Anti-RH case flops at the SC

If you are outraged at how Janet Lim-Napoles allegedly stole your P10 billion, you should be outraged if your democracy is stolen at the Supreme Court.

The petitions against the Responsible Parenthood and Reproductive Health Act of 2012 must be decided within the strict restrictions on unelected justices, especially given the perception that some are openly taking sides. One rolled out his own prepared slides before debating Solicitor General Francis Jardeleza at length.

The case, if decided on purely legal merits, is a flop. Each claim either has no constitutional basis or affects only a narrow portion of the law. Each step to nullify a collective act of our elected President and Congress was tepidly argued.

Jurisdiction: The first, most fundamental step is that there must be an “actual case” for the Court to take jurisdiction over. Petitioner Ma. Concepcion Noche ignored this. She instead spent the first hearing arguing that life begins when an egg is fertilized, not when it is implanted. She could not respond when Senior Associate Justice Antonio Carpio pointed out that the law prohibits drugs that prevent implantation, so there is no conflict. RH Act sponsor Rep. Edcel Lagman emphasized the law was worded to preempt fears of abortion, however defined.

The Court is not a trier of facts. Jardeleza emphasized that evaluating contraceptives is the Food and Drug Administration’s work, and anyone may challenge FDA findings in the courts later on. Justice Roberto Abad argued “judicial notice” and “common sense” that contraceptives are poison. Carpio, however, emphasized there can be no “judicial notice” of findings doctors themselves are debating.

Finally, given the lack of facts, challengers must show an unimplemented law is unconstitutional under all possible facts. They conceded that some contraceptives such as condoms are clearly not abortifacient. They also failed to address the Philippine doctrine that this “facial challenge” is allowed only in a free speech case.

Legal claims? Next, the petitioners’ claims must be legal, not political. One set of claims invokes the Bill of Rights. However, these are limited to narrow segments of the law, on medical consultations and mandatory RH education, and cannot justify scrapping it altogether.

A second set invokes the Constitution’s policy statements outside the Bill of Rights, which are not “self-executory” and must be implemented by law. Petitioners pounded on a right to health and a right of the unborn, but never argued why these are “self executory.” These are, in short, policies and not quite rights.

A third set of claims are simply not legal—the RH Act will promote abortion even though its text prohibits abortion, contraceptives are poison and population growth must not be restricted—and proved frustrating distractions. The most highfalutin’ claim was that the RH Act violates Philippine “ideals and aspirations.” Thus, Carpio and Justice Marvic Leonen emphasized the justices are not doctors, scientists or religious elders. Chief Justice Ma. Lourdes Sereno told Noche that her solution is to elect more legislators who think like her.

Grave abuse: Jardeleza properly emphasized that justices may not strike down the RH Act if they disagree with it. The Constitution requires “grave abuse of discretion” but the petitioners spent more time arguing that there is a Western plot to export a “contraception culture” of 12-year-olds with multiple sex partners.

The RH Act grants health workers a religious exemption from discussing some RH options (such as contraception) but requires them to refer the patient to another worker. The strongest objection is that this is complicity in sin under Catholic doctrine. The point was weakly made given the lack of concrete facts (co-sponsor Sen. Pia Cayetano emphasized that, in Congress, no medical association voiced interest in the RH Act’s religious exemptions) and the government’s apparent readiness to be tolerant (it claims only malicious advice is punished). Petitioner Luisito Liban also declined to contest Carpio’s position that only a law may grant special religious exemptions. Some petitioners raised religious objections by health workers, yet they were not health workers, another jurisdictional defect.

Health workers’ free speech was not taken seriously, and the oppositors have a strong point in arguing medical consultation is action, not speech. A doctor should not invoke free speech to evade malpractice charges. Cayetano emphasized an objecting health worker may say anything so long as he refers a patient to another worker. The “due process” claim of a parent to educate a child himself and refuse mandatory RH education, finally, is weak given no Department of Education materials or any other facts were presented.

Decisional privacy. The greatest victory for the Filipino woman’s “informed choice” will come if the Court explicitly recognizes the right to decisional privacy or the right to make fundamental life decisions. This right is well established in US decisions on family relationships and was stressed by Jardeleza and Cayetano, though it was not necessary to refute the anti-RH case.

The rhetoric of choice is the pro-RH side’s most powerful; who would deny women autonomy in this modern age?

Oscar Franklin Tan (@oscarfbtan) teaches Constitutional Law in the University of the East. Please comment: facebook.com/OscarFranklinTan.