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Legislating Condoms and Other Contraceptives: A Philippine Constitutional Law Perspective

Mickey Ingles, Ateneo de Manila University College of Law

The 1987 Philippine Constitution entrenches interesting provisions that reflect Filipino values. For example, it mandates that the State must protect the life of the unborn child and protect the family as the basic social institution. These two commands are rooted in the country’s deep Catholic tradition and its family-oriented culture.

In 2012, the Philippine Congress passed a law that struck deep into these Filipino values and traditions. The law sought to legislate on reproductive health and contraceptives. The law caused uproar from the Catholic Church and raised various constitutional questions.

In 2014, the Philippine Supreme Court ruled in Imbong v. Executive Secretary Ochoa[1] where, using a rights-based approach, it answered novel constitutional issues raised by the new law – the constitutional prohibition of abortion vis-à-vis the legality of contraceptives, the right of conscientious objectors against the State interest of population control, and the right of privacy of the family vis-à-vis State-sponsored reproductive health measures. As the country seeks to curb poverty and population growth, the implications of Imbong are far-reaching and will undoubtedly be felt for decades to come.

Imbong and the controversial law that led to it are discussed below.

A Brief History of the Responsible Parenthood and Reproductive Health Act

On December 21, 2012, President Benigno Aquino III signed House Bill No. 4244 and Senate Bill No. 2865 (popularly known as the RH Bill) into law as Republic Act No. 10354 or the Responsible Parenthood and Reproductive Health Act of 2012 (RH Law).[2] He placed his imprimatur on the RH Bill without pomp and fanfare, away from the prying eyes of the media who reported the monumental event only a week after. The unusual simplicity in how President Aquino approved the bill seemed like an anticlimactic end to one of the most heated and controversial laws in Philippine history.

The path that the RH Bill trod before reaching the table of President Aquino was a long and treacherous one that divided the country for more than a decade. The earliest version of the bill was first filed in 1999.[3] For 13 years, the RH Bill stumbled and sputtered, clinging on to dear life as impassioned arguments for and against it echoed in the halls of the Philippine Congress.

Closely tied to the uproar caused by the RH Bill was the country’s deep Catholic tradition. The staunchest rival of the RH Bill was the country’s oldest institution – the Catholic Church. The Catholic Bishops’ Conference of the Philippines (CBCP) warned that the RH Bill’s provisions on the distribution of contraceptives would lead to legalizing abortion and promiscuity among Filipinos.[4]

Inevitably, lines were drawn on the sand; either you were “pro-RH” or “anti-RH.” Residents hung banners on their houses, proclaiming they were “Pro-Life and Anti-RH Bill,” while cars zoomed around Manila with bumper stickers proudly shouting “RH Now!” A pro-RH advocate was convicted for “offending religious feelings” after protesting inside the Manila Cathedral during a Catholic service, likening the priests in attendance (the Papal Nuncio no less) to a corrupt Spanish friar from Jose Rizal’s novel Noli Me Tangere.[5] The CBCP even hung the possibility of excommunication over President Aquino’s head if he acted favorably on the bill.[6]

It was amidst this furor that President Aquino gave the RH Bill his stamp of approval. As expected, petitions questioning the constitutionality of the RH Law were filed in the Supreme Court not long after.

The RH Law in a Nutshell

Simply put, the RH Law was enacted as the possible answer to the country’s problems of poverty and overpopulation, the close relationship of which Congress recognized and sought to address. The RH Law was by no means the first Philippine law that regulated contraceptives; however, it was the most comprehensive, mandating that the resources of the State be used to raise reproductive health awareness and curb the country’s staggering population growth.

The RH Law tasked, among others, public health facilities to provide a “full range of modern family planning methods” to the poor and marginalized,[7] the Department of Health to procure and distribute family planning supplies (including contraceptives) throughout the country,[8] and the Department of Education to formulate a curriculum for reproductive health education classes to be used by public schools.[9]

In order to balance religious sentiments, the RH Law provided certain exceptions for conscientious objectors. For example, hospitals owned and operated by religious groups need not provide family planning methods if it offends their religious beliefs, provided they refer the person seeking advice to another health facility.[10] Moreover, while refusal to extend reproductive health care services carried the threat of imprisonment, conscientious objectors were exempted from doing so, again with the proviso that they must refer patients to another health facility.[11] (For brevity, these two conditions will be collectively referred to as the “duty to refer.”)

