Legal opinion backs abortion

The CNMI government is now faced with a dilemma on how to deal with the abortion issue on the island in light of a legal opinion issued by the Attorney General’s Office which says that any woman may legally obtain an abortion in the Northern Marianas.

The legal opinion was crafted in 1995 but resurfaced after discussion on abortion was resurrected in the House of Representatives early this week that has drawn strong opposition from the Catholic church.

Gov. Pedro P. Tenorio yesterday asked the AGO to review the constitutionality of abortion in the CNMI after meeting with religious leaders and members of the Legislature in a move to find a solution to the controversial issue which is now threatening to divide the predominantly Roman Catholic population.

Amid unconfirmed reports that abortion is being practiced in the CNMI, the governor also met with the staff of the AGO to look into the legal implication of the issue.

“I am very much disturbed by reports about abortion being done in the CNMI and we are looking into it because I want to make sure that we follow the intent of our Constitution,” he said.

Legal opinion

According to a legal analysis written by former Attorney General Richard Weil and Assistant Attorney General Celeste Andersen on March 10, 1995, a woman’s right to have an abortion in the CNMI is guaranteed under the Covenant to establish the Commonwealth of the Northern Mariana Islands in political union with the United States
of America, the U.S. Constitution, Supreme Court case law, the CNMI Constitution and the federal statutory law.

When the Northern Mariana Islands decided to join the United States as a Commonwealth in 1976, the CNMI agreed to provide to its people the same fundamental rights enjoyed by the citizens of the United States. It also became obligated to ensure that the liberties and privileges of its people were upheld and protected to the same extent as those of other citizens of the United States.

Both the United States Supreme Court and the CNMI Constitution have recognized that one of these liberties is the individual’s right of privacy which include a woman’s qualified right to seek an abortion.

“This qualified right to abortion must be recognized and respected by the CNMI, just as the fifty states have had to recognize and respect it for the last twenty years since Roe v Wade became the law,” Mr. Weil and Ms. Andersen said.

Lack of Policy

The U.S. Supreme Court case law recognizes that the government may regulate abortion to promote its legitimate interests in protecting the life and health of the mother and in protecting the potentiality of life.

Since no legislation has been passed which addresses the issue of abortion or regulates it any way, the CNMI is left to apply the standards developed in federal case law in formulating a policy on abortion.

But any policy governing abortions must take note of the fact that women in the CNMI do not have options as to where to seek comprehensive medical care.

Since the only full service health care facility within the CNMI is operated and funded by the CNMI government, the Commonwealth Health Center is likely to have the obligation to perform abortions for women seeking them.

However, if a woman is unable to obtain an abortion at CHC, she is left with no other choice but to look for other places where she can exercise her right to have an abortion. She may go to Guam or another jurisdiction, seek out the services of an unlicensed health care provider who most likely lacks adequate training and
facilities to perform abortion safely or she may independently attempt to terminate her pregnancy.

Hyde Amendment

As a participant in the Medicaid program, the CNMI has additional obligations to provide for those abortions specifically covered by the “Hyde Amendment” which prohibits the use of any federal funds to reimburse the cost of abortions except under certain circumstances — to save the life of the mother or that pregnancy is the result of an act of rape or incest.

Several courts which have analyzed the Hyde Amendment have agreed that it has substantively changed the Medicaid Act, thus, relieving states of the obligation to fund those medically necessary abortions for which the federal government has not appropriated funds.

The courts have also ruled that a state which participates in the Medicaid program must provide funding for all abortions specified in the Hyde Amendment.

“The CNMI is a participant in the Medicaid program, and receives funding pursuant to the Medicaid Act. Because the CNMI has chosen to participate in the Medicaid program, it is mandated to provide funding for at least those abortions specified in the Hyde Amendment. The CNMI has made its choice, and must thereby comply with the federal directives,” the legal opinion said.

Rights and obligations

Pursuant to its decision to join the U.S. Commonwealth, the Northern Marianas fulfilled its obligation in several ways when it adopted various provisions in the U.S. Constitution, including Amendments 1 to 9 and Section 1 of Amendment 14 and made them the supreme law of the land.

In addition, the framers of the CNMI Constitution included many important provisions in Article 1, specifically including the right to not be deprived of life, liberty or property without due process of law which was patterned after the Fourteenth Amendment of the U.S. Constitution; and an individual’s right of privacy, a right not specifically granted in the text of the U.S. Constitution.

“It is these constitutional provisions, and the judicial interpretations of these provisions, which have established a woman’s qualified right to determine whether to terminate her pregnancy,” the legal opinion said.

While the U.S. Supreme Court has recognized that a state has the right to promote its interests in ensuring the health of the mother and the potentiality of life, the Court has maintained that this interest cannot create an undue burden on a woman’s right to have an abortion particularly of a nonviable fetus.

“Thus, pursuant to the rights conferred by the right of privacy and due process clause, rights enjoyed by the citizens of the CNMI, the CNMI must respect and uphold a woman’s qualified right to abortion,” the legal opinion added.