The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHANDHINI RAIDOO, M.D., No. 21-16559
M.P.H.; BLISS KANESHIRO, M.D.,
M.P.H., on behalf of themselves and D.C. No. 1:21-cv-
their patients, 00009
Plaintiffs-Appellees,
v. OPINION
DOUGLAS MOYLAN, in his official
capacity as Attorney General of
Guam; NATHANIEL BERG, M.D., in
his official capacity as Chair of the
Guam Board of Medical Examiners;
PHILIP FLORES, in his official
capacity as Vice-Chair of the Guam
Board of Medical Examiners;
ARANIA ADOLPHSON, M.D., in her
official capacity as a member of the
Guam Board of Medical Examiners;
LUIS G. CRUZ, M.D., in his official
capacity as a member of the Guam
Board of Medical Examiners;
ANNETTE DAVID, M.D., M.P.H., in
her official capacity as member of the
Guam Board of Medical Examiners;
JOLEEN AGUON, M.D., in her
official capacity as member of the
2 RAIDOO V. MOYLAN
Guam Board of Medical Examiners;
SCOTT SHAY, M.D., in his official
capacity as a member of the Guam
Board of Medical Examiners,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief District Judge,
Presiding
Argued and Submitted February 16, 2023
Honolulu, Hawaii
Filed August 1, 2023
Before: Carlos T. Bea, Daniel P. Collins, and Kenneth K.
Lee, Circuit Judges.
Opinion by Judge Lee
RAIDOO V. MOYLAN 3
SUMMARY *
Abortion
The panel vacated the district court’s preliminary
injunction enjoining enforcement of the informed-consent
requirement in Guam’s Women’s Reproductive Health
Information Act, which requires that women seeking
abortions have an in-person meeting with a physician, or a
qualified agent of the physician, who must disclose certain
medical as well as other information.
Plaintiffs are Guam-licensed OBGYN physicians in
Hawaii who wish to provide abortion services to Guam
patients through telemedicine. They point out that women
in Guam seeking abortions must obtain chemical
abortifacients via telemedicine, given the current lack of
doctors who perform abortions in Guam.
Applying rational basis review, the panel concluded that
the in-person informed consent requirement does not violate
the Due Process Clause because it furthers Guam’s
legitimate governmental interests in preservation of
potential life, protection of maternal health, and promotion
of the integrity of the medical profession.
The panel rejected plaintiffs’ as-applied challenge under
the Due Process Clause, in which plaintiffs argued that the
in-person consultation requirement undermines informed
consent because of the possibility that non-medical
personnel may provide the required medical
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 RAIDOO V. MOYLAN
disclosures. The panel held that the requirement does not
undermine informed consent because it does not mandate
that a non-medical professional provide the in-person
medical disclosures, nor does it prevent the treating
telemedicine doctor from providing medical information to
the patient; it merely requires that patients receive certain
information in person before receiving an abortion.
Finally, the panel rejected plaintiffs’ argument that
Guam’s in-person informed-consent law violates their equal
protection rights because it irrationally treats physicians who
provide abortions differently than similarly situated
telemedicine providers. Applying rational basis review, the
panel held that Guam can require an in-person consultation
for abortions because, unlike other medical procedures,
abortion implicates fetal life in addition to the patient’s
health, and the in-person requirement bears a reasonable
relationship to the legitimate governmental interest of
safeguarding fetal life.
COUNSEL
Jordan L. Pauluhn (argued) and Heather M. Zona, Assistant
Attorneys General; James L. Canto II, Deputy Attorney
General; Leevin Taitano Camacho, Attorney General of
Guam; Office of the Attorney General, Litigation Division;
Tamuning, Guam; for Defendants-Appellants.
Alexa Kolbi-Molinas (argued), Meagan M. Burrows, and
Rachel M. Reeves, American Civil Liberties Union
Foundation, New York, New York; Vanessa L. Williams,
Law Office of Vanessa L. Williams PC, Hagatna, Guam;
Chelsea G. Tejada, ACLU Reproductive Freedom Project,
New York, New York; for Plaintiffs-Appellees.
