Condoms by doctor’s prescription

IN A bizarre way, the Ayala Alabang barangay’s hard-line measure against reproductive health has actually done the pro-RH advocates a big favor.

Before, from a constitutional law standpoint, the pro-RH lobby had a dual burden. One, they had to establish that reproductive liberty is part of the “penumbral right of privacy and repose” protected under the due process clause, our “right to be let alone” within the marital bedroom. And two, they had to explain that the principle of “social justice” calls on government to ensure that poor Filipino couples have access to the contraceptives that they will need “to found a family in accordance with their religious convictions and the demands of responsible parenthood.” In effect, they had to overcome the Catholic majority’s claim to veto government expenditure inconsistent with their religious dogma.

With the help of the Ayala Alabang measure, pro-RH groups are released from that second burden. No need for the social justice rationale. The Alabang folk do not need free condoms. Indeed if you speak of redistributive justice, they’re the guys we need redistribution from.

With their help, we can finally discuss reproductive rights solely as a privacy issue. In other words, the Alabang barangay council has delivered to us, on a silver platter, a factual situation where we can debate the core issue of reproductive choice in its purest form. Contrast this with the RH bill pending in Congress. We hear the familiar argument: why should the Catholics’ tax money be used to pay for poor people’s condoms? With the Alabang ordinance, that argument is obsolesced at least for now. The Alabang couples will presumably buy condoms with their own money, on their own time, for use in their own marital bedrooms—and even that, Alabang’s Protection of the Unborn Child Ordinance of 2011 would deter.

The Alabang ordinance is defective in many ways. The barangay council arrogates unto itself a power that belongs to Congress and to expert agencies in the Executive Branch. It is fundamental that local government units possess only the delegated power to make law. That delegation was made by Congress under the Local Government Code of 1991 (RA 7160), but it doesn’t empower a barangay council to perform acts reserved to specialized agencies of government. The ordinance already defines “abortifacients,” yet that definition is still pending before Congress in the proposed RH law that is scheduled for plenary debates any time now. Worse, its list of abortifacients includes drugs and devices already certified as safe the Department of Health’s Food and Drug Administration (AO 50A s.2011) and the World Health Organization.

Moreover, the barangay council purports merely to implement a clause in the Pharmacy Act (RA 5921, 1969) that in order to buy “substances and devices … capable of provoking abortion or preventing conception,” we would need a medical prescription and list our names in “a separate register book for abortives and anti-conceptionals.”

For now let me just focus on the argument that this is not a total prohibition, as indeed the ordinance calls it a “regulated act.” That is bad enough. In other words, whereas before you could simply buy your condom at the cashier while pretending to buy Juicy Fruit gum, now the Alabang ordinance would have you register your name for all to see what kind of condoms you prefer and how many you need, say, every week. Unless the government can demonstrate some compelling interest in knowing what goes on in the marital bedroom—and I cannot for the life of me imagine what that interest can be, other than voyeurism—this requirement amounts to what is called an “undue burden” on the exercise of a liberty. In other words, sure it’s not prohibited to use condoms but we’ll make it extremely embarrassing for you to do so.

That is why the US Supreme Court has framed the issue as the protection not of sexual liberty but of the privacy of married couples. “We deal with a right of privacy older than the Bill of Rights…. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.”

The Alabang ordinance starts by painstakingly affirming its commitment to the “family as a basic autonomous social institution.” Yet it violates that very autonomy by intruding into the intimate relations between husband and wife. “If the right of privacy means anything, [it means that we should] be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

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Next week, Friday, March 11, 2-4 p.m., I will deliver the 3rd Centennial Lecture for the UP College of Law on the topic “The Spirit and the Law: Laïcité and Explicit Religiosity in the Public Sphere.” Randy David of UP’s Sociology Department and fellow Inquirer columnist, Fr. Ranhilo Aquino of the San Beda Graduate School of Law, and professor Oscar Ferrer of the College of Social Work and Community Development will be the discussants. Our Church-and-State clause draws heavily from American constitutional doctrine, which insulates the life of the faith within the sphere of privacy. Historically in the Philippines, however, faith has always been in the public sphere, either as an instrument of colonization, of pacification, of vote-getting, or of liberation. What gives? The public is most welcome.

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