After a long wait, the verdict of the Supreme Court on the constitutionality of the Reproductive Health Law has been promulgated. It is a 106-page document exclusive of concurring and dissenting opinions. Not everyone will have the patience to read through it. But since I had been writing about the bill while it was being debated, I thought it might be useful for those interested if I were to break it down into a more easily accessible presentation.
The main issue in the case, of course, was the constitutionality of the law. A multiplicity of grounds for invalidation were brought to the Court by an army of opponents. The substantive objections to the law were: It was a violation of the right to life, the right to health and to protection against hazardous products, the right to religious freedom, right to equal protection of law, the right to free speech, the right to family privacy; of the rule on one subject/one bill; of natural law. And it usurped the autonomy of local governments and of the Autonomous Region in Muslim Mindanao; constituted mandatory sex education and involuntary servitude; and failed to overcome the void-for-vagueness challenge.
What did the Supreme Court say about these multiple grievous sins against the Constitution? I shall try to give the Court’s answer as briefly and simply as I can to the more important objections.
Right to life. When does life begin? There are two views on this. One says life begins at the fertilization of the maternal ovum, that is, when sperm and ovum meet. The other says life begins at the implantation of the fertilized ovum in the ovary. The Court accepted the view that life begins at fertilization. Thus any attempt to terminate a fertilized ovum even before it reaches the ovary is already abortion explicitly prohibited by the RH Law. Hence, there is no offense against a living being.
Right to protection against hazardous objects. This objection was focused mainly against artificial contraceptive. The assumption was that any method of preventing conception is abortive. But Section 9 of the law requires certification by the Food and Drug Administration that no contraceptive device should be abortive. Consistent with the constitutional policy on the sanctity of life, the Court says that it is not enough that a device is not “primarily” abortive to merit prohibition. The use of the qualifier “primarily” will pave the way for approval of contraceptives which may harm or destroy a fertilized ovum. For a device to be prohibited it is not enough that it is not “primarily” abortive. Even those which only secondarily cause abortion are prohibited.
Right to health. To ensure that the availability of contraceptives will not be hazardous to health, the law requires that only contraceptives that are safe are made available to the public. The law says that “It shall be unlawful for any person, partnership, or corporation, to sell, dispense or otherwise distribute whether for or without consideration, any contraceptive drug or device, unless such sale, dispensation or distribution is by a duly licensed drug store or pharmaceutical company with the prescription of a qualified medical practitioner.”
Religious freedom and nonestablishment of religion. It is no secret that Filipinos hold different religious beliefs about the morality of contraception and the use of contraceptive devices. There are those who, because of their religious education and background, sincerely believe that contraceptives, whether abortifacient or not, are evil.
But must the Court constrain a legislative act that is not in conformity with the moral or religious belief of some? The Court’s answer to this question is the benevolent neutrality theory: “The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the government’s favored form of religion but to allow individuals and groups to exercise their religion without hindrance. The purpose of accommodation is to remove a burden on, or facilitate the exercise of, a person’s or institution’s religion. What is sought under the theory of accommodation is not a declaration of unconstitutionality of a facially neutral law, but an exemption from its application or its ‘burdensome effect,’ whether by the legislature or the courts.” It is not within the province of the Court to determine whether the use of contraceptives or one’s participation in the support of modern reproductive health measures is moral from a religious standpoint or whether the same is right or wrong according to one’s dogma or belief.
The Constitution limits what the government can do with religion. Conversely, it also limits what religious sects can or cannot do with the government. They can neither cause the government to adopt their particular doctrines as policy for everyone. To do so, in simple terms, would cause the State to adhere to a particular religion in violation of the nonestablishment clause. (To be continued)