RAIDOO V. MOYLAN 5
OPINION
LEE, Circuit Judge:
In Dobbs v. Jackson Women’s Health Organization, the
Supreme Court made clear that the Constitution does not
guarantee a right to an abortion because it is neither
enumerated in the constitutional text nor deeply rooted in our
nation’s history. 142 S. Ct. 2228 (2022). So now the
people’s representatives—not judges—decide whether to
allow, ban, or regulate abortions. And in turn, courts play
only a modest and minor role: We merely apply a highly
deferential rational basis review in assessing the
constitutionality of an abortion-related law.
Under this new legal landscape, we vacate the district
court’s preliminary injunction against Guam’s in-person
informed-consent law. That law requires women seeking
abortions to have an in-person meeting with a physician—or
a qualified agent of the doctor—who must disclose certain
medical as well as other information (e.g., medical risks,
adoption opportunities) to a patient before she has an
abortion. Guam has legitimate interests in requiring an in-
person consultation: the consultation can underscore the
medical and moral gravity of an abortion and encourage a
robust exchange of information. As we learned during the
pandemic, a telephonic or video meeting may be a poor
substitute for an in-person meeting, whether it be in the
classroom, courtroom, or clinic.
Plaintiffs point out that women in Guam seeking
abortions must obtain chemical abortifacients via
telemedicine, given the current lack of doctors who perform
abortions on the island. Plaintiffs argue that the law may
thus thwart informed consent because the treating doctor off
6 RAIDOO V. MOYLAN
the island may have to pick a non-medical agent to provide
the in-person medical disclosures. But nothing in the law
prevents the treating doctor from providing the same or
additional information as that required in the in-person
meeting when the doctor meets with patient via
videoconference or phone. The law sets a minimum, not a
maximum, disclosure requirement, and does not prohibit the
doctor from communicating additional information that the
doctor believes is required under another law or professional
obligation. In short, Guam’s law passes muster under the
low bar of rational basis review.
Plaintiffs’ equal protection challenge fails as well.
Guam can require an in-person consultation for abortions—
but not for other medical procedures—because abortion is
different, as it involves what Dobbs described as the “States’
interest in protecting fetal life.” Id. at 2261. People across
the United States and its territories may in good-faith
strongly disagree on abortion, but the people of Guam can
make the policy choice to treat abortion differently from
other medical procedures.
I. BACKGROUND
A. Guam requires in-person informed consent for
abortions.
In 2012, Guam enacted the Women’s Reproductive
Health Information Act, which requires in-person informed
consent from women seeking abortions. 10 Guam Code
Ann. § 3218.1. The statute provides that “consent to an
abortion is voluntary and informed if and only if” certain
conditions are met. 10 Guam Code Ann. § 3218.1(b). This
statute has two key provisions governing the disclosure of
information.
RAIDOO V. MOYLAN 7
First, as relevant here, the woman seeking an abortion
must receive certain medical information in person at least
24-hours before the procedure. 10 Guam Code Ann.
§ 3218.1(b)(1). The required medical information includes
“medically accurate information that a reasonable person
would consider material to the decision of whether or not to
undergo the abortion,” such as immediate and long-term
medical risks associated with abortion, the likely gestational
age of the fetus, and medical risks associated with carrying
the child to term. See 10 Guam Code Ann.
§ 3218.1(b)(1)(B)–(E).
Second, section (b)(2) requires in-person disclosure of
information about social services and other assistance
available to an expectant mother. 10 Guam Code Ann.
§ 3218.1(b)(2). For example, a woman seeking an abortion
must be informed of medical assistance benefits, public
assistance for her child, adoption services, and the father’s
liability for child support. See 10 Guam Code Ann.
§ 3218.1(b)(2)(A)–(F).
Relevant here, both sections (b)(1) and (b)(2) require the
physician who will perform the abortion—or a “qualified
person”—to provide the information in person. 10 Guam
Code Ann. § 3218.1(b)(1), (2). The statute defines a
“qualified person” as “an agent of a physician who is a
psychologist, licensed social worker, licensed professional
counselor, registered nurse, or physician.” 10 Guam Code
Ann. § 3218.1(a)(13).
