Questions, questions

The first day of oral arguments at the Supreme Court, on the multiple petitions to declare the controversial Reproductive Health Law unconstitutional, turned out to be very instructive. The biggest lesson of all: Supreme Court justices are only too aware of the limits of their role.

The arguments began on a hysterical note, with former senator Francisco Tatad, one of the 15 petitioners, equating the Responsible Parenthood and Reproductive Health Act of 2012 with genocide. Fortunately, such shameless, overheated and ultimately empty rhetoric did not merit a closer look from the justices.

It was the first counsel for the petitioners, Concepcion Noche, who found herself the target of many of the justices’ pointed questions.

Senior Associate Justice Antonio Carpio, for instance, quizzed Noche on the fundamental lack of conflict between the actual text of the law and the Constitution’s prolife provisions. Since the law protects fertilization, “same as your position,” Carpio asked, “then why are you here?”

As we have argued in this space, the main arguments of the anti-RH Law advocates are based on a willful mistrust of the law’s actual text, the notion that it does not in fact mean what it plainly says.

Associate Justice Marvic Leonen joined Carpio in asserting the old axiom that the Court is not a trier of facts. Questioning Noche’s assumption that all the contraceptives referenced in the law are abortion-inducing, Leonen asked: “If we are to take a factual position that all contraceptives are abortifacient, don’t you think that it is irresponsible on our part?”

Carpio for his part demanded to know: “Where is the certification of the FDA (Food and Drug Administration)? You should have gone first to the FDA and test [the contraceptives]. After you have gone to the FDA, if you disagree, you come here but not now … You are jumping the gun.”

As we have argued before, the leading opponents of the RH Law have an interesting relationship to the facts: They argue as if their worst fears about the effects of the new law (population decline, increase in number of abortions, rampant immorality) are not speculation but hard fact. But in Tuesday’s oral arguments, we heard the justices chide the petitioners for asking the Court, in effect, to verify their facts for them.

The most resonant interventions from the bench involved the Supreme Court’s role in policymaking—or, rather, the lack thereof.

Carpio approached the issue from competence: “It is now a question of when does conception occur—the time of fertilization or upon the implantation in the walls of the uterus. So, you are asking the 15 members of this court, none of whom are doctors, to decide when conception happens?”

Leonen saw the issue in political terms, and characterized the underlying thrust of the petitioners’ argument as an invalid attempt to make the Court exercise a political power it does not have. “The petition against the RH Law gives lawmaking power from the Executive and Legislative to the Supreme Court.” He also said: The Court is “not a political organ but a court of law.”

Chief Justice Maria Lourdes Sereno at first phrased her reservations in similar policy terms: “Are we in a position to supplant Congress in a policy direction?” But her main concern was philosophical: Unless there was manifest showing of grave abuse of discretion, the Supreme Court must adhere to the legal philosophy of judicial restraint: “This Court may exercise judicial restraint unless you have to show us a way out. You have to provide us tools.”

At one point, she even told Noche pointblank: “By your responses, it is clear that you are grappling with your answers, which make me think this Court might not be the right venue [for this case].”

As we have argued previously, the charge of grave abuse of discretion, the only exception to the so-called political-question doctrine, cannot be credibly raised against the RH Law. Its passage took a decade and a half; innumerable attempts at compromise, even with the Catholic Church; and then finally a close conscience vote in Congress. Without the charge, the petitions against the law have absolutely nothing to stand on.

And yet those who support the new law cannot afford to be complacent. After all, the Supreme Court voted 10-5 to hear the petitions in the first place; many of the questions that stumped Noche came from those justices who voted against. It’s a long way from oral arguments to favorable judgment.