Feminist stereotypes coalesced into the sight of older men grilling a progressive woman lawyer, Sen. Pia Cayetano, on Day 4 (Aug. 13) of the Supreme Court oral arguments on the Reproductive Health Act. Cayetano not only injected powerful, concrete images into the abstract debates, she also trapped Justice Roberto Abad, who questioned each pro-RH advocate at length, in his own wordplay.
Abad disbelieved that the poor cannot access RH education. Cayetano, who sponsored the RH bill in the Senate, insisted on age-appropriate RH education in schools after encountering “substitute spouses.” In families where the mother works abroad, a daughter fills her role, sometimes even sleeping with the father. Abad opined RH education should be done in the home, by parents. Cayetano emphasized that 10 million Filipinos work abroad; will an absent mother or abusive father educate the daughter? Abad said to just provide for such special circumstances. An underestimated Cayetano countered that with Abad’s question, “I have proven that the law is constitutional in this one circumstance.”
Previously, Senior Associate Justice Antonio Carpio and Solicitor General Francis Jardeleza discussed how anti-RH petitioners may win only if they prove the RH Act is unconstitutional under all possible facts, as they chose to bring an abstract case before the law is implemented.
Cayetano used Abad’s pet term “IGM” against itself. She cited Manila, where former mayor Lito Atienza allowed only natural family planning and women who asked about RH were allegedly humiliated. Abad countered: “I-Google mo.” Cayetano quipped, “Depende kung may computer sila (That’s if they own a computer).” She added that a woman with eight children, half of whom cannot eat in the morning and half of whom cannot eat in the evening, cannot IGM.
Interestingly, she chose not to press two points. First, Abad referred to the constitutional right to privacy as “the right to be let alone.” The pro-RH might say he betrayed unfamiliarity. Arguing a right to informed choice, Jardeleza and Cayetano cited the context of making fundamental life decisions. The “let alone” formulation is from a completely different, irrelevant line of cases on private information, not “decisional privacy.”
Second, Justice Marvic Leonen asked about free speech, the last-ditch anti-RH argument. Cayetano did not stress the pro-RH position that medical consultation is action, not speech. A doctor should not evade malpractice sanctions by arguing free speech. She emphasized, however, that an objecting health worker who refers a patient to another worker but lectures on why contraception is evil might be unprofessional or unethical, but cannot be punished.
Their imagery proved complete contrasts. Abad argued 5,000 annual maternal deaths do not justify putting dangerous intrauterine devices in 23 million Filipino women of childbearing age. Cayetano emphasized that RH goes beyond sex and promotes women’s physical, mental and social health. In the hearing’s emotional peak, refuting Justice Teresita de Castro that contraceptives cannot be used for treatment, Cayetano shared that her fourth son was born with a chromosomal disorder, blind, deaf and with kidney tumors. He died nine months later. She could not bear to see another child and needed contraceptives to maintain emotional health. “Pregnancy is not an illness but it is a special condition that requires medical attention.” Abad asked Cayetano why the government competes with parents in forming character under the RH Act; she asked if it is a competition. On promiscuity, she argued that a seatbelt law does not make people drive fast. In the end, she asserted, “With all due respect, your understanding of the law is incorrect.”
Cayetano and House sponsor Edcel Lagman gave parallel speeches that upped the ante from Jardeleza’s, seeking to validate even the RH Act’s underlying policy goals. Cayetano said 15 maternal deaths per day is a mere statistic to petitioners. “No woman should die giving life.” She asked whether petitioners refuse to facilitate women’s right to health because it requires their empowerment or because they have such a low view of women, believing contraception will cause them to seek pleasurable sex with men other than their husbands.
Lagman recognized a “nexus between population and poverty.” He and Cayetano emphasized that if women decide to have less children, there will naturally be a reduction in population growth, but it is merely a result, not a goal. Both emphasized the RH Act is cost-effective compared to building more hospitals.
Abad claimed the RH Act declares contraceptives safe and non-abortifacient; Jardeleza’s written comment called this “a legislative finding of fact.” Lagman protested this is not a finding but a standard. Abad claimed the “finding” precludes doctors from challenging it.
Chief Justice Maria Lourdes Sereno scored the day’s knockout when Lagman conceded the law’s Section 23(e) was unintelligibly missing a word. Abad drew the most laughter, even from justices, when he proposed abstinence as most successful in preventing pregnancy. Lagman later fired back, “Promiscuity has antedated contraceptives.”
Finally, Justice Jose Perez admitted the questions were becoming repetitive and the hearings should end. He also asked everyone to admit the RH Act is really a population control measure.
Oscar Franklin Tan (facebook.com/OscarFranklinTan, Twitter @oscarfbtan) teaches constitutional law at the University of the East. His article “Articulating the Complete Philippine Right to Privacy” (82(4) Phil. L.J. 78 (2008)) has been cited in jurisprudence.