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09:55 PM September 2nd, 2013

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By: Rina Jimenez-David, September 2nd, 2013 09:55 PM

The country has about two months (60 days) more to wait before the Supreme Court begins deliberations on the Reproductive Health Law. That is, if the justices are ready to render a verdict once both sides have submitted their memoranda, and the remaining issues are addressed to the Court’s satisfaction.

That means, observers noted, that the high tribunal would most likely not be ready to issue a verdict on the “constitutionality” of the RH Law until next year. There were even some who expressed hope that the Supreme Court would wait until after the retirement, on May 22, 2014, of Justice Roberto Abad. Abad, in the course of five hearings on the RH measure, has been a vociferous opponent of the law, accusing proponents of being “like Hitler” in his desire to wipe out the Jews of Europe, only in this case, the law, he claimed, is directed at cutting down the number of poor Filipinos. Throughout the oral arguments, Abad was leading the charge against those in favor of the law.

But he wasn’t alone. He was joined from time to time by other justices. On the last day of oral arguments, Justice Jose Perez questioned the government’s claim that the RH Law was not part of the State’s “demographic policy,” that is, to bring down the population growth rate by targeting the poor segments of society. When Senior State Solicitor Florin Hilbay, arguing in behalf of government, said the law pertained to the human rights of couples who could choose how many (or few) children they would have, Perez riposted: “Will not the success of family planning result in the lowering of population?”

When Hilbay replied that the law has not set any “demographic targets” and that it is aimed at the “level of the individual” who could space or size his or her family, Perez insisted: “Is it not the law’s objective to cut the population? Let’s admit the need to reduce the population of the poor!”

Well, at least he didn’t succeed in putting words in the mouth of the senior state solicitor!

* * *

ONE of the arguments presented by Hilbay is that the RH Law is “gender neutral,” that is, allowing both husband or wife to decide on whether and when the woman is to get pregnant, and how often.

An argument posited by petitioner Couples for Christ Foundation (CfC) was that the RH Law violates freedom of religion as it gives the wife “sole authority” to decide on matters of reproductive health, even if “the Catholic faith… gives the husband authority to decide in cases of marital deadlock.”

Argued Hilbay: “What the law recognizes is the constitutional right to liberty and privacy of either the husband or the wife… it is gender-neutral and therefore does not discriminate against the husband or the wife.”

Arguing that only the husband has “sole authority” to decide on matters related to the wife’s reproductive health, said Hilbay, “not only violates the liberty and privacy rights of women; it also violates the equal protection clause and the specific constitutional policy recognizing ‘the fundamental equality before the law of women and men.’”

He argued further: “What petitioner… wants is for men not only to have the right to undergo RH procedures such as vasectomy even without the knowledge of their wives but also the right to override the decision of their wives to have ligation. This is not only unfair; it is also unconstitutional. Such belief cannot be translated into public policy without violating the nonestablishment clause.”

* * *

FROM where I sat, I felt a shudder run down my spine. If the CfC petition is allowed to prevail, then our hard-won rights to decide our health and fates would be erased outright, with our husbands (or fathers) deciding whether, when, how often and by whom women are to get pregnant. A vision of women “barefoot and pregnant” loomed in my imagination.

Another member of the Court, Justice Teresita de Castro, came back time and again to the rights of doctors, nurses, midwives and other health caregivers in the light of the RH Law’s provisions penalizing those who would “knowingly” give erroneous information to patients regarding their reproductive health and/or rights.

“Who is to tell whether the information is correct or incorrect?” De Castro wanted to know. “What if a doctor, who is Catholic, sincerely believes a contraceptive or procedure would result in an abortion, is the doctor still obliged to refer the patient to another doctor who will provide that contraceptive or procedure?”

This was in relation to Hilbay’s contention that the provision—which affects only doctors employed by the government—requires doctors at the very least in the event of a conscientious objection to refer the patient to a colleague.

Hilbay said the proper judge of the quality of the information is the Department of Health’s Food and Drug Administration, but I wanted to hear from him a stronger assertion that scientific authorities the world over have long come to an agreement on the safety, efficacy and legality of many contraceptives and procedures. “It’s the science, Justice!” I wanted him to say.

* * *

But let’s take our licks where we can.

At the end of the session, Chief Justice Maria Lourdes Sereno had a string of questions for both Hilbay and Solicitor General Francis Jardeleza, mostly concerning faulty sentence construction and missing words in the law. This made me wonder whether there was such a thing as a “style committee” in the bicameral conference committee when conflicting language must be reconciled and made grammatical or at least logical.

I understand this resulted from the numerous amendments that legislators insisted upon toward the end of the House and Senate debates. That up to now the end to the decades-long debate surrounding RH is still far in the distance is cause for frustration.

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