Imbong v. Executive Secretary Ochoa[12]

The RH Law and its corresponding Implementing Rules and Regulations (IRR) were rife with constitutional issues and it did not take long for eleven petitions seeking its unconstitutionality were filed in the Supreme Court. The petitioners were an interesting mix of educational institutions, seminarians, lawyers, doctors, parents acting as citizens, parents acting for their minor children, and even citizens acting on behalf of the generations unborn.

Their arguments against the law were as diverse as the petitioners’ backgrounds and covered almost every right enshrined in the Philippine Constitution. They claimed it violated the right to life of the unborn, the right to health, the right to religious freedom, and free speech. Some argued it violated the equal protection of laws and due process. Others maintained it infringed upon academic freedom and violated the right to privacy of the family, of the woman, of the man, of the child. Some even claimed the RH Law was akin to slavery and violated natural law.

After publicized oral arguments and months of deliberation, the Supreme Court, sitting en banc in the chilly city of Baguio, promulgated Imbong v. Excecutive Secretary Ochoa on April 8, 2014. Justice Jose Catral Mendoza penned the decision for the majority.  The Court found that the RH Law was “not unconstitutional” save for a few provisions.[13]

The meat of the controversy revolved around the following rights: the right to life, the freedom of religion, and the right to privacy and the family. Each right is discussed below.

Right to Life and Protection of the Unborn

Section 12, Article II of the 1987 Philippine Constitution declares that the State shall “equally protect the life of the mother and the life of the unborn from conception.” The framers enshrined this protection as a reaction to Roe v. Wade[14] and to ensure that “no pro-abortion laws” can ever be passed by Congress or allowed by the Supreme Court. In fact, the Philippine Revised Penal Code criminalizes abortion, whether committed intentionally or unintentionally.[15]

The petitioners assailed the RH Law, claiming that it violated the Constitutional protection for the life of the unborn by allowed access to abortifacients, essentially legalizing abortion. The RH Law defined abortifacients as “any drug or device that induces abortion or the destruction of a fetus inside the mother’s womb or the prevention of the fertilized ovum to reach and be implanted in the mother’s womb upon determination of the FDA.”[16]

While the RH Law were replete with provisions expressly prohibiting the use of abortifacients, the petitioners argued that the definition of abortifacients under the law allowed the destruction of the fertilized ovum before its implantation in the uterus. In essence, they claimed that the law provided a loophole, allowing the fertilized ovum to be destroyed, as the definition only prohibited the prevention (and not the destruction) of the fertilized ovum from attaching to the uterus.

Thus, the issue boiled down to when the life of the unborn begins, as this becomes the starting point of the Constitutional protection. Curiously, Justice Mendoza answered this question by not answering it at all, saying:

Majority of the Members of the Court are of the position that the question of when life begins is a scientific and medical issue that should not be decided, at this stage, without proper hearing and evidence. During the deliberation, however, it was agreed upon that the individual members of the Court could express their own views of the matter.

However, after a textual review of the Constitution and analyzing the plain meaning of the word “conception,” Justice Mendoza concluded that conception is reckoned from fertilization and, in his “strong view,” that life begins from fertilization. This conclusion was in accord with the intent of the framers. The Constitutional deliberations showed that the framers intended the Constitutional protection to begin upon conception which begins from fertilization, or in simpler terms, “when the egg meets the sperm.” The Constitution proscribed the destruction of the fertilized egg in any stage of its development and considered such destruction as abortion. Hence, contraceptives that prevent the egg and the sperm from meeting (such as condoms and vasectomies) were constitutionally permissible.

Under this premise, the Court ruled that the definition of abortifacients under the RH Law agreed with the Constitution. As the RH Law prohibited any drug or device that “induces abortion,” then the fertilized egg – even before it attached to the uterus – remained protected, as mandated by the Constitution.

