Pro-Life Victories in the Supreme Court Decision on the RH Law
VS Perdigon Jr
Life begins at
fertilization. The Supreme Court says so in its decision on the RH Law (Paragraph
5 Page 47). Fertilization is the process whereby the sperm unites with the egg
cell. From then on, asserts the Court, the fertilized ovum is a human being (Par
7 Pg 46). The Constitution states that life begins at conception (Article II
Section 12) and the Court declared that the moment of conception is “when the
ovum is fertilized by the sperm” (Pars 2 and 3 Pg 42). Records of the
Constitutional Convention reveal that the delegates were referring to
fertilization when they used the term conception (September 12, 1986 Pg 669).
They used conception instead of fertilization “because . . . the phrase
‘fertilized ovum’ may be beyond the comprehension of some people.” They wanted
“to use the simpler phrase ‘from the moment of conception’” (Par 9 Pg 42). It is, therefore, unconstitutional to prevent
through substances, devices (IUD) or procedures the fertilized ovum from
getting implanted in the womb. It is illegal to prevent it from ultimately
being born. This is a major victory
of the pro-life advocates.
The principal
author of the RH Law, Edcel Lagman, argues that life begins at implantation (Par
1 Pg 48). The SC ruling struck down his argument. I believe this is the big
reason the ex-congressman from the First District of Albay opted to remain
quiet after the publication of the decision. Recall that he proposed to fund
the use of contraceptives from the pork barrel. Well, the pork barrel was
earlier declared unconstitutional by the high court. As a taxpayer, I
comprehend why his enthusiasm has fizzled out like a spent firework.
Indeed, the
pro-life advocates have reason to rejoice. Two-thirds of the battle is won –
fertilization to implantation and implantation to childbirth. On issues beyond
childbirth (such as skilled birth attendance, maternal care, reproductive tract
infections), the pro-life and pro-choice, I suppose, do not have major
contradictory positions so there is no battle to speak of.
We now train our
“guns” on the remaining third – the pre-fertilization arena. This is where we
grapple with issues involving the condom, vasectomy, tubal ligation, sex
education, etc.
The second victory of the pro-life
advocates is the SC ruling that the RH Law is principally for population
control, thus chastising the pro-choice for their claim that RA 10354 is not
intended to reduce the growth rate. Par 4 Pg 34 of the decision states:
Despite efforts to
push the RH Law as a reproductive health law, the Court sees it as principally
a population control measure. The corpus of the RH Law is geared towards the
reduction of the country’s population.
Par 2 Pg 35 further
states:
The Court, thus,
agrees with the petitioners’ contention that the whole idea of contraception
pervades the entire RH Law. It is, in fact, the central idea of the RH Law.126
Indeed, remove the provisions that refer to contraception or are related to it
and the RH Law loses its very foundation. 127 As earlier explained,
“the other positive provisions . . . are already provided for in the Magna
Carta for Women.”128
The third victory of the pro-life
advocates is the unequivocal ruling by the Supreme Court that the Constitution
prohibits enactment of any pro-abortion law. Par 6 Pg 48 states:
The clear and
unequivocal intent of the Framers of the 1987 Constitution in protecting the
life of the unborn from conception was to prevent the Legislature from enacting
a measure legalizing abortion. It was so clear that even the Court cannot interpret it otherwise (emphasis in the
original).
At face value, the
pro-choice was favored by the SC ruling declaring the RH Law “not
unconstitutional” on the ground that it does not allow abortion. Ironically,
the ruling favors the pro-life advocates because the real battle is not against the constitutionality of the RH Law
but for the sanctity of life. By
asserting the sanctity of life, the Court has made moot and academic the
constitutionality of the RH Law on the basis of its provisions about abortion.
The SC ruling is
significant because it pre-empts any abortion law that might later be advanced by
the pro-choice through equation of conception to implantation.
The fourth victory of pro-life advocates is
the Supreme Court ruling that stymied the attempt of pro-choice advocates to
“smuggle” back through the IRR what RA 10354 removed from HB 4244 –
contraceptives that prevent implantation or kill the fertilized ovum – by
inserting the seemingly innocent word “primarily” in the definition of
“abortifacients” and “contraceptives.” The Court prudently exposed the trick by
declaring that provisions 3.01 a and j
of the IRR are contrary to Section 4
a of the Act.
The Supreme Court
put its foot down by declaring a one-paragraph sentence on Pg 53: This cannot be done (emphasis
supplied). Henceforth, if it is shown that a certain contraceptive intended to
prevent fertilization also prevents implantation or kills the fertilized ovum,
then such contraceptive shall be illegal and unconstitutional.
