When it finally came down, the Supreme Court decision on the controversial reproductive health case had something for both parties. (Altogether, there were 14 petitions to declare the Responsible Parenthood and Reproductive Health Law unconstitutional and two interventions to uphold its constitutionality.) Howard Calleja, counsel for some of the petitioners, characterized the decision in a TV interview thus: “I would say that it is a happy mix of both sides.”
We have nothing against court rulings or indeed any government policy that satisfies the demands of contesting parties; a “win-win” solution, to borrow the language of negotiation, is often the ideal outcome, rarely achieved. However, the decision declaring the RH Law “not unconstitutional,” but striking down eight parts of the law (and seven corresponding provisions in the law’s Implementing Rules and Regulations) for breaching the Constitution, leaves an important subset of already vulnerable mothers and babies exposed to real danger.
The ruling and the separate opinions (including Chief Justice Maria Lourdes Sereno’s dissenting and concurring opinion written entirely in Filipino, in what must be a first) have not yet been made available to the public. Going by the Court’s own detailed press statement, however, we think it is fair to describe the decision as win-win-lose.
The pros won because the law as a whole was upheld. Certain fundamental rights and duties were at stake: the right to reproductive health, above all, but also (to quote from the law itself) the right to make “free and informed decisions” about so-called lifestyle choices as well as the duty of the state to provide “ethical and medically safe, legal, accessible, affordable, non-abortifacient, effective and quality reproductive healthcare services and supplies” to those in need, especially “women, the poor, and the marginalized.”
The antis won, too, because four of the eight parts struck down as unconstitutional may be understood as violations of the principle of religious conscience that many of the petitioners invoked; in addition, three of the eight parts may be understood as an attack on the family, as many of the petitioners argued.
To cite one example: Section 23 (a)(2)(i) of the law prohibited any healthcare service provider from refusing to “perform legal and medically-safe reproductive health procedures” on any woman, on the ground that the spouse did not consent. The Court ruled this specific prohibition unconstitutional (in other words, either the spouse must consent to the procedure, too, or the provider cannot be sanctioned for refusing to provide the service); we can only presume, without the ponencia to consult, that a majority of justices saw this provision as undermining both the right of parents to raise a family on their own terms and the constitutional principle that the family is the basic unit of society.
One can argue with the Court’s reasoning, but in the case of the four parts declared unconstitutional for reasons of “religious beliefs,” we must not only argue but also raise our profoundest concerns.
To cite just one instance: A provision in Section 7, which in the Court’s press statement is summarized as requiring “private health facilities and non-maternity specialty hospitals and hospitals owned and operated by a religious group to refer patients, not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to another health facility which is conveniently accessible,” was declared unconstitutional. Again, pending the publication of the majority decision, we can only presume that religious conscience was successfully invoked here.
But consider what the provision actually states: It is the responsibility of these kinds of health facilities (private, non-maternity specialty, religious) merely to refer a woman seeking reproductive healthcare to “another health facility which is conveniently accessible.” That’s it. A simple referral. But the Court has found this light burden apparently too heavy for providers who refuse to provide healthcare service for religious reasons.
The Court is careful to note that the exception is only for situations that are not life-threatening. But pregnancy can be a delicate matter, and a routine checkup can turn into an emergency. Besides, how can someone sworn to save lives refuse to offer a mere referral? That’s an act of conscience? How sad to see the Court allow conscience to be defined in its narrowest, least helpful, sense.