8 RAIDOO V. MOYLAN
B. No doctor in Guam will perform an abortion but
women can obtain medication abortions via
telemedicine.
In 2018, the last physician known to provide abortions in
Guam retired. And no physician has since been known to
provide abortions on the island.
In 2017, the Guam Attorney General concluded that
Guam-licensed physicians located off the island can provide
medical care to patients in Guam using telemedicine. See
Guam Att’y Gen. Op. No. 17-0531, 2–3 (Nov. 6, 2017). In
2021, the Guam Attorney General specifically stipulated in
another lawsuit that Guam law permits the use of
telemedicine to provide medication abortions.
Plaintiffs Shandhini Raidoo, M.D., M.P.H., and Bliss
Kaneshiro, M.D., M.P.H., are Guam-licensed OBGYN
physicians in Hawaii who wish to provide abortion services,
including medication abortions, to Guam patients through
telemedicine. They believe that they are the only doctors
who are willing to provide abortion services to women in
Guam. But Plaintiffs acknowledge that supportive
physicians in Guam are “willing to provide pre- and post-
abortion care.” Guam law requires in-person informed-
consent for abortions, even if women use chemical
abortifacients obtained via telemedicine.
C. The district court enjoins the Guam law in
reliance on Roe and Casey.
In January 2021, Plaintiffs filed a complaint alleging that
the in-person informed-consent requirement violates their
patients’ right to an abortion under Roe v. Wade, 410 U.S.
113 (1973), and Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S. 833 (1992). The complaint
RAIDOO V. MOYLAN 9
also alleged that the law violates the Equal Protection Clause
of the Fourteenth Amendment.
A week later, Plaintiffs moved for a preliminary
injunction. And in September 2021, the district court
enjoined enforcement of the in-person informed-consent
provision, ruling that the law imposed an “undue burden” on
a woman’s right to an abortion under Casey. It found that
Guam failed to show any “real justification or benefits of the
in-person requirement” while the burdens imposed were
“substantial.”
Guam then appealed the district court’s grant of a
preliminary injunction. We have jurisdiction under 28
U.S.C. § 1292(a)(1).
II. STANDARD OF REVIEW
We review the district court’s grant of a preliminary
injunction for abuse of discretion. See Porretti v. Dzurenda,
11 F.4th 1037, 1046 (9th Cir. 2021). We review legal
questions de novo, Bouman v. Block, 940 F.2d 1211, 1220
(9th Cir. 1991), and factual findings for clear error, United
States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009) (en
banc).
To obtain a preliminary injunction, a plaintiff must
establish (1) a likelihood of success on the merits, (2) a
likelihood of irreparable harm in the absence of preliminary
relief, (3) that the balance of equities favors the plaintiff, and
(4) that an injunction serves the public interest. See Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “A
preliminary injunction is an extraordinary remedy never
awarded as of right.” Id. at 24.
10 RAIDOO V. MOYLAN
III. DISCUSSION
We vacate the district court’s grant of a preliminary
injunction enjoining enforcement of the in-person informed-
consent requirement of 10 Guam Code Ann. § 3218.1.
After the district court issued its order, the Supreme
Court announced in Dobbs that abortion statutes are no
longer subject to Casey’s undue burden standard. Dobbs,
142 S. Ct. at 2242. Rather, an abortion-related law must only
survive rational basis review. Id. at 2284. And under that
deferential standard, Plaintiffs cannot show a likelihood of
success on the merits because Guam has legitimate interests
in imposing an in-person requirement and the law is
rationally related to those goals.
A. We apply rational basis review in assessing
Guam’s in-person informed-consent requirement
for abortions.
The Supreme Court in Dobbs overturned Roe and Casey,
rejecting a constitutional right to an abortion and casting
aside Casey’s undue burden test for assessing abortion laws.
Dobbs, 142 S. Ct. at 2242, 2283. Now, abortion laws—“like
other health and welfare laws”—are decided by the people
and their elected representatives, and are generally subject
only to rational basis review by the courts. Id. at 2284.
