policy shall be” if it finds P.L. 20

- 134 to be ultra v ires

. I d. at 10. How he arrives at this conclusion is un clear. The Governor’s position is that the Guam Legislature exceeded its authority by passing a law that clearly violated existing constitutional jurisprudence. Even the Attorney General admits t his cour t can declare laws unconstitutional. Id. at 8. Th ere are no policy implications at play here, only a question of interpreting the powers and authority of the Guam Legislature under the Organic Act

. [68] The Attorney General next argues that fin ding the pas sage of P.L. 20

- 134 to be an ultra
vires act wo uld be the “Judiciary interject[ing] itself into the Legislative process of passing a bill into law.” Id. at 12. Again, what this means is un clear. The Attorney General argues that such a findi ng would “deprive[] Senators from passing changes to an oth erwise ‘unconstitutional’ law before the bill becomes a law and is thereafter tested in the Courts.” Id. But the Governor is asking no such thing. She has initiated court proceedings to have P.L . 2 0

- 134 declared void overIn r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 33 of 41 thirty years after it was perma nently enjoined as unconstitutional . This court action is coming only after the Legislature passed P.L. 20

- 134. There would be no interference in the legislative process. To the extent a court w oul d look at the past, that analysis is only to determine w hat the state of the law was when the bill was passed. This type of analysis is not uncommon

. Cf. People v. Bosi , 2022 Guam 15 ¶ 18 (analyzing what Guam law required when a criminal defendant was ch arged, not the present statute). [69] The Attorney Gen eral goes on to ask, “how would the Senators know a bill is void because it’s ‘unconstitutional,’ before that bill is tested” in the courts? Id. at 14. Such a question reflects a misunderstanding of the role of courts. Courts are not the only actors who can judge whether a statute is constitutional. The Attorney General himself seems to acknowledge just this in his implied

- repeal argument, where he contends the Guam Legislature did not pass more restric tive bans on abortion because such attempts would b e “futile.” Id. at 2 6 . Members of the Guam Legislature swear an oath requiring them to “well and faithfully support the Constitution of the United States [and] the laws of the United States appli cable to Guam.” 2 GCA § 1110 (2005). Senators thus have a duty to consider for themselves whether legislation is constitutional and vote against legislation that would violate the Constitution. Likewise, the Governor should veto any legislation that doe s not co nform to the Constitution. The judiciary is not sp ecial because it alone determines what is and is not constitutional; rather , it is special because it is the final authority on what is and is not constitutional. See Brown v. Allen , 344 U.S. 443, 540 (19 53) (Jackson, J., concurring) (“ We are not final be cause we are infallible, but we are infallible only because we are final. ”). When there are disputes about what is and is not constitutional, the judiciary steps in to resolve the dispute. T he ju diciary is not the only branch responsible for ensuring act ions by the government are constitutional.In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 34 of 41
[7 0] Declaring a law to be ultra vires would not upend the traditional judicial and legislative
process es , as claimed by the Attorney General. See Resp ’t Att ’ y Gen

. Br. at 14

- 17. There would not be pre

-

judgmen t of laws if Guam courts declared acts of the Legislature to be ultra vires

. The Legislature would pass legislation, such legislation would be challen ged, and then the courts would say such legisl ation was void ab initio because it exceeded the authority of the Legislature to enact such a change. This is the process used regarding most agency actions at the federal level. See, e.g. , Chlorine Chemistry Council v. EPA , 206 F.3d 1286 , 1291 (D.C. Cir . 2000) ; Removal of the Maximum Contaminant Level Goal for Chloroform From the National Primary Drinking Water Regulations , 65 F ed. Reg. 34404 , 34405 (May 30, 2000). Agencies must en sure any prospective admini strative rules are consistent with the law and constitution, lest a court “set aside” the rule and force the agency to start from scratch. [71] Next, the Attorney General invokes the Speech and Debate Clause of the Organic Act to argue this court lacks the po wer to declare P.L. 20

- 134 ultra vires . T o quote a recent Supreme Court case, “Th[is] is a non

- sequi tur to end all non

- sequiturs.” Helix Energy Sols. Grp., Inc. v.
Hewitt , 598 U.S. 39 , 54 n.5 (2023) . The Speech and Debate Clause is irrelevant to the iss ue at hand and has no bearing on the relat ionship between the Legislature and the Judiciary. [72] Fi nally, the Attorney General asserts declaring P.L. 20