The Court, however, nullified, the IRR which defined abortifacients as any drug or devices that “primarily induces abortion.”[17] The Court noted that the use of the qualifier “primarily” implied that “a contraceptive will only be considered an ‘abortifacient’ if its sole known effect is abortion.”[18]

The extensive discussion by Justice Mendoza and the strict interpretation which struck down the IRR highlighted the Court’s thrust to uphold the “principle of no abortion” enshrined in the Constitution.

Freedom of Religion

Section 5, Article III of the Philippine Constitution states that “[n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.”

The petitioners claimed the RH Law violated religious freedom in two ways.

First, the petitioners argued that the RH Law violated the non-establishment clause by promoting the use of contraceptives, contrary to their religious beliefs. The Court dispensed with this argument quickly, saying that the establishment clause also “limits what religious sects can or cannot do with the government” and that the State was not precluded to pursue a legitimate secular objective such as population control. The Court, in what can be seen as a tongue-in-cheek response, quoted the Bible, saying that the separation of Church and State “demands that one render unto Caesar the things that are Caesar’s and unto God the things that are God’s.”

Second, the petitioners claimed that while the RH Law provided exceptions for conscientious objectors, the free exercise clause was still violated by the conscientious objectors’ duty to refer. The RH Law imposed the duty to refer as a condition for physicians, hospitals owned by religious groups, and health care providers who seek exemption from the law. The petitioners argued that this duty to refer amounted to “requiring the conscientious objector to cooperate with the very thing he refuses to do” which was providing reproductive health care services against their religious convictions.

In tackling the issue, the Court used the compelling state interest test, recognizing that the exercise of religious freedom was a fundamental right. In a previous decision, the Court had already ruled that in conflicts between the free exercise clause and the State, the doctrine of benevolent neutrality was to be upheld, allowing exceptions and accommodation to conscientious objectors from the burdens of state action.[19]

The Court found that the duty to refer immediately violated the rights of the conscientious objector by demanding from him an act that goes against his very conscience. In her concurring opinion, Justice Leonardo-de Castro stated that the imposition of a duty as a condition for conscientious objection was in itself a restriction of the conscientious objector’s religious freedom. There was no compelling state interest that would justify the intrusion of the State and demand the conscientious objector’s compliance. As such, the Court deemed the duty to refer unconstitutional.

The Court did, however, recognize an exception. In life-threatening cases that require emergency procedures, the conscientious objector may not refuse his services as the State has a compelling interest to save the life of a mother or her child.

The Family and Right to Privacy

The Philippine Constitution recognizes the family as “the foundation of the nation”[20] and protects marriage as an “inviolable social institution.”[21] The Constitution further demands that the State defend “the right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood.”[22]

With this mind, petitioners singled out two provisions, claiming these were detrimental to the family and marriage.

First was the provision that prohibited the refusal of health care providers to perform reproductive health procedures on the ground of lack of spousal consent.[23] In essence, the RH Law allowed one spouse to undergo procedures such as tubal ligation or vasectomies, even without the consent of the other spouse.

On this point, the Court agreed with the petitioners. It stated that reproductive health procedures, “by their very nature,” required the “mutual consent and decision between the husband and the wife as they affect issues intimately related to the founding of the family.” The Court noted the danger in granting one spouse the sole and absolute discretion on his or her reproductive health, stating that such situation will lead to animosity between the couple and ultimately endanger the marriage and the family. Any decision involving reproductive health procedures was a private matter which “belongs to the couple, not just one of them.” Hence, the State could not, without a compelling state interest, interfere on this protected zone of marital privacy and allow a spouse to undergo a procedure without the consent of the other.

But what about situations wherein a spouse willfully withholds his or her consent for no valid reason? Or situations where there is conflict between the spouses? The Court simply stated, “the courts will decide.”