Not too long ago, Sergio Apostol was
interviewed on television about another subject matter and he commented that
sometimes the IRR obviates the intent of a republic act by providing a
different statement. What some parties fail to accomplish through an RA they
succeed through the IRR.
The experience with the RH Law and the
criticism of Mr. Apostol should prompt a policy shift in lawmaking. Perhaps,
the Senate should adopt a fourth reading
of a law where there would be no more debates but mere checking if the IRR is
faithful to the RA. The Supreme Court is there to ensure faithfulness of the
IRR to the RA but it can only perform such function if a law is challenged. If
no stakeholder questions, “smuggling through the IRR” would easily subvert the
intent of the law. A checking of every IRR by the Senate through a fourth reading
will protect the people. It will not, nevertheless, prevent any challenge of a
particular IRR before the Supreme Court.
The fifth victory of the pro-life advocates
is the Supreme Court ruling that the sale, distribution and dispensation of
contraceptives (defined in RA 4729 as substances or devices that prevent
fertilization) will be according to RA 4729 and RA 5921 which require the
involvement of licensed prescription drugstores, hospital pharmacy, and pharmaceutical
companies, and qualified medical practitioners in the aforementioned
transactions (Par 2 Pg 57 and Par 5 Pg 59). Without the pro-life challenge and
the consequent SC ruling, the repealing clause of RA 10354 would have voided
the requirements of RAs 4729 and 5921. Moreover, this ruling proves that the RH Law is a redundancy over earlier
laws.
The SC ruling chastises the respondents by declaring as empty and
absurd the proviso in Section 9 stating “any product or supply included or to be
included in the (Essential Drugs List) must have a certification from the FDA
that said product and supply is made available on the condition that it is not to be used as an
abortifacient” (emphasis supplied). Par 4 Pg 51 states:
The FDA, with all its expertise, cannot fully attest
that a drug or device will not all (sic) be used as an abortifacient, since the
agency cannot be present in every instance when the contraceptive product or
supply will be used. 171
Hence, the Supreme Court points out that the phrase it is not to be used should “bend to the legislative intent and
mean it cannot be used” (Par 4 and 5 Pg
51; italics in the original).
The Supreme Court
reminds the government that “it may be held accountable for any injury, illness
or loss of life” caused by the contraceptives distributed. The Court also
awaits cases to be brought before it when specific contraceptives shall have
been submitted to the FDA (Par 6 Pg 59).
The Court reminds
Congress that “safe, non-abortifacient, and effective” contraceptives cannot be
ascertained by legislation but through proper scientific examination
specifically to be done by the FDA (Par 7 Pg 59 and Par 1 Pg 60).
Be that as it may,
this point addresses the fear of proliferation of contraceptives and sexual
promiscuity. The pro-life advocates cannot be complacent on this victory.
Drugstores, pharmaceutical companies and medical practitioners can still sell,
distribute and dispense with contraceptives left and right yet cleverly be in
technical compliance with the law. They can comply with the letter but subvert
the spirit of the law.
The sixth victory is the Supreme Court’s
affirmation of the inviolability of conscience and freedom of religion. On such
ground, the Court sustained the pro-life contention that conscientious
objectors, even if they are public officials, cannot be coerced into referring
patients to RH service providers. Denying such public officials their right to
conscientiously object is to deny them equal protection of the law (Par 4 Pg
72, Par 2 Pg 73, Par 1 Pg 75). The same exemption is granted to hospitals
operated by conscientious objectors (Par 1 Pg 74). The pro-choice advocates
failed to prove that a compelling state interest would be jeopardized by the conscientious
objection of public officials according to the Court (Par 5 Pg 76).
The Court cited
another redundancy of the RH Law when it declared in Par 1 Pg 78 that other
laws already protect the right to health which would not be infringed upon by
conscientious objectors – RA 4729 (Contraceptive Act), RA 6365 (The Population
Act of the Philippines), RA 9710 (The Magna Carta for Women). In fact, cited
the Court, even without the RH Law maternal mortality in the Philippines
dropped 48% from 1990 to 2008 and 81% from 1980 to 2008, outperforming first
world countries like Germany, Russia and Israel where abortion is legal (Par 2 Pg
80 and Footnote 236).