- 134 ultra vires would have “untenable policy implications.” Resp’t Att’y Gen. Br. at 22. He argues th e adoption of an ultra
vires doctrine wo uld “presuppose[] that a judicial determination on [a] bill exists before the Senators consider a bill.” Id. This alleged bad consequence is really no consequence at all because , as mentioned above, Senators have an independent duty to determine what is and is not constitutional, separate from the courts. In hi s implied

- repeal argument, the Attorney General maintains the Guam Legislature never passed stricter abortion laws because such attempts wouldIn r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 35 of 41
be “futile.” Id. at 26. How could attempts be futile unless the Senators were judging beforehand that passing p otential laws restricting abortion would be invalidated by the courts? All the ultra
vires doctrine would impose is that legislation is to be judged by the prevailing jurisprudence at the time a l aw was passed, not when it is challenged. [73] The Attorney General maintains this doctrine would forever deprive the people of Guam of a valid law; it “would destroy [a] public law forever.” Id. at 23

- 24. True, a finding that P.L.
20

- 134 is ultra vires would destroy that law forever, but such a find ing would no t prevent the Guam Legislature from passing an identical bill now. Contrary to the Attorney General’s arguments, id. at 24

- 25, an ultra vires doctrine allows for the correction of mistakes and cha nging jurisprudence. It simply places the burd en on the le gislature to re

- enact laws previously held to be unconstitutional. Maybe this is inefficient, but it is a far cry from “untenable.”
B. The Legislature [74] The Legislature’s first argument borrows the reasoning from an influential law review articl e, The W

rit

- of

- Erasure Fallacy

. Jonathan F. Mitchell, The Writ

- of

- Erasure Fallacy , 104 Va. L. Rev. 933 (2018) . In his article , Professor Jonathan Mitchell posits that “[j]udicial review
is a non

- enforcem ent prerogative, not a revisionary power over legis lation. . . . [E]verything in the statute remains available for future courts to enforce if they reject or overrule the previous
court ’ s decision. ” Id. at 983. I can set aside the merits of Professor Mi tchell’s position for this case, as it does not cha nge the outcome. By his article’s terms, the professor was only addressing the power of federal courts. E.g. , id. at 936 (“ The federal courts have no authority to erase a duly enacted law from the statut e books, and they have no power to veto or suspend a
statut e. ”). Professor Mitchell carves out a separate analysis for state courts. See id. at 953In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 36 of 41 (looking at Georgia where the state supreme court may declare laws void). He confines his analysis to the federal judiciary, and I see no reason to do any different ly. [75] The Legislature’s reliance on Ramsey v. Chaco , 549 F.2d 1335 (9th Cir. 1977) (per curiam), is also misplaced. There, the Ninth Circuit held that a law passed by the Guam Legislature was inconsistent with the Organic Act. Ramsey , 549 F.2d at 13 38. At the time the law was passed, all Guam laws were reported to the U.S. Congress , which had a year to nullify the local laws. Id. Because Congress had not acted, the Ninth Circuit held the l aw was approved, despite any potential conflict w ith the Or ganic Act. Id. The Legislature argues that this result could not have been reached if the correct analysis is to hold inorganic laws as void ab
initio

. Resp’t Legislature Br. at 10

- 11 (Mar. 31, 2023). [76] This is a misreading of Ramsey . First, the N inth Circuit never ruled the law at issue inorganic. Ramsey , 549 F.2d at 1338. Second, the whole basis for the decision was that it was Congress that approved the law. There is no question that Congress may amend the Organic Act and, by so doing, change what is and is not organic. Because it had this congressional review method at the time, the Organic Act effectively allowed for passive amendments. Put another way, at the time of Ramsey , local laws were inorganic only if Congress declared them t o be. Otherwise, Congress would deem local action to be a proper use of power delegated to the local government. This was no longer the case by the time of P.L. 20

- 134; congressional review of local la ws had ended. P.L. 20

- 134 could not be made organic like t he law in Ramsey , and so any comparison between the two situations is inapposite. [77] Finally, the Legislature’s argument that the lack of a “hammer clause” renders the language “[t]he legislat ive power of Guam shall extend to all rightful subjects o f legislation not inconsistent with the provisions of this Act and the laws of the United States applicable toIn r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 37 of 41 Guam” to be merely aspirational is also unconvincing. For one, the Legislature failed t o provide a specific source of authority for this proposi ti on. Second, applying such a requirement to the Organic Act is nonsensical. Take, for example, the provision of the Organic Act which states that this court shall hear and decide appeals “by a pan el of three justices.” 48 U.S.C.A. § 1421

- 4 (a)(5). This p rovision , too, has no “hammer clause” ; nowhere does the Organic Act provide any enforcement mechanism to ensure our decisions come from a panel of three justices. Yet, this provision in the Organi c Act is not a mere aspiration

— it is a command. If ever th e Legislature tried to mandate a panel of seven decide an appeal, such a mandate would fail. The action would violate the Organic Act and be void ab initio

.

