The abortion debate begins

Bureau of Women’s Affairs director Jayne Flores over the weekend released a statement condemning Bill No. 291, introduced by Sen. Telena Nelson. This is the Guam Heartbeat Act of 2022, which would – in short – will allow private citizens to sue an abortion provider for aborting, or aiding and abetting the abortion of a fetus medically-determined to have a heartbeat. An exception is made for the protection of the health and life of the mother. According to the legislation, no government official may bring an action against an abortion provider.

Today, the bill’s drafter, attorney Peter Sgro, Jr., responded to Ms. Flores’s statement.

We provide both the statement and the letter in their entirety:

Ms. Flores’s statement:

“We are extremely disappointed with the introduction of Bill 291-36, ‘The Guam Heartbeat Act of 2022.’ It is a pro-VOTE bill, not a pro-life bill. This type of legislation always rears its ugly, divisive head during a gubernatorial election year, in an attempt to divide our community.

“It is also moot legislation because we do not currently have any doctors on Guam who perform abortions, or any doctors on Guam that provide medically induced abortions, that BWA is aware of.

“Women have the right to confidential, affordable, and unrestricted access to the full range of reproductive health care options available in 2022, including the option to terminate a pregnancy. A woman has the right to decide what is best for her own health, and that includes the right to control what happens within her own body. It is a decision that she should make, in consultation with whoever SHE trusts and deems important to make it with her. It is not something that the government, or anyone else, should decide.

“If we really want to be pro-life, we as a community need to worry about the children on THIS side of the womb – children like the 5-year-old boy who died recently because of neglect.

“Being ‘pro-life’ is addressing the nearly 2,000 children in our foster care system. The sponsors of ‘The Guam Heartbeat Act’ should focus their ‘pro-life’ efforts on the following:

• Improving, expanding, or establishing social programs to make raising children easier and more affordable;
• Bringing Guam families out of poverty;
• Ensuring that contraception is accessible and affordable on island. One of the main ways to prevent abortion is to provide accessible birth control options in a community.
• Addressing the underlying causes of our drug and alcohol addiction problems and the crimes they create. We have high rates of sexual assault and domestic violence related to these addictions.

“April is Sexual Assault Awareness Month. Ironically, ‘The Guam Heartbeat Act’ makes no exception for victims of rape or incest. It negates every single piece of legislation this legislature has passed that purports to be ‘in support of sexual assault victims.’ The sponsors are in effect saying to victims of sexual assault, ‘We don’t care about what happened to you.

“BWA inquires of the five sponsors of ‘The Guam Heartbeat Act of 2022’:

How do you think this bill is going to work? Private individuals are not trained in enforcement the way that state actors are. When you put enforcement authority in the hands of the public, you are giving private rights of action to individuals who are not accountable for meeting any enforcement standards, and essentially guaranteeing abuse of the process.

“With regard to the Texas law upon which this bill is based, it has been declared unconstitutional in district court because of the enforcement mechanism – having private individuals sue others without having suffered harm themselves. The sponsors of this legislation criticize alleged violations of constitutional rights during the pandemic but fully embrace such violations when it comes to a woman’s right to choose AND appropriate access to courts.

“There is also the issue of HIPAA – the Health Insurance Portability and Accountability Act. Abortion is a medical procedure, and disclosing it is a HIPAA violation. Yet according to the bill, a physician performing an abortion to preserve the health of the pregnant woman must ‘execute a written document that specifies the medical condition of the pregnant woman that the abortion is asserted to address…’ Will the physician have to produce this document to someone who files a civil suit against the physician? That is a HIPAA violation, as is the reporting requirement of the bill.

“In our view, Bill 291 is a ridiculous piece of legislation, simply a ploy to get votes, and even more simply: unacceptable for our community of Guam or any other community.”

Mr. Sgro’s response:

Dear Jayne:

I am writing this letter in my personal capacity as a resident of Guam and under no circumstances should any part of this message be expressly or impliedly attributed to any senator. And that includes the sponsor and co-sponsors of Bill 291-36 titled “The Guam Heartbeat Act of 2022 (hereinafter referred to as the “Heartbeat Act”).