Rational basis review is “a paradigm of judicial
restraint,” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314
(1993), that is “highly deferential to the government,” Erotic
Serv. Provider Legal Educ. & Rsch. Project v. Gascon, 880
F.3d 450, 457 (9th Cir. 2018) (citing United States v.
Hancock, 231 F.3d 557, 566 (9th Cir. 2000)). We must
uphold a law under rational basis review if the government
has a legitimate interest in enacting the statute, and the law
RAIDOO V. MOYLAN 11
is rationally related to that interest. Under this deferential
standard, laws enacted by the people are “entitled to a
‘strong presumption of validity.’” Dobbs, 142 S. Ct. at 2284
(internal citation omitted). Challengers of the law “have the
burden ‘to negative every conceivable basis which might
support it.’” Beach Commc’ns, Inc., 508 U.S. at 315
(quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S.
356, 364 (1973)).
It matters not that judges may think the law unwise or
believe it could have been drafted more narrowly or
differently. Indeed, a law survives rational basis review so
long as some conceivable legitimate purpose could have
supported it—regardless of a legislature’s actual purpose in
enacting a statute. Beach Commc’ns, Inc., 508 U.S. at 315.
The legislature does not need proof that the statute will
achieve its asserted purpose: a statute will pass muster if the
purpose of the law rests on “rational speculation,” even if the
speculation is “unsupported by evidence or empirical data.”
Id. A law thus survives rational basis review even if it
requires “rough accommodations” that may be “illogical” or
“unscientific,” and that may even appear “unjust and
oppressive.” Metropolis Theater Co. v. City of Chicago, 228
U.S. 61, 69–70 (1913).
B. Guam’s in-person informed-consent law survives
rational basis review.
In assessing the constitutionality of Guam’s in-person
informed-consent requirement, we examine whether the law
furthers any legitimate governmental purpose and is
rationally related to that goal. Nordlinger v. Hahn, 505 U.S.
1, 10 (1992). We may find a law unconstitutional under
rational basis review, for example, if the means employed
are “directly contrary to the [law’s] basic purpose” or if the
12 RAIDOO V. MOYLAN
means are “wholly unconnected to any legitimate state
interest.” Silveira v. Lockyer, 312 F.3d 1052, 1089–91 (9th
Cir. 2003). Guam’s law easily meets that bar.
1. Guam has valid and legitimate state interests
in requiring an in-person consultation before
a patient undergoes an abortion.
We reject Plaintiffs’ argument that an in-person
informed-consent requirement for women seeking an
abortion is not rationally connected to any legitimate
governmental interest.
Guam identifies three legitimate purposes that the in-
person requirement furthers: (1) preservation of “potential
life,” (2) protection of maternal health, and (3) promotion of
the integrity of the medical profession. Guam contends that
a “private, in-person setting is the appropriate and solemn
setting for a patient to fully appreciate the information being
provided,” and the “same level of formality is not present
when the information is being provided over video
conferencing” or other similar media.
Each of Guam’s asserted interests constitutes a
legitimate governmental interest. The Supreme Court has
recognized that legitimate governmental interests include
“respect for and preservation of prenatal life at all stages of
development; the protection of maternal health and safety;
. . . [and] the preservation of the integrity of the medical
profession.” Dobbs, 142 S. Ct. at 2284. This case therefore
turns on whether Guam’s in-person informed-consent law is
rationally related to any of those interests. We believe it is.
Guam could reasonably conclude that communication in
a face-to-face setting has a different impact than in virtual
RAIDOO V. MOYLAN 13
spaces. 1 It could rationally determine that face-to-face
meetings can facilitate clearer communication, as well as
enhance the ability to read body language and other non-
verbal cues. 2 And it could likewise reasonably believe that
in-person settings encourage more frank and robust
discussions, enable connectedness between those having the
discussion, and ensure a more focused and undistracted
setting. 3
1
See, e.g., Anne Bowen Poulin, Criminal Justice and Videoconferencing
Technology: The Remote Defendant, 78 Tul. L. Rev. 1089, 1124–25
(2004) (explaining how video interactions versus in-person interactions
can affect how a person acts or is perceived to be acting).
