A ligated RH Law?

It’s easy to see why many in the prolife community are celebrating the Supreme Court decision upholding Republic Act No. 10354 or the Reproductive Health Law as “not unconstitutional.” The eight items struck down by the high court as unconstitutional are after all the very provisions objected to by the anti-RH camp.

“We may have lost the battle but we have won the war” was a recurring post in the Facebook page of Families Against RH Law.

Most of the provisions rejected by an overwhelming majority of the justices have to do with penalties imposed on private medical institutions and practitioners who refuse to support RH programs because of personal values or religious convictions. A law without penal clauses is “toothless,” as Lito David of Pro-life Philippines puts it.

But what gives the prolife camp much reason to celebrate is the rejection of Section 3.01 of the RH Law’s Implementing Rules and Regulations (IRRs). The justices believe that the use of the qualifier “primarily” in classifying the different types of contraceptives as abortifacient contravenes Section 12, Article II of the Constitution, on the protection of the life of the mother and the life of the unborn from conception. This has far-reaching implications.

“Abortifacient refers to any drug or device that  primarily  induces abortion,” according to the IRRs of the RH Law, and 14 of the 15 justices of the high court won’t accept it. It is actually a most hideous qualifier given the nature of artificial contraceptives, and the justices saw through it. Hormonal pills, just to cite an example, are not foolproof. There is a failure rate, and when the woman does get pregnant even while on the pill, the drug creates a hostile environment in the woman’s womb that kills the fertilized ovum, the baby.

By now the justices have a working knowledge of how the various contraceptives work to prevent pregnancy, having received evidence during the oral arguments and having done their own research. They are now aware of the harmful effects of these drugs on the women and babies that the law claims to protect, and the Constitution is clear on this.

Raymond Bandril of Filipinos for Life says it will be very “problematic” for the government’s implementation of the RH Law as envisioned when hormonal contraceptives and IUDs are

classified as abortifacients. Dr. Rey Echavez of the group Doctors for Life opines that the rejection of Section 3.01 will necessarily exclude these harmful items from the government’s menu of contraceptives it can dispense to the public.

The Supreme Court decision effectively places a burden on the implementers of the law to prove that what they are giving out are drugs and devices not just primarily intended to induce abortion, but that these do not have a secondary effect of aborting the fertilized ovum as well.

Dr. Ricardo Boncan of Defensores Fidei shares his colleagues’ opinion, and says this leaves the government with only condoms to distribute.

Pro-life president Eric Manalang says: “The purple group jumps up and down over the rejection by the [high court] of eight strategic provisions. I think inside, why? A couple of days after [the decision], my take on this is, the RH crowd still doesn’t know the issues.”

The full implications of the Supreme Court’s declaration of Section 3.01 as unconstitutional may now well be the object of the prolife movement’s crusade.

Incidentally, it is interesting to see how the justices voted. Instead of the close fight anticipated by the prolife groups, it was an overwhelming majority vote against each of the eight provisions.

Yes, the high court could not be expected to declare an entire law passed by Congress as unconstitutional, but in three out of the eight provisions struck down (Sections 7a and 7b, and Section 23), only four justices—Chief Justice Maria Lourdes Sereno and Associate Justices Jose Reyes, Estela Perlas Bernabe and Marvic Leonen voted “not unconstitutional” while the rest said the three provisions violated the Constitution. These three provisions were mostly about the punitive aspect of the RH Law.

Associate Justice Mariano del Castillo joined the four when it came to upholding Section 23(b), resulting in the biggest number of pro-RH votes for that item, but still for a losing 5-10 score.

Del Castillo and Bernabe left the pro-RH side when it came to Section 24, for a 3-12 drubbing. But in the voting for the most crucial Section 3.01, it was almost unanimous. Even Sereno and Reyes maintained that this provision violated the Constitution; Leonen was left by his lonesome upholding its constitutionality.

Without the eight provisions ruled by the high court as unconstitutional, RA 10354 would be left looking even more like a repeat—nay, a poor copy—of the Magna Carta for Women, an all-but-forgotten law that anti-RH advocates have always cited as the reason the RH Law was unnecessary in the first place. Minus the provision for contraceptives, the Magna Carta for Women that has been gathering dust provides for everything, and more, that the RH Law has to offer.

Boncan believes it is only right to ship

RA 10354 back to Congress “considering that major provisions were deemed unconstitutional.” He pointed out that the high court’s ruling on

Section 23 also opens questions on the parents’ right to decide if their children should attend the sex education classes contemplated in the

RH Law, if this goes against their beliefs.

Meanwhile, the prolife groups prefer to maintain their celebratory mood. As Echavez posted: “Yeah, it looks like this RH Law has been ligated.

Chet Espino is a convener of Families Against RH.