The SC ruling
confirmed the pro-life position that in emergency situations necessitating
reproductive health procedures on the mother and/or the child “the doctor is
morally obliged to try to save both lives. If, however, it is impossible, the
resulting death to one should not be deliberate." (Par 5 Pg 80)
The Court also
reiterated the right to free speech and its coverage of the right to remain
silent (Par 1 Pg 73). Thus, objectors cannot be coerced into disseminating
information about substances, devices or procedures that they believe
contravene religious freedom.
The seventh victory is the SC ruling
upholding the great importance of the family as the basic unit of society. The
Court struck down Section 23 a 2 i
and agrees with the pro-life position that the provision intrudes into the
privacy and autonomy of the family (Pars 1 and 2 Pg 82). The Court further
comments in Par 11 Pg 82:
In this case, the RH Law, in its not-so-hidden desire
to control population growth, contains provisions
which tend to wreck the family as a solid social institution. It bars the
husband and/or the father from participating in the decision making process
regarding their common future progeny. It likewise deprives the parents of
their authority over their minor daughter simply because she is already a parent
or had suffered a miscarriage (emphasis supplied).
The eighth victory is the SC affirmation of
the primary role of parents in educating their children about sex. Although the
Court ruled that Section 14 is constitutional, it grounds the decision on
prematurity and would rather wait for the Department of Education to come up
with the curriculum. The Court sees the provision as supplementary to “the
rights and duties of parents in the moral development of their children.” (Par
2 Pg 88)
The ninth victory is the comment of the
Supreme Court in Pars 4 and 5 Pg 101 which upholds the pro-life arguments that
(1) poverty and unemployment are problems whose solution lies not in the RH Law
but in equitable distribution of the country’s wealth; and (2) “population
control may not be beneficial for the country in the long run.”
The European and
Asian countries, which embarked on such a program generations ago, are now
burdened with ageing populations. The number of their young workers is
dwindling with adverse effects on their economy . . . These countries are now
trying to reverse their programs, but they are still struggling. For one,
Singapore, even with incentives, is failing (Par 5 Pg 101).
Bear
in mind that the Court states in Par 4 Pg 34 that the RH Law is a population
control measure. The Court took note of the fact that the younger generation is
propping up the Philippine economy. The Court expressed its apprehension over
the economy if it were to be weighed down by an ageing population and fewer
younger generation as a result of growth control policies. The ruling stated
the fact that the sustainable growth rate is 2 children per woman (Par 1 Pg
102).
Interesting
is the Court comment in Par 4 Pg 102:
Be that as it may, it bears reiterating that
the RH Law is a mere compilation and enhancement
of the prior existing contraceptive and reproductive health laws, but with coercive measures. Even if the
Court decrees the RH Laws as entirely unconstitutional, there will still be the
Population Act (R.A. No. 6365), the Contraceptive Act (R.A. No. 4729) and the
reproductive health for women or The Magna Carta for Women (R.A. No. 9710),
sans the coercive provisions of the assailed legislation. All the same, the
principle of “no-abortion” and “non-coercion” in the adoption of any family
planning method should be maintained (italics in the original, emphasis
supplied).
By
declaring the RH Law “not unconstitutional,” the Court does not state that it
is a wise solution to the population problem (Par 2 Pg 102). It merely
reiterates the policy of “non-interference in the wisdom of a law.” The Court
is limited to the judicial task of “saying what the law is, as enacted by the
lawmaking body” (Par 3 Pg 102). As a layman, I interpret that to mean the Court
cannot prescribe an alternative but only rule on the constitutionality or
unconstitutionality of what is presented before it.
It is the tenth victory for pro-life advocates when the Supreme Court partially granted our petitions. Eight
(8) provisions are declared unconstitutional.
Without
the resistance posed by the pro-life, the Act could have been as virulent as it
was when passed by Congress.
In summary, by this
taxpayer’s and citizen’s understanding of the SC decision, there were 27 issues
contended. Sixteen (16) were won by the pro-life. One issue, the constitutional
ban on abortion, is neutrally decided being acceptable to both. Nevertheless,
the significance of the victory or defeat should not be measured by these
figures. The issues are not equal in gravity and consequence.
The triumph on
fertilization as the beginning of life, I believe, trumps all other issues. We
win this battle and we win a tremendous victory in the war for life. Some
argue, no longer in the realm of medicine but philosophy, that life begins
earlier than fertilization. The sperm and the egg cells each has life prior to
contact. Only life can beget life. It cannot be begotten by two grains of sand
that fuse. However, we save that discussion for another day.