2
Ed Spillane, The End of Jury Trials: Covid-19 and the Courts, 18 Ohio
St. J. Crim. L. 537, 542 (2021) (stating that “there is a difference between
in-person interaction and virtual interactions” and noting that “[c]hildren
testifying via remote closed-circuit television have been found to be less
credible and accurate than children testifying in-person according to a
mock jury”); Elizabeth G. Thornburg, Observing Online Courts: Lessons
from the Pandemic, 54 Fam. L.Q. 181, 202–03 (2020) (explaining how
presentation and argument is received differently in person as compared
to over Zoom).
3
See, e.g., Stephanie Riegg Cellini, How does virtual learning impact
students in higher education?, Brookings: Brown Center Chalkboard
(August 13, 2021) (explaining that online learning often leads to
“negative learning impacts, reduced course completion, and lack of
connection with other students and faculty” which “could ultimately
reduce college completion rates”); see also Kelli A. Bird, Benjamin L.
Castleman & Gabrielle Lohner, Negative Impacts from the Shift to
Online Learning During the COVID-19 Crisis: Evidence from a
Statewide Community College System., 8 AERA Open 1, 3 (2022) (“The
lack of in-person interaction in online courses can lead to a sense of
isolation and disconnectedness from a learning community, and can
make it more difficult for students to engage with and learn from peers
and instructors.” (citation omitted)).
14 RAIDOO V. MOYLAN
It is thus reasonable for Guam to prefer an in-person
meeting before a pregnant woman moves forward with the
weighty decision of having an abortion. For example, an in-
person meeting can advance the state’s goal of protecting the
health of the mother because a face-to-face meeting can feel
less rushed and more intimate than a phone call or a virtual
meeting. A pregnant woman may ask more follow-up
questions in a face-to-face meeting, leading to a more
detailed discussion about the potential impact of an abortion
(or giving birth) on her health. See Dobbs, 142 S. Ct. at 2284
(“legitimate interests include . . . the protection of maternal
health and safety”).
Similarly, in the more solemn context of a face-to-face
meeting—unlike a Zoom call—a pregnant woman may
decide against an abortion after having a candid conversation
at the clinic about the gestational age of her fetus and
concluding that the fetus represents human life. See 10
Guam Code Ann. § 3218.1(b)(1)(B)–(F) (requiring, among
other things, disclosure of gestational age of her fetus). Or a
pregnant woman may take more time to reconsider an
abortion after learning of social welfare programs that assist
mothers with newborns. See 10 Guam Code Ann.
§ 3218.1(b)(2)(A)–(F) (requiring disclosure of information,
among other things, about medical assistance benefits,
public assistance for her child, adoption options, and the
father’s liability for child support). It also may turn out that
the in-person meeting does not affect a woman’s decision
and may even reaffirm her conviction to move forward with
an abortion. Regardless of the law’s actual impact on a given
woman’s decision, we cannot deny that the in-person
requirement could rationally serve a legitimate state interest
in protecting fetal life. Dobbs, 142 S. Ct. at 2284.
RAIDOO V. MOYLAN 15
Finally, a face-to-face meeting can further the legitimate
state goal of “the preservation of the integrity of the medical
profession.” Id. While telemedicine has been a boon for
many patients, it can implicate certain ethical issues for
physicians. See, e.g., Danielle Chaet, Ron Clearield, James
E. Sabin & Kathryn Skimming, Ethical Practice in
Telehealth and Telemedicine, 32 J. Gen. Internal Med. 1136
(2017)
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5602756/.
The ethical questions can range from privacy protection
(e.g., virtual calls may not be as secure as a meeting in a
doctor’s office) to more serious problems (e.g., questions
about transparency and informed consent in a potentially
more rushed virtual setting). Id. Guam’s law could
potentially place a guardrail against such potential problems.
