We’ve heard all these arguments before. The detour to the Supreme Court may be a necessary stage in the long struggle to turn the Responsible Parenthood and Reproductive Health Law into daily reality—but truth to tell, the case against RH policy being made at the ongoing oral arguments is a rehash of everything else that has been thrown at it. We really have heard all of these before.
The only difference is: Having lost the vote in both chambers of Congress, anti-RH advocates are repeating their arguments before the Court.
Those advocates include lawyer Concepcion Noche, who argued against the constitutionality of the RH Law in the first session of the oral arguments, on July 9, and lawyer Luisito Liban, who spearheaded the fight against the new law in the second session, on July 23. In the third session, on Aug. 6, the burden of arguing the anti-RH position fell on a sitting justice: Associate Justice Roberto Abad.
In particular, the questions Abad asked Solicitor General Francis Jardeleza advanced a telling, if all-too-familiar, position: RH kills.
Again and again, the Ateneo de Manila law graduate (1968) and University of Santo Tomas law dean (2008-2009) returned to the same RH-Law-violates-the-right-to-life argument. Indeed, that’s how he started his interpellation of Jardeleza, by presenting three tests of constitutionality of the right to life. This right, in his perspective, is the crux of the issue—because the only way the Supreme Court can invalidate the new law is to find that it offends that basic constitutional principle.
It would be next to impossible for the justices to hold that the tortuous passage of the controversial law, after a decade and a half in the legislative labyrinth, was a grave abuse of discretion, amounting to lack or excess of jurisdiction. That new category of the unconstitutional, an innovation of the 1986 Constitutional Commission, updated decades of jurisprudence on the so-called political question, raising the bar for judicial intervention.
As Chief Justice Maria Lourdes Sereno phrased it in the second session of the oral arguments: How can you attribute arbitrariness to a law that has been debated for 14 years?
So it’s the right to life provision that Abad focused on. (The quotations that follow are from the highly useful, cogently written Twitter account of the Supreme Court’s Public Information Office, which “live-tweeted” each of the first three sessions.)
Abad made the case for outlawing abortion. “Positive norms (right to life of unborn, right to health) could imply a negative right (abortion is illegal).”
He questioned whether the black letter of the law could be trusted: “The language of the law suggests that contraceptives as a class of medicine are non-abortifacient.” (His point, already raised before, is that some contraceptives are in fact abortifacient, and therefore the language of the law is dangerously misleading.)
He sought to undermine the pro-RH findings of the World Health Organization by asking Jardeleza: “Did you bother to find out if WHO is impartial on the issue of contraceptives?” (He also answered his own question: “WHO is working to promote family planning by producing evidence-based guidelines on safety and delivery of contraceptive methods.”)
He took aim at possible forms of market failure, in the contraceptives market. “Are we protected from manufacturers who would make misrepresentations?”
Not least, he offered a simple, sweeping conclusion: “We will be in big trouble if this law is declared constitutional.”
But the safeguards against abortion and the use of abortifacient contraceptives have already been integrated into the law—precisely because Abad’s arguments have been raised before. The answers to all of Abad’s questions have also been offered or proposed before—because his arguments are rehashed from years of often bitter debate.
We do not mean to suggest that Abad should not have asked his questions in the first place; that is his responsibility, as a member of the Court. We only wish to reiterate that, precisely because it took a decade and a half of relentless struggle before becoming law, the ground on which the RH Law case is being fought is not terra incognita.