Though neutrally
decided, the ruling that reaffirms the unconstitutionality of abortion is very
valuable to the pro-life. With this assurance from the Supreme Court, the
pro-life pre-empts the second phase of the pro-choice drive against life – the
legalization of abortion. We have defeated them long before they craft their pro-abortion
battle plan. Also very valuable is the defense of religious freedom. The SC
ruling is a warning to the pro-choice never again to assail it through the
worn-out strategy of Church-State separation. Also very valuable is the primacy
of parents in rearing their children and the privacy of the family which the
State must not intrude upon unless compelling reasons obtain for justifiable
good.
The issues lost are
of varied importance. Except for natural law and RH Law ban on abortion, the
issues we lost are tactical and operational, not strategic. The argument on
natural law is a battle we can fight another day. The RH Law ban on abortion is
an argument won by the advocates of the Law but for all intents and purposes,
the pro-life must be singing halleluiah. Arguing that the RH Law favors
abortion, the pro-life was able to induce a ruling that reiterates the constitutional
ban on the procedure.
All the preceding
points considered, I do not have to question why the advocates of the RH Law
are also claiming victory. Let them. It is sometimes good tactic to allow your
opponent a graceful exit from battle.
The Supreme Court decision is a win-win
arrangement. It can be described as Solomonic. Even the UN was appeased. By analogy,
we may liken the RH Law to a plate of rice with bits of stones in it served to
us by the cook. We complained to the restaurant manager who then ordered the
food to be replaced with clean rice. We are happy, the cook is happy, and
everyone else is happy. Still, we are watchful for any bit of stone we might still
find or consequent effects eating the rice may result into.
The declaration of 8 provisions as
unconstitutional is a reprimand to
RH Law proponents. It sustained the pro-life arguments. Their removal almost
returns us to the legal provisions prior to the RH Law. With the demise of the
pork barrel as a source of funding for the implementation of the Law, congressmen
can no longer gain financially from it.
We
do not say that the RH Law is totally acceptable to the pro-life. The Law has
its inherent objectionable defects. For one, the allocation of taxpayers’ money
to contraceptives will redound to the profit of multinational drug companies
while basic needs of the people are crying for funds. The danger of sexual
promiscuity is real. As mentioned, there is still a battle to be fought. Our
experience with the RH issue taught us the importance of continued vigilance,
even beyond the passage of the Act.
There
are two seeming inconsistencies that need to be addressed:
1.
As
regards natural law. - The Supreme
Court decision invokes the natural law in assessing the arguments on the right
to life but the same Court belittles it in assessing arguments on the
constitutionality of the RH Law. Par 2 Pg 38 states:
It is a
universally accepted principle that every human being enjoys the right to life.
137 Even if not formally established, the right to life, being grounded on natural law, is
inherent and, therefore, not a creation of, or dependent upon a particular law,
custom or belief. It precedes and transcends any authority or the laws of men
(emphasis supplied).
On the other
hand, Par 2 Pg 100 states:
With respect to
the argument that the RH Law violates natural law, 276 suffice it to
say that the Court does not duly recognize it as a legal basis for upholding or
invalidating a law. Our only guidepost is the Constitution. While every law
enacted by man emanated from what is perceived as natural law, the Court is not
obliged to see if a statute, executive issuance or ordinance is in conformity
to it. To begin with, it is not enacted by an acceptable legitimate body.
Moreover, natural laws are mere thoughts and notions on inherent rights
espoused by theorists, philosophers and theologists. The jurists of the
philosophical school are interested in the law as an abstraction rather than in
the actual law of the past or present.277 Unless, a natural right has been transformed into a written law, it
cannot serve as a basis to strike down a law (emphasis supplied).
2.
As
regards coercion. – The Supreme
Court states in Par 2 Pg 102:
Indeed,
at the present, the country has a population problem, but the State should not use coercive measures (like the penal
provisions of the RH Law against conscientious objectors) to solve it (emphasis supplied).
However, in Par 4 Pg 102, the
Court states:
Be
that as it may, it bears reiterating that the RH Law is a mere compilation and enhancement of the prior existing
contraceptive and reproductive health laws, but with coercive measures (italics in the original, emphasis
supplied).
How these will be harmonized remains to
be seen. Ultimately, the RH Law will be judged by its effects.
April 20, 2014
(The complete text of the Supreme Court decision on the RH Law, including the concurring and dissenting opinions, may be viewed at or downloaded from the site http://sc.judiciary.gov.ph/microsite/rhlaw/)
