Gov’t sticks to precarious strategy for RH Law

The government’s line of defense in the oral arguments on the constitutionality of the Reproductive Health Law hardly addresses the issues presented thus far by the Supreme Court justices themselves.

As if taking his cue from just three justices seemingly reluctant to decide on the RH Law, Solicitor General Francis Jardeleza centered his arguments on a precarious proposition that, in so many words, suggest that it is not for the Supreme Court to interfere in what both chambers of Congress have deliberated on for 14 years. Never mind if the measure ended in being railroaded by Malacañang-backed lawmakers, and the secrecy that surrounded its signing into law by President Aquino.

Chief Justice Maria Lourdes Sereno and Justices Antonio Carpio and Marvic Leonen have consistently proffered that it may not be right for the Supreme Court to review the work of Congress with the RH Law, yet more of the justices have shown more interest and diligence in poring over the issues.

On Day 2 of the oral arguments (July 23), the justices affirmed there were no scientific questions the Court could not take judicial notice of, on the harmful effects of contraceptives. They also recognized what anti-RH activists have been saying all along about the overpopulation myth, and yes, even the “social cost” and threats to the moral order.

Justice Roberto Abad was thorough in his research and came well-equipped with information on issues he had merely inquired about on the first day. He explained how he had learned from simple study that contraceptives do not stop at preventing pregnancy but have a secondary effect of aborting a fertilized ovum if it fails in its first action. “I’ve never read a drug insert with as many risks to health as this,” Abad said, referring to the accompanying literature of a known brand of birth control pills.

When he confronted Jardeleza with these questions, the solicitor general deadpanned with the same tactic: It’s for the Food and Drug Administration to figure out safety issues, but Congress had merely done its job. His much-quoted line ignoring the cancerous effects of hormonal contraceptives actually fell short on substance: “When it suits your honor, you quote the WHO, but when it doesn’t suit you, you attack the WHO.” It was a fine display of courtroom savvy when pushed into a corner, but it did not answer the question. So, are hormonal contraceptives cancerous as declared by the World Health Organization, or what?

Abad’s presentation on the health risks of known brands of contraceptives was graphic as it was chilling. “If a fetus develops, abortion kills it before it is delivered alive by its mother,” he said at one point.

He gave a litany of findings by the International Union Against Cancer, American Health Association, Mayo Clinic, and most recently, WHO through its International Agency for Research on Cancer, that contraceptives increase a woman’s risk of cervical, breast, and liver cancer.

Earlier, Luisito Liban pointed out that Bayer had earmarked $1 billion to settle some 4,000 valid claims resulting from ill effects of birth control pills approved by the US FDA. This effectively disputes Justice Leonen’s suggestion, echoed by Jardeleza, that since the FDA has yet to give its opinion on the safety of contraceptives, perhaps everyone should just wait. In essence, Jardeleza is asking the Supreme Court to join Congress and Malacañang and wash its hands of the issue, ignore the health risks and potential abortions, and put all its trust in a purportedly foolproof FDA. But Abad said the RH Law has “arbitrarily and falsely declared hormonal contraceptives, IUDs and injectables to be safe” in Section 9, preempting the purported task of the FDA to determine safety.

Abad said: “Would not this law be constitutionally void for what it does not provide considering the state’s duty to protect and promote the right of women to health?”

Moreover, Jardeleza may not get enough justices to agree with him that the beginning of life is not an issue, since the answer to this paramount question decides whether government-funded contraceptives mandated by the RH Law result in chemical abortion, and thus violate the right to life and right to health guaranteed by the Constitution. And Justice Teresita de Castro has declared: “When life begins is no longer a religious matter. The Constitution has elevated this to a constitutional principle that life begins at conception.”

For his part, Justice Jose Mendoza allowed Liban to expound on the folly of population control, how the growth rate has slowed and continues to decline even without an RH Law. Justice Estela Bernabe raised the matter of how, in practical terms, medical practitioners who are Catholics will be forced to violate basic teachings of the Church, as well as violate freedom of speech when they are forced to give information on artificial birth control methods. Justice Jose Perez pointed out that the RH Law itself “renders empty the message of free choice.”

These issues are begging to be answered. They used to come from anti-RH advocates and were ridiculed by the measure’s supporters. What is significant is that it is the Supreme Court justices who are now asking these same questions. The RH supporters may be hurting; they have taken to attacking the person of Justice Abad in the social media.

On one side of the bench is an apparent washing of hands, with some justices insisting that the Supreme Court is not the right venue, or that they are incompetent to decide on the RH Law. This is what the solicitor general is banking on.

On the other side are justices who have done due diligence on the issues at hand, who are determined to get answers and who will not pass the buck.

Chet Espino is a convener of Families Against RH.