November 3, 2012,
RE: QUESTIONS REGARDING SECTION 4 OF BILL 52
Dear Friends of the Unborn:
On Thursday Governor Calvo signed Bill 52 into law. (The public law number is still pending; so, we just call it the "Law" here). This, of course, was an important step toward ensuring that women are fully informed before they decide whether to undergo an abortion on Guam. However, this goal will not be achieved until the Law actually takes effect. And, unfortunately, there is some uncertainty as to how, and under what circumstances, the Law will take effect.
To understand why this is and why we need now more than ever to continue to be vigilant, please read the following.
In the week prior to the Legislature's vote on Bill 52, certain senators (the "Senators") asked Senator Rodriguez to amend Section 4 of Bill 52. Section 4 addresses how and when Bill 52 will become effective after it is enacted into law. In particular, the Senators wanted to add language to Section 4 so that it would state that the "printed materials" and the "checklist certification" (i.e., the informational materials that Bill 52 requires the abortion provider to give to a woman contemplating an abortion) would be subject to the rule making process set forth at Title 5, Chapter 9, Article 3 of the Guam Code Annotated.
The Senators told Senator Rodriguez that the reason that they sought this amendment was to ensure that both the printed materials and the checklist certification were prepared, and that abortion providers received proper notice, before the law went into effect.
Senator Rodriguez was of the view that neither the printed materials nor the checklist certification were rules and, thus, were not subject to the rule making process; and that any reference to the rule making process in Section 4 would, at best, be superfluous and, at worst, cause confusion. Accordingly, Senator Rodriguez responded to the Senators' request with several alternative amendments that he thought would address the underlying concerns raised by them but which avoided the possible confusion caused by a reference to the rule making process.
The Senators rejected these alternatives. After further discussions with the Senators, Senator Rodriguez finally agreed to the language that now appears in Section 4 of the Law. Senator Rodriguez did so even though he did not like this language because it associated, albeit vaguely, the printed materials and the checklist certification with the rule making process. This was exactly the sort of uncertain language that Senator Rodriguez wanted to avoid. Nonetheless, in order to preserve the fragile coalition of senators who agreed to vote for Bill 52, Senator Rodriguez felt compelled to accept this amendment to Section 4. As a result, this is how Section 4 of the Law appears:
Section 4. Effective Date. This Act shall take effect sixty (60) days after the 'printed materials' described in proposed § 3218.l(c) and the 'checklist certification' described in proposed § 3218.l(c)(5) have been approved by the Department and, pursuant to its rule making process set forth in Title 5, Chapter 9, Article 3 of the Guam Code Annotated.
We are not entirely sure what the Senators' intention was when they sought to amend Section 4. We presume that they just wanted to make clear that under Guam law if the printed materials and the checklist certification are deemed rules or regulations then they will have to undergo the rule making process.
On the other hand, perhaps they intended to use this language to require the printed materials and the checklist certification to go before the Legislature AFTER THE ELECTION where they could then safely vote against their approval and thereby stop the implementation of the Law.
Because we do not know which senators in particular comprised the group that we refer to here as "the Senators" and because many who subscribe to our newsletter look to Esperansa for guidance on who to vote for, we are asking two questions of all of the senators who voted for Bill 52.
These questions are designed to determine whether the senator authentically supports Bill 52 and is thus willing to resolve any confusion caused by Section 4's vague language in a way that will give full effect to Bill 52 and its stated purpose, or whether the senator seeks to use any confusion caused by Section 4 as a means to prevent the implementation of the Law AFTER THE ELECTION.
The following questions are being sent to Senators Respicio, Guthertz, Muña Barnes, Palacios, Cruz, Rodriguez, Blas, (Tony) Ada, Silva Taijeron, Mabini and Dueñas.
- If the printed materials and the checklist certification are approved by DPHSS but nevertheless are required to undergo the rule making process set forth at Title 5, Chapter 9, Article 3 of the Guam Code Annotated, will you vote to approve the printed materials and the checklist certification in the form as approved by DPHSS (so long as they do not violate Guam or federal law)?
- If the Office of the Attorney General opines, or a court of competent jurisdiction finds, that neither the printed materials nor the checklist certification constitutes a rule or regulation AND if presented with a bill that amends the Law so as to delete the following language from Section 4: "and, pursuant to its rule making process set forth in Title 5, Chapter 9, Article 3 of the Guam Code Annotated," will you take all reasonable steps available to you to pass such a bill in a timely manner without revision or amendment to such bill?
If a senator answers in the affirmative to both, then we will know that he or she authentically supports Bill 52. If a senator answers in the negative to either question, then we will know that he or she - in spite of his or her vote in favor of Bill 52 - actually opposes Bill 52 and intends to use Section 4 to block its implementation.
To be clear, our intent in raising this issue and asking these questions is not to cast aspersion on any particular member of the 31st Guam Legislature. For that reason we are sending these questions to all senators who voted in favor of Bill 52, and not just to a subset that we may harbor concerns about. We just need to better understand the intentions of each senator so that we can provide you well-informed and well-supported guidance in respect to who to vote for on November 6.
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