RH Day 2: Referees throw punches

RH Day 2: Referees throw punches

Two strong anti-RH arguments were buried under misrepresented doctrine and justices’ seeming anti-RH speeches last Tuesday, Day 2 of the oral arguments on the Reproductive Health Act at the Supreme Court.

Day 1 was a dismal failure. Former Sen. Francisco “Kit” Tatad called the law genocide. Ma. Concepcion Noche declined to establish the Court’s jurisdiction, so multiple justices asked whether her political claims belonged in Congress. Her entire argument was that contraceptives cause abortion but was unable to respond when Senior Associate Justice Antonio Carpio asked her to specify the phrase she objects to given that the law prohibits abortifacients. There is no case to try if there is no objection.

Luisito Liban, senior partner of top firm SyCip Salazar whose head Rafael Morales was a prominent nominee for chief justice, opened Day 2 with the two most reasonable anti-RH claims. First, a Catholic health worker is forced to sin, in his view, when he is forced to refer a patient to another worker who may advise contraception. Second, mandatory sex education infringes on Catholic parents’ rights to raise their children.

Liban too weakly defended these. Carpio asked if marijuana may be used in a religious ceremony. Liban said “neutral” antidrug laws are valid, failing to raise retired Chief Justice Reynato Puno’s “benevolent accommodation” of religion. Justice Marvic Leonen argued he cannot prevent schools from teaching law because he wants to teach his daughter himself, and Liban declined to argue some parents may feel a school’s teaching conflicts with theirs. The lack of an “actual case” makes it difficult to visualize such tension. Justice Mariano del Castillo suggested that sanctions on health workers may be removed and parents may opt out of sex education, which Liban conceded.

Liban’s position was flawed. First, his two narrow claims do not support the broad chop suey attack—hardly all Catholics are health workers—and the premature challenge to the unimplemented RH Act means there are no facts.

Second, he misrepresented doctrine. He claimed that mandatory sex education in public but not private schools discriminates against public school students by burdening them with longer hours. Such a trivial discrimination claim was last seen when the Court nullified the proposed truth commission to investigate former President Gloria Macapagal-Arroyo’s administration because suspected corrupt officials from other administrations were excluded.

Carpio laughed and said many laws would be unconstitutional under Liban’s argument that the RH Act is nondiscriminatory only if it tries to cure all illnesses. Chief Justice Ma. Lourdes Sereno asked if Liban was truly serious in raising discrimination and advised him to focus on religious freedom.

Liban also invoked free speech, which does not cover the act of medical diagnosis. He argued that contraceptives cause everything from cancer to heart attack. He told Justice Presbitero Velasco he was expanding Noche’s stand to: All contraceptives are unconstitutional if distributed by the government for violation of the very abstract right to health. But he conceded to Carpio that the Court would likely not overrule Food and Drug Administration findings on contraceptives’ health risks for lack of medical competence.

He decried an aging population to Carpio because the Constitution upholds labor. His invocations degenerated to the point that Leonen asked him whether the Court has the power to police sex. He also claimed the poor are coerced to use contraceptives and that this is now a condition in the government’s Conditional Cash Transfer program, but conceded the RH Act prohibits coercion by public officers and employers and that CCT is not in issue.

Justices’ seeming anti-RH speeches further diluted early points. Justice Roberto Abad opened questioning by asking whether prevention of implantation is abortion, which Liban did not discuss and Carpio noted was not in issue. He implied that contraceptives permanently impair women’s ovaries and cause physical deformities in babies. He most controversially raised “judicial notice”—the Court “needs only common sense, not medical evidence”—and read out the side effects detailed in an oral contraceptive.

Each year, evidence classes criticize how the Court declared former President Joseph Estrada resigned based on newspaper reports after the 2001 Edsa II rallies. Leonen read out another ominous list—enclosed with paracetamol—and noted all medicines have side effects.

Justice Jose Mendoza asked Liban if overpopulation is a “compelling interest.” Liban digressed into human capital’s role in the Industrial Revolution. Justice Estela Perlas-Bernabe asked what the “compelling state interest” is in enabling the poor to have sex day and night. Justice Arturo Brion asked, “Is promiscuity a part of our culture?” and “Is the RH Law … consistent with ‘matuwid na daan?’” then asked Liban to produce statistical data on the RH Act’s “hidden costs.” Liban spoke of an assault by “Western-sponsored culture” where 12-year-olds engage in “multiple sex.” Carried away, he addressed Brion as “Lord.”

Many other emotional exchanges ranged from Liban labeling “a piece of legislation that has gone berserk” that “trumps the right of future generations to be conceived,” to Sereno criticizing him for outlining a “utopian society” to a Court that is “not the decision-maker on resource allocation.” Pro-RH Twitter underestimated Liban, but if this is as far as a SyCip senior partner can take the legal arguments, only divine intervention can strike down the RH Act.

Oscar Franklin Tan (facebook.com/OscarFranklinTan, Twitter @oscarfbtan) teaches constitutional law at the University of the East.