III. Webster Did Not Open the Door t o P.L. 20
- 134 [78] During oral argument, Amicus Rohr sugges te d that P.L. 20

- 134 should not be considered void ab initio because the 20th Guam Legislature could have reasonably believed the law “had a shot” at passing constitutional muster. Oral Arg

. at 12 :04:50 (July 25, 2023) . This was due to the then

- recent U. S. Supreme Court decision in Webster v. Reproductive Health Services , 492 U.S. 490 (1989). His argument fails for three reasons. [ 79] First, it was unreasonable to conclude that Webster opened t he door to broader abortion restrictions. Webster concerne d challenges to the constitutionality of four provisions of a
Mi ssouri abortion law: ( 1 ) the preamble of the law, declaring the public polic y of the state to be that life begins at conception ; ( 2 ) a prohibition on the use of public facilities or employees to perform abortions; ( 3 ) a prohibition on public funding of abo rtion counseling; and ( 4 ) a requirement that physicians conduct viability tests prior to performing abortions . 492 U.S. at 504.In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 38 of 41
[8 0] In considering the preamble, the majority held the langu age there was not binding , and so there was no need to pass on its c onstitutionality. Id. at 507. If the preamble was used to restrict abortion, then federal courts could address its legality ; ho wever, that was not the case before the
Court. Id. at 506

- 07. [81 ] Moving to the use of public facilities, the Court reaffirmed its principle that “ the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid

ma y be necessary to secure life, liberty, or property interes ts of which the government itself may not deprive the individual.” Id. at 507 (quoting DeShaney v. Winnebago Cnty. Dep ’ t of Soc

. Serv s. , 489 U.S. 189, 196 (1989 )). Thus, the 14th Amendment and Ro e v. Wade were not implicated by th is portion of the state law at issue

. Id. at 509

- 10. [82] The plaintiffs argued the ban on public funding of abortion counseling did not apply to them, eliminating the case or controversy before the Court. Id. at 512. The Court was unanimous in directing “ the Court of Appeal s to vacate the judgment of the Distr ict Court with instructions to dismiss the relevant part of the complaint. ” Id. at 512

- 13. [83] The final provision

— that physicians conduct viability tests f or fetuses at least 20 weeks old

— proved the most controvers ial. Under Roe , a state could broadly re gulate abortion only after the fetus was viable

. Id. at 516 (citing Roe , 410 U.S. at 165). In Webster , the Court allowed a regulation requiring viability tests, knowing “ the tests will undoubtedly show in many

cas es that the fetus is not viable .” Id. at 519. This meant the regulation increased the expense and effort of obtaining an abortion before viability, prior to the point at which the state could bro adly regulate abortion. Id. A plurality of the Court reas oned this result was acceptable since the regulation’s intent was to determine whether the fetus was viable

— the point where the state may protect the fetus’ s interests. Id. at 519

- 20. It was only this part of Roe , its “rigid [ ity ] ” in theIn r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 39 of 41
form of the trim ester framework, that was changed by the plurality. Id. at 518

- 19, 521. Otherwise, the holding of Roe was left “undisturbed.” Id. at 521. [84] In Part III of Webster , a plurality of the Court noted the case before it did not require overturning Roe si nce Roe dealt with a complete abortion ban co mpared to the narrow regulations at issue in that case. Id. In a concurrence, Justice Scalia asserted the Court effectively overruled Roe in its viabi lity

- testing section and should have explicitly done so. I d. at 532 (Scalia, J., concurring). Combining Justice Scalia’s concurrence with Part III of the Opinion is the best place to argue the Court was announcing the end of Roe . Yet, that is not the wh ole

s tory. The crucial fifth vote for holding the viabilit y testing unconstitutional was Justice O’Connor. In her concurrence, she argued Webster did not implicate Roe , and any analysis of
Roe was unnecessary. Id. at 525

