Letter to Speaker Won Pat re Cruz error

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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