RH ‘Pacific Rim’: Jardeleza duels Abad

Solicitor General Francis Jardeleza preempted justices’ recurring questions, going on the offense on Day 3 (Aug. 6) of the Reproductive Health Act oral arguments in the Supreme Court.

“The issue before this honorable court is not when life begins,” Jardeleza opened. He reiterated Senior Associate Justice Antonio Carpio on Day 1: The RH Act protects implantation of fertilized eggs and operates whether one believes life begins at fertilization or implantation. The constitutional commission was split on when life begins and did not address this, and instead made abortion unconstitutional.

He upped the ante, arguing the constitutional right to privacy or to control fundamental life decisions includes a right of access to contraception, instead of merely refuting petitioners. He emphasized the RH Act gives to poor women the options available to the more affluent, but they have the freedom “to enjoy and not to enjoy” rights, refuting allusions of coercion into a “contraception culture.”

Jardeleza pointed out that whether any of 59 available contraceptives induce abortion is a matter of fact for the Food and Drug Administration, but noted that pro-RH legislators presented the findings of the World Health Organization and 24 Filipino scientists in Congress, while the anti-RH presented practically no scientific evidence. He reiterated the issue as whether Congress passed the RH Act with reasonable basis, not whether it is correct and whether the Court should substitute its own thinking. He reiterated this each time he was invited to argue policy, reminding justices their disagreement does not invalidate the law. He argued the Court cannot take “judicial notice” of medical debates, refuting Justice Roberto Abad’s previous proposal to adopt “common sense” findings that contraceptives are poison.

He also noted the definition of “abortifacient” was inserted by anti-RH legislators—Senators Juan Ponce Enrile and Tito Sotto and Rep. Rufus Rodriguez—emphasizing the law represents democratic compromise the Court should not rewrite.

Finally, Jardeleza emphasized there is no “actual case” for the Court to take jurisdiction over regarding the unimplemented law. Carpio added that, because of their timing, petitioners must prove the law is unconstitutional under all possible facts, yet there is no possibility of abortion in condoms and many other contraceptives.

In a courtroom “Pacific Rim,” Abad emerged to duel Jardeleza. The former UST Law dean brought out prepared slides and initiated protracted word games that consumed much of the hearing. Is the RH Act about family planning? Jardeleza said it is about reproductive health and does not mention family planning. He exclaimed, “There is no such thing as an unborn child,” to correct Abad that the Constitution uses “unborn,” not “unborn child.” Abad raised a WHO hypothesis that contraceptives may cause abortion although there is no scientific evidence; Jardeleza reminded him that a hypothesis is a hypothetical statement. Abad argued the Constitution’s phrases on the right of the unborn to life and the right to health are “self-executory.” Jardeleza reiterated these phrases are outside the Bill of Rights, where freshman exams locate the self-executory rights.

Abad read out a label: may “impair implantation.” Jardeleza reiterated it is a question of fact for the FDA. “Safe” under the FDA never meant without side effects, and women must use drugs properly following “informed choice.” Abad countered: “We will be in big trouble if this law is declared constitutional,” arguing it makes a scientific declaration that contraceptives are safe.

Abad ended by likening the government to Hitler because it wants to reduce the poor’s numbers. With dignified outrage, Jardeleza said the government “takes very strong exception” to the allusion. Abad said it gives contraceptives that cause cancer. Jardeleza responded in a firm voice: “When it suits your honor, you quote the WHO. But when it doesn’t suit you, you attack the WHO.” The duel was abruptly ended by cheering from the gallery, then a gavel bang. (Lea Salonga tweeted this line as her favorite.)

Jardeleza later clarified to Justice Teresita Leonardo-de Castro that the RH Act is not against pregnancy but seeks to prevent unwanted pregnancies, which correlate with maternal deaths. He answered Justice Jose Perez that most unwanted pregnancies happen to be among the poor, whose access to contraception the government decided to subsidize without looking down on them. He responded to De Castro’s query on immorality among the unmarried: “An unwanted pregnancy is an unwanted pregnancy, and a maternal death is a maternal death whether or not the woman is married.”

Jardeleza was stumped in light moments. One was when Abad claimed Congress should have investigated WHO’s lack of impartiality because it exports a contraception culture, and asked, “If you want to get an impartial opinion on which television station in the Philippines is the best, would you ask Kris Aquino who works for ABS-CBN?” (He reminded Abad the petitioners themselves quoted WHO’s cancer research.) Another was when Carpio asked if he knew the heat method, or when a man’s testicles are heated because sperm cannot fertilize above a certain temperature.

Before Jardeleza, Luis Gana argued the RH Act violates the Autonomous Region in Muslim Mindanao’s autonomy. Gana fatally conceded to Chief Justice Maria Lourdes Sereno that he was not authorized by ARMM to represent it, the same jurisdictional defect that decided the US same-sex marriage case involving California.

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