- 26 (O’Connor, J., concurring). Thus, only one justice of the Court (Scalia) stated explici tly that Roe should be overturned, three justices (Chief Justice Rehnquist and Justices White and Kennedy) felt only a small narrowing was needed, one justice (O’Connor) felt Roe was inapplicable, and f our justices, though believing Roe was implicated,
arg ued for Roe ’s continuing application. There are thus no grounds to argue that Webster substantially changed the law on abortion generally. [8 5] Second, it is beyond apparent that the 20th Guam Le gislature was put on notice of the legality of P.L. 20

- 134. Per the District Court of Guam, Senator Elizabeth Arriola’s own legal counsel “ had advised her that the Bill as introduced would probably be struck down because

‘ [j]udges are bound by Supreme Cou rt decisi ons because [the decisions are] binding precedent, and that more than likely a judge would probably find that this bill was not in keeping with RoeIn r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 40 of 41
v. Wade

. ’” 10 Guam Soc ’y of Obstetricians , 776 F. Supp. at 1425 (alterations in original) (quoting
D ep . of A tt ’ y June Mair at 23 ( May 10, 1990 ) )

. The Attorney General of Guam at the time likewise agreed the law would violate Roe : The Attorney General gave as the legal opinion of her office that both bills were “violative of a woman ’ s constitutional rig ht of pr ivacy as enunciated by the United States Supreme Co urt in Roe v. Wade

. ” The Attorney General noted that a “state cannot interfere with a woman ’ s right of personal privacy to decide to have an abortion whatever the cause of her pregnancy. The stat e may regulate such a decision, but it cannot deprive a wom an of such a choice.” Because both bills effectively proscribed abortion, the Attorney General gave as her legal opinion that “both bills would be held unconstitutional.”
Id. (quoting Att ’ y Gen .’ s Op . at 1

- 4). Unquestionably, there existed a right to an abortion under the U.S. Constitution in the 1990s , and P.L. 20

- 134 infringed upon that right. [86] Third and finally, there is no need to speculate on what the constitutional status of P.L.
20

- 1 34 was because the answer was unequivocally provided by the Ninth Circuit. See Guam
Soc ’y of Obstetricians , 962 F.2d 1366 . There may be a future instance where this court is faced with the question of whether to declare a statute void ab initio because i t viol ated prevailing constitutional law at the time of its passage, though it went unchallenged. That is not this case

. Here, P.L. 20

- 134 was challenged , and that challenge was upheld . The U.S. Supre me Court declined to review the decision of the Ninth Circu it. Ada v. Guam Soc ’y of Obstetricians & Gynecologis ts , 506 U.S. 1011 (1992) (denying certiorari) . Thus, it does not matter if one assumes the Guam Legislature was reasonable in believing it “had a shot” when it passed P.L.
20

- 134; the federal judi ciary definitively determined the law violated the U.S. Con stitution. It is an inarguable fact , then, that P.L. 20

- 134 violated the Constitution when it was passed.

10 Senator Arriola was P.L. 20

- 134’s primary sponsor.In r e Req uest o f Lou r des A. Leon Guerrero, I Maga’hågan Guåhan , Relative to the Validity & Enforceability of Pub. L. No. 20

- 134 , 2023 Guam 11 , Opinion Page 41 of 41
IV. C onclusion [87] The Organic Act, as it existed in 1990, clearly limited the power o f the Guam Legislature to only pass legislation consistent with the U.S. Constitution. When it was passed, P.L. 20

- 134 violated the established law on the 14th Amendment; the case of Webst er v. Reproductive Health
Services did not change that fact. Thus, the Legislature acted ultra vires in passing P.L. 20

- 134 , which makes the law void ab initio ; it cannot be revived by subsequent changes in the law. [88] Holding P.L. 20

- 134 void is still co nsistent with the idea of judicial fallibility. Judges are hum ans , and mistakes are inevitable. Cases and doctrines can still be overturned. But a crucial principle in our system of law is finality. See In re Registration of Title to Est. No. 2959 , 202 3 Guam 6 ¶ 29. The validity of a law should not bounce back an d forth simply due to changes in judicial precedent. Rathe r, once a decision has been made and any appeals settled, that case is decided. It is not the function of the judiciary to revive pol icies from thirty years ago. Should the people wish to change abortion policy in Guam, they ought to go to the Legislatur e, not to the
courts. [89] Because I would find P.L. 20

- 134 was void ab initio , I concur in the judgment.

/s/ F. PHILIP CARBULLIDO Associate Justice