I first want to begin by saying that the same afternoon the Heartbeat Act was introduced, I had a wonderful conversation over coffee with one of the Attorneys for the American Civil Liberties Union (“ACLU”). As you are aware, the ACLU is the plaintiff in an ongoing District Court of Guam case relative to an existing law that prohibits telemedicine consults which fosters medication abortions on Guam. It is not necessary to go into the legal arguments of that case since it involves a totally different set of facts and laws that would arise under any case involving the Heartbeat Act.

However, I feel it is important to state that during this particular conversation with one that represents probably the largest non-profit organizations nationally that is pro-choice, the conversation was friendly, respectful and void of any arguments or misrepresentations. The conversation was one that included mutual respect despite opposing views. At no time in the conversation was anyone attacked personally. At no time during the conversation was politics even murmured or suggested. It was indeed a very decent human response by two people with opposite views related to the issue of abortion. And at least for me, that is the same way I will conduct myself from this point forward if personally faced with opposing views.

Unfortunately, your April 8, 2022 press release you issued as Director of the Bureau of Woman’s Affairs (“BWA”) was riddled with personal attacks, statements that are not factually based or legally based and even contrary to the enabling legislation that created the Bureau of Woman’s Affairs.

After reading your press release you issued in your official capacity as Director of the BWA, I reviewed Public Law No. 21-25 which was signed into law on May 17, 1991 by the late acting governor of Guam Frank F. Blas. This law established the BWA within the Executive Branch of the government of Guam. The law is cited as “The Bureau of Women’s Affairs Act of 1991.” It is important to note that I also read the Committee Report that was issued prior to this act becoming law when it was still before the legislature and referenced as Bill No 116 (COR). These facts will become more relevant later in this message when I reference four bullet points contained in your release which suggest senators instead focus pro-life efforts on specific matters.

I of course noted that you begin your press release by implying that..”This type of legislation rears its ugly, divisive head during a gubernatorial election year…”. That is absolutely not true. At the press conference where the introduction of the Heartbeat Act was announced, one reporter asked a question about the timing of the introduction of the Heartbeat Act. I personally responded to that question essentially talking about recent decisions of the United States Supreme Court causing a rush by states to introduce their own heartbeat acts similar to the Texas heartbeat act.

I have to believe that as the Director of the BWA, you are very much aware of the reason states are rushing to introduce pro-life legislation. This fact is national news practically on a daily basis  But in the event you are not aware, I invite you to read a recent New York Times article that discusses this fact by clicking on to the link below.

https://www.nytimes.com/2019/05/15/us/abortion-laws-2019.amp.html?referringSource=articleShare&referringSource=articleShare

I also want to add, since I know first hand the Heartbeat Act was not some politically motivated sudden Bill, that I first started drafting this Act about six months ago. It actually was initially drafted as a referendum but for various reasons the costs and conditions related to referendums make it virtually impossible for voters to create laws. Existing laws such as the Santos Amendment make it virtually impossible for any voter referendum to succeed. It was much later that I was introduced to Senator Nelson that had the courage to introduce the Heartbeat Act. So it is truly impossible for you to reach the conclusion you did since of course you were not aware of these facts.

I want to also point out that your reference to “nearly 2,000 children in our foster care system” was not only taken out of context, but is also not true. The truth is there are approximately 550 children in the foster care system not 2,000. There is documented every year over 2,000 reports of child abuse but it is out of that number where there are approximately 550 children in our foster care system. I feel at this time it’s important to first raise the relevance of the enabling act of the BWA not only because of the incorrect number of children you reference, but because of your clever reference to “April is Sexual Assault Awareness Month.”

I invite you to consider your fiduciary duties as a public official in the capacity of Director of the BWA. Then consider the fact that every year there are over 2,000 reports of child abuse on Guam and if you look historically at these reports, the highest number of child abuse cases reported occurred during your tenure as the Director of the BWA. And as stated in your own enabling act, the BWA is a bureau within the Executive Branch of the government of Guam. Yet your release specifically points the fingers at senators as some how being responsible for our high rate of child abuse. Another fact that must be considered if we assume you in fact are concerned about the horrors of child abuse on our island, you have had access to over $1 Billion in discretionary funds not requiring approval of any senator or legislature you seek to blame. How much time and / or money has the BWA spent to mitigate child abuse on our island?

