Letter to Senator Cruz - 12/23/11

Tim Rohr
PO Box 9001
Agat, GU 96928
timrohr.guam@gmail.com

December 23, 2011

VIA ELECTRONIC MAIL

Vice Speaker Benjamin J.F. Cruz
Suite 107
155 Hesler St. 
Hagåtña, Guam  96910 

Ph.: (671) 477-2520/1
 Fax: (671) 477-2522

senator@senatorbjcruz.com


    RE: THE BIG LIE

Dear Vice-Speaker Cruz:

I would have let this go long ago, but your continued insistence on THE BIG LIE, most recently on last night’s news, forces me to respond every time you tell THE BIG LIE since it impugns and belittles the intelligence and efforts of those who poured out their hearts in your presence in support of Bill 323 at the public hearing on the night of November 8.

As per the legal opinion from Attorney Shane Intihar sent on 12/21/11 via electronic mail to Speaker Won-Pat and copied to all the members of the Legislature, your interpretation of 19 GCA, Sec. 1111 - that parental consent for abortion is “already in the law” (PNC 12/22/11) - is DEAD WRONG and purposely misleading.

You stated the same on K57 (11/9), PNC (12/20), and confirmed it again on K57 (12/21) as well as the PNC news report of 12/22 already mentioned.

By your own admission (K57 12/21) your legal opinion is based on the opinion of a news reporter who you said called you after the public hearing on 11/8:

“...the truth of the matter is that it was after the hearing the reporter called me and asked me about that provision in the law. It wasn’t something that I was aware of prior. She had called me and I apologized to her, I told her that I didn’t want to be accused of intellectual property theft. She had done the research and she was the one that called me and I said yeah, that’s probably right....”

Senator Cruz, have you no shame? You are a sitting senator, an attorney, a former Chief Justice of the Supreme Court of Guam, and a family court judge who presided over years of cases involving minors, and now you tell us that you had no prior knowledge of a significant provision in Guam law relative to the medical care of minors in regards to abortion, and that you had just learned about it from a newspaper reporter!!

The theory of THE BIG LIE is that if you tell it often enough people will believe it. We don’t believe it and we expect a response from you forthwith.






Tim Rohr
The Esperansa Project
Editor, GuamOpenGovernment.org


*****

Copy of legal opinion by Attorney Shane Intihar sent to Speaker Won-Pat and copied to all the members of the Legislature on 12/21/11.

*****


Shane A. Intihar
259 Martyr Street, 100
Hagåtña, Guam 96910
shaneintihar@yahoo.com

December 20, 2011

VIA ELECTRONIC MAIL

Speaker Judith T. Won Pat, Ed.D.
I Mina'trentai Unu Na Liheslaturan Guåhan
155 Hesler Place
Hagåtña, Guam 96910
speaker@judiwonpat.com

    RE: MISINTERPRETATION OF PL 22-84

Dear Speaker Won Pat:

A few weeks ago, Senator B.J. Cruz appeared (via telephone) as a guest on a radio talk show and stated that Public Law (“PL”) 22-84 “explicitly prohibits a minor from consenting to anything that induces abortion.”  The implication of this statement is that Bill 323-31 is superfluous and its passage unnecessary.  This statement also suggests that Senator Rodriguez failed to engage in basic due diligence before introducing the bill and, thus, casts Senator Rodriguez in a dim light.  Because I support Bill 323-31 and Senator Rodriguez’s pro-life leadership, I am compelled to inform you that Senator Cruz’s statement in regard to the effect of Public Law 22-84 is incorrect.   

In fact, PL 22-84 in no ways deals with abortion.  Public Law 22-84 merely amends 19 G.C.A. § 1111 to replace the phrase “venereal disease” with the phrase “sexually transmitted disease, HIV virus, or AIDS” and adds a new subsection that defines “Sexually Transmitted Disease.”  See Bill No. 704(LS), 22nd Guam Legislature. 

