RH oral arguments: what wasn’t reported

It’s all over but the voting for the 14 petitions at the Supreme Court questioning the constitutionality of the Reproductive Health Law—that is, if you believe media reports. With all the speculation going around, it doesn’t help that most media accounts have focused on how the first presenter, lawyer Concepcion Noche, was “rebuked” by the 15 justices. One account said the petitions faced dismissal because of the way Noche struggled through the four-and-a-half-hour ordeal. A law professor even wrote a postmortem for the anti-RH petitions, claiming they didn’t have a case.

But what really happened during the oral arguments on July 9? The following exchange, for instance, was never reported in the media:

Justice Roberto Abad: The Constitution, Section 12 Article 2, states that the state shall equally protect the life of the mother and the unborn from conception. This right to life belongs to the unborn, not the mother or the father. Did I exist when I was still in the egg as an egg alone?

Noche: Not yet, your honor.

Abad: But when the egg, when the ovum, is fertilized, is that the beginning of me?

Noche: Yes, your honor. That’s the beginning of you. The unique “you” that exists already at that point. The unique Justice Abad … not a justice yet then.

Abad: In 1987 before this (RH Law) somewhat changed the concept of conception, how did those who drafted the Constitution understand the meaning of conception?

Noche: Life begins at fertilization. It was only recently that that was redefined.

Abad: So in other words, all of us started as zygotes … and then developed into a human being. Conception means beginning, isn’t it? But it needs to be sustained to life by attaching itself to the uterus. And it’s not the business of my parents… It’s my right. If they violated my right, I would not have been born. As Justice Carpio says on this issue, if they believe that this law violates the right to life from the time of conception, that’s how we will decide it … on our understanding of when life begins.

Totally different picture. The issue is of course crucial, because the hormonal contraceptives to be funded in the billions by the RH Law are known abortifacients—they have a secondary action of harming the fertilized ovum when contraception fails. A recognition of the beginning of life at fertilization would render the RH Law unconstitutional.

To be sure, Noche agonized and showed signs of exhaustion. She was, after all, facing all 15 justices of the Supreme Court, but she stood her ground. At one point Justice Antonio Carpio called attention to her long pause, suggesting she had run out of answers. But Noche didn’t let it pass: “No, your honor, I paused because I was reading something.”

The rather tough approach by some justices notwithstanding, Noche’s arguments stood out in substance and even managed to get her interrogators to move on to another topic.

To Carpio’s position that the high court could not settle the issue of when life begins, Noche was firm that the Constitutional Commission was clear that conception referred to fertilization. To Chief Justice Lourdes Sereno’s suggestion that there were only a handful of ConCom members who maintained that belief, Noche said the Constitution was voted upon and ratified by the Filipino people.

In his turn, Justice Mariano Del Castillo remarked, “I concede that upon the meeting of the egg and the sperm there is life already. It should be protected.”

There were in fact more justices who believed there was no mystery as to the beginning of life. Justice Teresita de Castro was pragmatic: “Assuming that the woman is healthy and the egg has already been fertilized, is there anything that will prevent this fertilized egg from developing into a human being?”

To settle the matter, Justice Lucas Bersamin  told Noche to submit data on the beginning of life and the effects of hormonal contraceptives for the court to take judicial notice.

Del Castillo asked what Noche thought should be the government’s responsibility for adverse effects of contraceptives given to women by its health workers. Noche replied that the government must shoulder all expenses related to their treatment.

Justice Jose Perez offered the view that the beginning of life was not even the biggest issue in the RH debate. Taking off from the opening statement of former senator Francisco Tatad, Perez told Noche that what was “constitutionally objectionable” was “the fact that the government itself is putting in money in order to allow the prevention of fertilization.”

De Castro pursued the issue of Tatad’s main argument that the RH Law was nothing but a population control program disguised as a health measure. “There is a provision saying that there shall be no demographic or population targets… But in another provision there is a need to conduct studies to analyze demographic trends, including demographic dividends from sound population policies. It would seem that the law is intimately connected to population control.”

Abad said the RH Law was an exercise of police power. “We cannot outlaw the storms or the typhoons … but a healthy woman with a healthy ovum and eggs… We poison the egg to disable it from receiving the sperm. That’s unconstitutional, that’s improper use of police power.”

Finally, De Castro observed that the RH Law was targeting the poor and the marginalized. “It would seem under this law that the poor should not be allowed to multiply.”

No case? It’s time we extracted substance from the noise of this long-drawn-out debate. The buck stops with the Supreme Court.

Chet Espino is a convener of Families Against RH. The audio recording of the July 9 oral arguments is on YouTube (https://www.youtube.com/watch?v=j7ehdk126S4&feature=youtu.be).