In sum, so long as the law rests on “rational speculation,”
we must uphold it under rational basis review. Beach
Commc’ns, Inc., 508 U.S. at 315. Guam has met that low
legal bar of offering a rational basis for requiring an in-
person consultation before a pregnant woman moves
forward with an abortion. Ultimately, we cannot “substitute
[our] social and economic beliefs for the judgment of
legislative bodies.” Dobbs, 142 S. Ct. at 2284.
2. Plaintiffs’ as-applied challenge fails because
enforcement of the in-person requirement
does not undermine informed consent.
Plaintiffs also offer a more nuanced argument that the in-
person consultation requirement undermines informed
consent here because of the possibility that non-medical
personnel may provide the required medical disclosures.
This argument, too, fails.
16 RAIDOO V. MOYLAN
Informed consent is grounded in “the patient’s interest in
achieving his [or her] own determination on treatment,”
Canterbury v. Spence, 464 F.2d 772, 787 (D.C. Cir. 1972),
and “is meant to ensure that each patient has the information
she needs to meaningfully consent to medical procedures.”
Stuart v. Camnitz, 774 F.3d 238, 251 (4th Cir. 2014)
(cleaned up). Informed consent thus generally imposes a
duty to disclose all material facts related to a patient’s
treatment or procedure. See, e.g., Harbeson v. Parke Davis,
Inc., 746 F.2d 517, 522 (9th Cir. 1984).
Because no physicians currently provide abortion
services in Guam, Plaintiffs contend that the in-person
requirement undermines the very purpose of Guam’s
informed-consent statute to provide “complete and accurate
information material to her decision to undergo an abortion.”
Guam Pub. L. 31-235 (2012). Plaintiffs assert that Guam’s
law would effectively mean that a Guam-based counselor,
psychologist, or social worker—not the treating physician—
would convey medical information to a woman considering
an abortion.
But Guam’s law does not mandate that a non-medical
professional provide the in-person medical disclosures, nor
does it prevent the treating telemedicine doctor from
providing medical information to the patient. Indeed,
doctors generally have an ethical duty to patients to provide
all relevant information and answer questions. See, e.g.,
Harbeson, 746 F.2d at 522; see also Committee on Ethics,
American College of Obstetricians and Gynecologists,
Informed Consent and Shared Decision Making in
Obstetrics and Gynecology, 137 Obstetrics & Gynecology
e34, e35 (2021) (Committee Opinion No. 819) (stating that
“[m]eeting the ethical obligations of informed consent
requires that an obstetrician–gynecologist gives the patient
RAIDOO V. MOYLAN 17
adequate, accurate, and understandable information”). In
other words, Guam’s statute sets a minimum disclosure
requirement for informed consent, not a maximum. It does
not prevent the treating doctor from providing the same
information or more information; it merely requires that
patients receive certain information in person before
receiving an abortion. See generally 10 Guam Code Ann.
§ 3218.1.
Plaintiffs imply that Guam’s informed-consent statute
could be more effective if it required a physician to provide
the state-mandated information. But it does not matter under
rational basis review that the “fit between [the] means and
[the] ends” of the statute may be “imperfect”: “courts are
compelled” to uphold the statute if it bears a rational
relationship to some legitimate governmental purpose.
Aleman v. Glickman, 217 F.3d 1191, 1201 (9th Cir. 2000)
(cleaned up). And Guam’s informed-consent statute bears a
rational relationship to the preservation of fetal life and
health of the mother because an in-person requirement
ensures a more intimate setting for a woman to receive
information before she makes the final decision to terminate
fetal life.
In any event, it is unclear from the record that Guam
patients will receive informed-consent information from
only non-medical professionals. To start, the law does not
require a non-medical professional to provide the medical
information. The treating physician chooses his or her
qualified agent to provide the information, and presumably
the doctor will select the appropriate person under the
patient’s unique circumstances. As Plaintiffs themselves
state, “there is nothing intrinsically unreasonable about a
physician delegating the responsibility for the informed
18 RAIDOO V. MOYLAN
consent conversation to another physician or health care
professional who is sufficiently knowledgeable about the
relevant treatment or procedure to facilitate the informed
consent process.”