Perhaps Senator Cruz meant that 19 G.C.A. § 1111 – the section where PL 22-84 is codified, and not PL 22-84 on its own – “explicitly prohibits a minor from consenting to anything that induces abortion.”  Indeed, during his appearance on the radio talk show Senator Cruz cited in support of his assertion articles in the Marianas Variety and Pacific Daily News which claimed that Chapter 1 of Title 19 of the Guam Code precludes minors from obtaining an abortion without parental consent.  To the extent that Senator Cruz agrees with the statutory interpretation asserted in these articles, (or is, in fact, the source thereof), he is wrong again. 

Under Guam law, a minor may enter into any contract (except three types of contracts enumerated in 19 G.C.A. § 1106 which are not applicable here) subject to the right of the minor to disaffirm the contract.  19 G.C.A. § 1107. 

On Guam, as in most jurisdictions, a minor may disaffirm (that is, nullify) contracts that he or she has entered into and refuse to pay for or restore goods or services which the minor received pursuant to the contract. 19 G.C.A. § 1108. 

This means that contracts with a minor are usually voidable by the minor, but are not per se void.  Thus, if a minor contracts to buy a car but later fails to make all of the payments, the seller will not be able to enforce the contract and compel the minor to make the remaining payments.  This is a centuries old common law concept. 

Under Guam law there are three exceptions to the right of a minor to disaffirm.  These exceptions are set forth respectively in Sections 1109, 1110 and 1111.   One in particular states that a minor who seeks certain kinds of "medical care and services" from a hospital, clinic or physician may not later disaffirm the contract with the hospital, clinic physician under which he or she received the "medical care and services."  19 G.C.A. §§ 1108 and 1111.  

The policy behind this exception is to avoid discouraging hospitals and clinics from providing medical treatment to minors who would otherwise represent a significant non-payment risk. 

With respect to abortion, Section 1111 makes clear that the "medical care and services" exception does not include abortion.  See 19 G.C.A. § 1111(a)(3).  Thus, in the same way that a minor can disaffirm most contracts that he or she enters into, a minor may disaffirm a contract that she enters into with an abortionist to obtain an abortion.  Of course, an abortionist can (and likely does) demand payment at the time he renders services.  So, the right of a minor to disaffirm is unlikely to put the abortionist at any financial risk. 

More to the point, neither Section 1111, nor Chapter 1 of Title 19 taken as a whole, requires a minor to obtain consent from a parent (or anyone else) prior to obtaining an abortion.  Indeed, far from prohibiting minors from obtaining an abortion, Chapter 1 affirms that a minor may enter into any contract at all subject only to her right to disaffirm, to wit:

A minor may make any other contract than as above specified, in the same manner as an adult, subject only to his power of disaffirmance under the provisions of this Chapter, and subject to the provisions of the Chapters on marriage, and on master and servant. 

19 G.C.A. § 1107 (emphasis added).  The “above specified” contracts are not related to abortion.  19 G.C.A. § 1106 (“A minor cannot give a delegation of power, nor make a contract relating to real property, or any interest therein, or relating to any personal property, not in his immediate possession or control.”)

Although Senator Cruz is wrong about PL 22-84 and 19 G.C.A. § 1111, it is worth noting that prior to relatively recent developments in the common law, minors could not give consent to medical treatment.  Thus, doctors who treated minors without parental consent exposed themselves to non-payment risk, tort liability or perhaps even criminal liability.  The common law in this area, however, has changed substantially in the last twenty years, with the “‘bright line’ age restriction of 18” being replaced with increasing frequency by the “mature minor doctrine,” which permits minors who are deemed sufficiently mature by the courts to consent to medical treatment.  In re E.G., 549 N.E.2d 322 (Ill. 1989).  Thus, the Guttmacher Institute (which is the research arm of Planned Parenthood) notes that in states that have not established clear laws with respect to the rights of minors to consent to medical treatment, “physicians commonly provide medical care without parental consent to minors they deem mature…”  Guttmacher Institute, State Policies in Brief, November 1, 2011 (emphasis added).

In short, neither PL 22-84, Chapter 1 of Title 19 of the Guam Code nor the common law explicitly prohibits a minor from obtaining an abortion without parental consent.  Any assertion to the contrary is wrong and should not be held up as a basis for opposing Bill 323-31.

Respectfully,


Shane Intihar  

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