SC RH decision: first skirmish in long legal war

All purple-clad advocates defeated in the Supreme Court decision upholding the Reproductive Health Law are the most outrageous, most inane and most ideology-driven anti-RH arguments that have no place in rational debate, much less in our highest court of law. Given the inept anti-RH case, the pros must be alarmed at how a decisive majority of justices invalidated eight RH Law provisions barely even discussed in the petitions or oral arguments. And the majority includes the likes of Senior Associate Justice Antonio Carpio, who sternly demonstrated during the oral arguments that the petitioners could not identify which phrases of the law they objected to.

It is a welcome relief that the over-the-top anti-RH arguments have been thrown out. We cringed at the thought of a court giving credence to arguments invoking a decadent Western culture of promiscuity where 12-year-olds have multiple sex partners and claiming the RH Law promotes abortion despite having antiabortion statements in every other sentence. The first hearing became so painful that Chief Justice Maria Lourdes Sereno said the petitioners’ solution must be to elect enough people who think like them to have the law changed. Sen. Miriam Defensor-Santiago called the decision “a triumph of reason over superstition.”


The legal defeat has, one hopes, thoroughly discredited the extremist ideologues and intellectual zealots. One senses a softening of hardline anti-RH rhetoric. Archbishop Socrates Villegas, the new president of the Catholic Bishops Conference of the Philippines, said: “The [RH] law will be harmful for the spirituality of our country, but we respect those who share a different opinion and, more than that, we reach out to them. And let us be friends beyond the RH law.”

Catholics themselves must be the most relieved. Recall how Jesuit Fr. Joel Tabora decried “theological bullying” and “holier-than-thou discourse” while Fr. Joaquin Bernas criticized “Sunday Masses where the preachers subject the audience to prolonged attacks on the RH law and to threats of damnation.” These tactics, Bernas warned, may drive Catholics from the Catholic Church.


The pros should worry if moderates lead the next anti-RH offensives. If petitioners dismissed as fanatics from another planet could hold the RH Law in abeyance for over a year, imagine what principled, intelligent opponents could do. Indeed, nothing prevents further anti-RH litigation. A key pro-RH argument was that the antis’ case was premature. Because the law was not yet implemented, petitioners did not identify specific drugs as allegedly abortifacient or specific sex education materials as allegedly infringing on parents’ rights. Eventually, though, these arguments (some more sensible than others) will be ripe for court.

The RH decision shows that the justices are not only listening, they also make their own arguments against both sides. I previously wrote in “Special treatment for anti-RH Catholics?” (Opinion, 8/3/13) that anti-RH petitioners failed to highlight the stronger argument that Catholic health workers cannot be compelled to direct patients to other health workers. One might believe that advising a patient regarding contraception is sin and, in addition, directing him to another health worker who may discuss contraception is likewise sin. Religious freedom must be viewed from the believer’s perspective. The RH decision struck down precisely this part of the law despite petitioners’ failure to push for it.

The rest of the RH decision likewise protects “conscientious objectors.” Pro-RH advocates must agree in concept. If the RH Law facilitates informed choice, then the antis must be able to choose to opt out. But the pros must raise that the RH decision causes legal problems they were not given the chance to discuss.

For example, it must be correct to strike down punishment for a public officer who “refuses to support [RH] programs” or “hinders the full implementation of [an RH] program” because we do not punish people for their beliefs or impose religious tests to hold office. On the other hand, the government needs to implement its programs without undue disruption. Conscientious objections cannot be obnoxious vetoes, and we need to avoid scenarios such as Barangay Ayala Alabang passing an ordinance requiring doctor’s prescriptions for contraceptives, something Sen. Pia Cayetano decried as usurpation of the Food and Drug Administration’s powers. Our government also has the right to communicate a uniform message regarding RH and disseminate the kind of information it wants to without having this diluted by conscientious objection.

The high court also nullified how the RH Law allowed a married person or minor to receive RH services without the spouse’s or parents’ consent. This honors marriage and the family as our Constitution does, but, in case of disagreement, is not the right to make fundamental life decisions ultimately individual? And might a minor argue that one need not be of legal age to make certain decisions regarding reproductive health? Clearly, the RH decision is but the opening skirmish of a long legal war.

Incidentally, Sereno and Justice Marvic Leonen are yet again in a small minority in an important decision. It will be interesting to see their judicial philosophies unfold and judge whether they are philosophical outliers, trying to advance policy arguments as legal reasoning that their brethren are simply not accepting, or great dissenters ahead of their time.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) cochairs the Philippine Bar Association Committee on Constitutional Law and teaches at the University of the East.


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TAGS: Antonio Carpio, Catholic Church, Justice Maria Lourdes Sereno, reproductive health law, RH law, Sen. Miriam Defensor-Santiago, Socrates villegas, Supreme Court
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