The second was a provision that allowed minors access to modern methods of family planning without parental consent when the minor was already a parent or has had a miscarriage.[24] The Court invalidated the provision and found that it was “an affront to the constitutional mandate to protect and strengthen the family as an inviolable social institution” and threatened the Filipino tradition of close family ties. Without a compelling State interest, the State could not simply step into the shoes of the parents. The Court noted that it was precisely in those situations where a minor needed the care and attention of her own parents.

Imbong showed that the Court will not sway in its duty to uphold the Constitution, no matter the powerful emotions evoked by such a divisive law like the RH Law. As the law has passed constitutional muster (save the invalidation of a few provisions), the focus now is whether the RH Law will actually serve its purpose and help solve the Philippines’ population problem. Only time will tell.

As of writing, the RH Law has yet to be implemented.

Suggested Citation: Mickey Ingles, Legislating Condoms and Other Contraceptives: A Philippine Constitutional Law Perspective, Int’l J. Const. L. Blog, Oct. 14, 2014, available at: http://www.iconnectblog.com/2014/10/legislating-condoms-and-other-contraceptives-a-philippine-constitutional-law-perspective

[1] G.R. No. 204819, April 8, 2014.

[2] ABS-CBN News, PNoy Signs RH Bill Into Law, December 28, 2012, available at http://www.abs-cbnnews.com/nation/12/28/12/pnoy-signs-rh-bill-law-sources (last accessed: October 7, 2014)

[3] Carmela Fonbuena, RH Law: The Long and Rough Road, December 30, 2012, available at http://www.rappler.com/newsbreak/18730-rh-law-the-long-and-rough-road (last accessed: October 7, 2014)

[4] GMA News Online, CBCP: RH Bill “Gift-wrapped” for Greater Crimes vs. Women, December 15, 2012, available at http://www.gmanetwork.com/news/story/286556/news/nation/cbcp-rh-bill-gift-wrapped-for-greater-crimes-vs-women (last accessed: October 7, 2014)

[5] Mark Meruenas, Manila Court Affirms Carlos Celdran Conviction in ‘Damason’ Case, September 5, 2013, available at http://www.gmanetwork.com/news/story/325135/news/nation/manila-court-affirms-carlos-celdran-conviction-in-damaso-case (last accessed: October 7, 2014)

[6]Andreo Calonzo and Jam Sisante, CBCP Head: Aquino Might Be Excommunicated for Contraceptive Stance, September 30, 2010, available at http://www.gmanetwork.com/news/story/202332/news/nation/cbcp-head-aquino-might-be-excommunicated-for-contraceptive-stance (last accessed: October 7, 2014).

[7] An Act Providing for a National Policy on Responsible Parenthood and Reproductive Health [RH Law], Republic Act No. 13054, Section 7 (2012).

[8] RH Law, Section 10.

[9] RH Law, Section 14.

[10] RH Law, Section 7.

[11] RH Law, Section 23 (a) (3).

[12] Unless otherwise indicated, citations in this section refer to the majority decision penned by Justice Mendoza in Imbong v. Executive Secretary, et. al, G.R. No. 204819, April 8, 2014.

[13] In total, eight provisions were struck down as unconstitutional. The 15 Supreme Court justices voted separately on these eight provisions. Rappler.com, a Philippine online social news network, has tabulated the voting which is available at http: http://www.rappler.com/nation/54946-supreme-court-rh-law-constitutional.

[14] Fr. Joaquin Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary 84 (2009 Edition).

[15] An Act Revising the Penal Code and Other Penal Laws [Revised Penal Code], Act No. 3815, Articles 256 – 259 (1932).

[16] RH Law, Section 4 (a).

[17]Implementing Rules and Regulation of the RH Law, Section 3.01 (a). Emphasis supplied.

[18] Emphasis supplied.

[19] Estrada v. Escritor, A.M. No. P-02-1651, August 4, 2003.

[20] Phil. Const. Art. XV, Section 1.

[21] Phil. Const. Art. XV, Section 2.

[22] Phil. Const. Art. XV, Section 3 (1).

[23] RH Law, Section 23 (a)(2)(i).

[24] RH Law, Section 7.

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Published on October 15, 2014
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