Further, Plaintiffs’ declarations make clear that there are
“multiple supportive physicians in Guam who are willing to
provide pre- and post-abortion” care, even if they do not
want to personally perform abortions. Put another way,
nothing in the record shows that those same physicians are
unwilling to provide the state-mandated informed-consent
information to patients. 4 In the end, Plaintiffs have not met
their burden “to negative every conceivable basis which
might support” the law. Beach Commc’ns, Inc., 508 U.S. at
315.
In short, the in-person requirement does not violate the
Due Process Clause as it furthers Guam’s legitimate state
interests and does not undermine informed consent.
3. Plaintiffs’ equal protection claim also fails
because abortion is meaningfully different
from other medical procedures.
Finally, Plaintiffs assert that Guam’s in-person
informed-consent law violates their equal protection rights
because it irrationally treats physicians who provide
abortions “differently than similarly situated telemedicine
providers.” That claim also fails.
4
At oral argument, Plaintiffs stated for the first time that the physicians
who provide pre- and post-abortion care would not be willing to provide
in-person consultations because they would have to formally associate
themselves with abortion providers and that they refuse to do so. But the
record is silent about this contention.
RAIDOO V. MOYLAN 19
We review equal protection challenges under rational
basis unless the law “impermissibly interferes with the
exercise of a fundamental right or operates to the peculiar
disadvantage of a suspect class.” Mass. Bd. of Ret. v.
Murgia, 427 U.S. 307, 312 (1976). Heightened scrutiny
does not apply here because abortion is not a fundamental
right, and no suspect class is at play. See United States v.
Whitlock, 639 F.3d 935, 940 (9th Cir. 2011).
Under rational basis review, a legislative “classification
must be upheld against equal protection challenge if there is
any reasonably conceivable state of facts that could provide
a rational basis for the classification.” Gallinger v. Becerra,
898 F.3d 1012, 1017 (9th Cir. 2018) (emphasis omitted)
(quoting Heller v. Doe, 509 U.S. 312, 320 (1993)). Put
another way, a law that differentiates between similarly
situated groups is constitutional if it “bears a reasonable
relationship to a legitimate governmental interest.” United
States. v. LeMay, 260 F.3d 1018, 1031 (9th Cir. 2001).
Even assuming that doctors who perform abortions are
otherwise similarly situated to doctors who perform other
medical services, it was rational for the Guam legislature to
treat them differently because abortion presents different
considerations than other medical procedures. Unlike other
medical procedures, abortion implicates fetal life in addition
to the patient’s health. See Dobbs, 142 S. Ct. at 2277
(“‘[A]bortion is a unique act’ because it terminates ‘life or
potential life.’”); Harris v. McRae, 448 U.S. 297, 325 (1980)
(“Abortion is inherently different from other medical
procedures, because no other procedure involves the
purposeful termination of a potential life.”). The in-person
requirement “bear[s] a reasonable relationship to [the]
legitimate governmental interest” of safeguarding fetal life.
Whitlock, 639 F.3d at 940 (cleaned up). Guam’s law thus
20 RAIDOO V. MOYLAN
survives rational basis review and does not violate the Equal
Protection Clause.
IV. CONCLUSION
As the Supreme Court has instructed, abortion policy is
best left to the people’s representatives. Dobbs, 142 S. Ct.
at 2243. And when the legislature, as it must, “engage[s] in
a process of line-drawing,” United States R.R. Ret. Bd. v.
Fritz, 449 U.S. 166, 179 (1980), the Supreme Court has
routinely emphasized that the legislature “must be allowed
leeway” in its approach, Beach Commc’ns, Inc., 508 U.S. at
316. Guam can enact laws that it believes are best for its
people, even if some people might strenuously oppose such
laws or think them unwise.
We hold that Plaintiffs have failed to show a likelihood
of success on the merits that the in-person informed-consent
requirement of 10 Guam Code Ann. § 3218.1 fails rational
basis review. We thus vacate the district court’s grant of a
preliminary injunction. Garcia v. Google, Inc., 786 F.3d
733, 740 (9th Cir. 2015) (en banc).
VACATED.