This morning on a radio talk show, a pro-choice attorney was speaking about the Heartbeat Act. She essentially said that the Heartbeat Act creates confusion about whether someone who speaks out in favor of abortion can be charged with a crime. I hope you do not agree with this attorney’s suggestion since:

1. The Heartbeat Act contains sections that specifically protect Freedom of Speech as guaranteed by the US Constitution and the Organic Act;

2. There is absolutely no section, provision or even a sentence in the Heartbeat Act that authorizes any criminal action. In fact, even the Attorney General of Guam is prohibited from bringing any criminal action should there be a violation of the Act and

3. The Heartbeat Act prohibits any actions against a woman that has had an abortion.

I found particularly interesting the second paragraph on page 2 of your release. You wrote…”Private individuals are not trained in enforcement the way that state actors are.” I am sure you are making reference to the fact that the Heartbeat Act only gives private citizens the authority to initiate a civil action against a physician or any person that performs or induces an abortion. And that the Act specifically excludes the government of Guam, any government official and even employees of the government of Guam from initiating any actions.

In reading this particular sentence, it tells me that you are aware of the reason that twice the United States Supreme Court did not strike down in whole or in part the Texas Heartbeat Act. And that you are also aware that just about three weeks ago, the Supreme Court of Texas also did not strike down the Texas Heartbeat Act. However, I am surprised and not surprised that you would include such a sentence:

1. I am surprised that you doubt the ability of our people to make decisions relative to filing private civil actions in the Superior Court of Guam or the District Court of Guam and

2. I am not surprised that you want abortion issues resolved by government rather than giving the power to our people or private citizens to resolve issues of abortion. Since I am sure you know that as long as you can keep government action in tact and prevent action by the people, you can continue to make constitutional arguments. That is not the case however when the power is given to the people where it rightfully belongs.

With respect to your paragraph 3 on page 2, the Heartbeat Act does not violate HIPPA in any manner whatsoever. There are already laws in place that require for instance public disclosure of matters such as the number of abortions performed. If in fact the Heartbeat Act violates HIPPA, there would have already been countless lawsuits alleging violations of HIPPA based on existing laws requiring public disclosure of information relative to abortions.

I noticed that no where in your release do you reference anything about the right of the unborn not to have its heartbeat end. I hope we can agree to the fact that abortion stops a baby’s heartbeat. Roe vs Wade was decided 50 years ago. Obviously since then much has changed in all our daily lives. 50 years ago there was one or two tv channels here on Guam, there was no such thing as a cell phone or smart phone, there was no such thing as Google, Yahoo, Facebook, Instagram or the thousands of apps we see today, every day. And today, it is indisputable medically, factually and based on elementary principles of science, that the heartbeat of a child can be detected in the sixth or seventh week of a pregnancy.

Every single state in the nation uses as a guideline a code that provides various definitions of death. And consistent in every one of these codes is that death occurs when a heartbeat stops. So the Heartbeat Act logically fits within this nationally accepted standard since the Act recognizes life once a heartbeat is detected. I can appreciate your statements that focus on woman’s rights. But it is impossible not to not include that unborn child in that discussion even today. That unborn child has a different DNA than it’s mother. That unborn child has finger prints different from not only its mother but everyone else on Earth. In other words, that unborn child is a distinct and separate human being that must have the right to keep its heartbeat beating.

I want to close with one more point. I feel it is important to recognize that there is a section of the Guam Code Annotated relative to an unborn child. I invite you to see 9 Guam Code Annotated Section 1104. “A child conceived, but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in event of its subsequent birth. In conjunction with 19 Guam Code Annotated Section 9108, the court may award custody of a child.” And in fact, there have been Superior Court of Guam cases where custody of an unborn child has been ordered.

Thank you Jane. I hope from this point forward, despite our differing views, we can have peaceful and respectable discussions about the Heartbeat Act. It is my hope that we can at least agree that abortion does in fact stop the beating heart of a child.

Respectfully,

Peter

Peter R. Sgro, Jr., BBA, JD
Attorney-at-Law
Member of the Guam Bar Association.