(a) Abortion means the termination of a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus. (b) An abortion may be performed:
(1) by a physician licensed to practice medicine this Territory or by a physician practicing medicine in the employ of the government of the United States; (2) in the physician’s adequately equipped medical clinic or in a hospital approved or operated by the United States or this Territory; and (3) (A) within 13 weeks after the commencement of the pregnancy; or (B) within 26 weeks after the commencement of the pregnancy if the physician has reasonably determined using all available means: (i) that the child would be born with a grave physical or mental defect; or (ii) that the pregnancy resulted from rape or incest; or (C) at any time after the commencement of pregnancy if the physician reasonably determines using all available means that there is a substantial risk that continuance of the pregnancy would endanger the life of the mother or would gravely impair the physical or mental health of the mother. SOURCE: Enacted in 1978 as part of the original Criminal & Correctional Code. 2022 NOTE: Past publications of the GCA included the following annotations: COMMENT: The Law Revision Commission made no recommendation as to the regulation of abortion. This section was added by the Legislature, which committed a serious error in its adoption (since rectified). Initially (1978), no sanctions were provided for the performing of illegal abortions. However, this has been changed in later sections of this Chapter. COURT DECISIONS: Sections 31.20, 31.21, 31.22 and 31.33, as reenacted by P.L. 20-134, were declared null and void as contrary to the U.S. Constitution. As a result, the original sections of law were reinstated. Guam Society of Obstetricians & Gynecologists, et al. v. Ada, Governor of Guam, et al., No. 90-16706, C.A.9 (1992), 962 F.2d 1366.
Past publications also included an undated Compiler’s Note that set forth the following statutory provisions added by P.L. 20-134 (Mar. 19, 1990): § 31.20. Abortion: Defined. Abortion means the purposeful termination of a human pregnancy after implantation of a fertilized ovum by any person including the pregnant woman herself with an intention other than to produce a live birth or to remove a dead unborn fetus. Abortion does not mean the medical intervention in (i) an ectopic pregnancy, or (ii) in a pregnancy at any time after the commencement of pregnancy if two (2) physicians who practice independently of each other reasonably determine using all available means that there is a substantial risk that continuance of the pregnancy would endanger the life of the mother or would gravely impair the health of the mother, any such termination of pregnancy to be subsequently reviewed by a peer review committee designated by the Guam Medical Licensure Board, and in either case such an operation is performed by a physician licensed to practice medicine in Guam or by a physician practicing medicine in the employ of the government of the United States, in an adequately equipped medical clinic or in a hospital approved or operated by the government of the United States or of Guam. § 31.21. Providing or Administering Drug or Employing Means to Cause an Abortion. Every 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 instrument or other means whatever, with intent thereby to cause an abortion of such woman as defined in § 31.20 of this Title is guilty of a third degree felony. In addition, if such person is a licensed physician, the Guam Medical Licensure Board shall take appropriate disciplinary action. § 31.22. Soliciting and Taking Drug or Submitting to an Attempt to Cause an Abortion. Every woman who solicits of any person any medicine, drug, or substance whatever, and takes the same, or who submits to any operation, or to the use of any means whatever with intent thereby to cause an abortion as defined in § 31.20 of this Title is guilty of a misdemeanor. § 31.23. Soliciting to Submit to Operation, Etc., to Cause an Abortion. Every person who solicits any woman to submit to any operation, or to the use of any means whatever, to cause an abortion as defined in § 31.20 of this Title is guilty of a misdemeanor. In Guam Society of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366 (9th Cir 1992), cert. denied, 506 U.S. 1011 (1992), the Ninth Circuit Court invalidated these provisions, relying on Roe v. Wade, 410 U.S. 113 (1972), and also permanently enjoined enforcement of P.L. 20-134. Roe v. Wade was overturned by Dobbs v. Jackson Women’s Health Organization, 597 U.S. -- (2022), and in response to a request from members of the 36th Guam Legislature, the Attorney General of Guam issued Opinion
Memorandum LEG-22-0324, finding that the 20th Guam Legislature had exceeded its Organic Act authority in enacting P.L. 20-134, and that P.L. 20-134 was void ab initio. See Att’y. Gen. Op. Mem LEG-22-034 (July 6, 2022). Based on this guidance, the provisions of P.L. 20-134 will not be codified in the GCA.
§ 31.21 Illegal Abortions Punished. Any person performing an abortion in circumstances other than permitted by § 31.20 shall be guilty of a third degree felony. SOURCE: Added by P.L. 14-122 (4/19/78). COMMENT: This Section was added after it was discovered that the Legislature, while regulating abortions, had neglected to provide any penalty for performing abortions in situations other than those permitted by law.
§ 31.22 Refusal to Participate in Abortion. (a) (1) No employer or other person shall require a physician, a registered nurse, a licensed vocational nurse, or any person employed or with staff privileges at a hospital, facility or clinic to directly participate in the induction or performance of an abortion, if such employee or other person has filed a written statement with the employer or the hospital, facility or clinic indicating a moral, ethical or religious basis for refusal to participate in the abortion. (2) No such employee or other person with staff privileges in a hospital, facility, or clinic shall be subject to any penalty or discipline by reason of his refusal to participate in an abortion. No such employee of a hospital, facility or clinic which does not permit the performance of abortions, or person with staff privileges therein, shall be subject to any penalty or discipline on account of such person’s participation in the performance of an abortion in other than such hospital, facility or clinic. (3) No employer shall refuse to employ any person because of such person’s refusal for moral, ethical or religious reasons to participate in an abortion, unless such person would be assigned in the normal course of business of any hospital, facility or clinic to work in those parts of the hospital, facility or clinic where abortion patients are cared for. No provision of this Chapter prohibits any hospital,
facility or clinic which permits the performance of abortions from inquiring whether the employee or prospective employee would advance a moral, ethical or religious basis for refusal to participate in an abortion before hiring or assigning such a person to that part of a hospital, facility or clinic where abortion patients are cared for. (4) The refusal of a physician, nurse, or any other person to participate or aid in the induction or performance of an abortion pursuant to this subsection shall not form the basis of any claim for damages. (b) No hospital, facility, or clinic shall refuse staff privileges to a physician because of such physician’s refusal to participate in the performance of an abortion for moral, ethical, or religious reasons. (c) (1) Nothing in this Chapter shall require a non-profit hospital or other facility or clinic which is operated by a religious corporation or other religious organization or any administrative officer, employee, agent, or member of the governing board thereof, to perform or permit the performance of an abortion in such facility or clinic or to provide abortion services. No such non-profit facility or clinic organized or operated by a religious corporation or other religious organization, nor its administrative officers, employees, agents, or members of its governing board shall be liable, individually or collectively, for failure or refusal to participate in any such act. (2) The failure or refusal of any such corporation, unincorporated association or individual person to perform or to permit the performance of such medical procedures shall not be the basis for any disciplinary or other recriminatory action against such corporations, unincorporated associations, or individuals. Any such facility or clinic which does not permit the performance of abortions on its premises shall post notice of such proscription in an area of such facility or clinic which is open to patients and prospective admittees.
(d) (1) This section shall not apply to medical emergency situations and spontaneous abortions. (2) Any violation of this section is a misdemeanor. SOURCE: Added by P.L. 14-122 (4/19/78). 2018 NOTE: Subsection/subitem designations altered/added in subsections (a) and (c) pursuant to authority by 1 GCA § 1606.