RH: No case, Carpio shows

Lawyers seeking to invalidate the Reproductive Health Act bogged down in the first Supreme Court hearing on July 9 after failing to argue jurisdiction and misstating doctrine.

Former Sen. Francisco Tatad opened with a triple gamble. He framed the law as “imposing population control through state-mandated contraception.” He argued that it installed the government as official provider of contraception, which conflicts with its constitutional duty to protect the “sanctity of family life,” the “right of spouses to found a family according to their religious convictions” and the “life of the unborn from conception.” He thus hinged the anti-RH case solely on proving contraception violates the “life of the unborn.”

Tatad tripled the bet, arguing that the RH Act violates international law by preventing births and causing genocide, and that Congress failed to render truth and justice in passing the law. “Are there some things that cannot be legalized?” he quoted Pope Emeritus Benedict XVI. In minutes, he tripled his burden with two extreme positions extraneous to the constitutional debate.

The first speaker, Ma. Concepcion Noche, stumbled twice before even speaking. First, the Court asked her to establish jurisdiction but she ignored this key issue, on which the recent US same-sex marriage decisions turned. Justices are unelected and may only act in “actual controversies” lest they usurp legislative power. Opposers at the Court and media pundits stressed that petitions were brought even before the law was implemented, making these premature and grounding these in speculation instead of fact.

Second, Noche’s claim was much narrower than what her rhetoric suggested. She argued that the Constitution protects life from fertilization but some contraceptives prevent the fertilized ovum’s implantation in the uterus, which she considers abortion. The narrow claim cannot cover all RH Act drugs, undercutting her broad attack on a still unimplemented law. (She barely discussed the right to health, alleging in a sentence that abortifacients also cause cancer.)

Floundering under most questions, Noche was knocked out by Senior Associate Justice Antonio Carpio on the jurisdiction issue she ignored. He asked whether she objected to the RH Act’s use only of drugs that do not prevent implantation (precluding the need to decide whether life begins at conception or implantation). She did not. Carpio asked if she objected to the law’s use only of nonabortifacient devices. She did not. He pointed out that she thus had no case over which the Court should take jurisdiction.

Noche insisted that, regardless of the law’s text, which she appeared to have no disagreement with, Carpio should take “judicial notice” that some drugs are abortifacient. He sprang his coup de grace: This request admits the case was premature. Carpio, and Justices Mariano del Castillo and Marvic Leonen, reminded Noche that evidence regarding abortifacients should be presented to the Food and Drug Administration, not the Court which is not a “trier of facts” (a ground to decline jurisdiction).

Noche’s all-or-nothing wager on abortifacients hamstrung her even before Carpio’s knockout punch. She admitted to Justice Presbitero Velasco and others that she is not objecting to condoms and other contraceptives that prevent fertilization, thus conceding that the law is valid at least in the context of condoms and weakening her blanket attack. She also tied this wager to her reenactment of congressional debates on when life begins, and insisted that the constitutional commissioners did not intend to allow Congress to define this. Carpio responded that the framers intended only to preclude the termination of pregnancies and never discussed conception’s meaning.

Noche unnecessarily took several extreme positions. Chief Justice Ma. Lourdes Sereno asked if a lowly clerk of court who had several children and felt another pregnancy might endanger her life would violate the Constitution if she used birth control to preserve her health. Noche replied yes. Sereno gave pointed examples ranging from her impeachment if she suggested birth control to such a clerk to whether Filipino women have been violating the Constitution since 1987. Noche even presented the unborn as having the most fundamental constitutional right. Sereno made her read the entire paragraph aloud: “[The State] shall equally protect the life of the mother and the life of the unborn….”

Justice Diosdado Peralta asked how Filipinos understood the word “conception,” and Noche gave a jaw-dropping reply: “I don’t think there’s a need to further consult the people on the meaning of the Constitution.” Peralta rebuked her, reminding her that it was the people who ratified the Constitution. Finally, Noche also asked Carpio to take judicial notice of medical journals which allegedly establish that life begins at fertilization. Carpio replied that several justices reviewed these and found medical opinion to be mixed, adding: “So if it is not settled in the medical profession, how do you expect us to rule?” Noche could only repeat her claim that constitutional-commission deliberations decided the issue (again, these are not a source of law).

Noche was unprepared for questions and, toward the end, simply fell into awkward silence when grilled by Carpio. Sereno also called her attention to noticeably long pauses during Sereno’s queries. Noche clearly misstated basic doctrine; she repeatedly pushed her central “legal basis” that the constitutional-commission deliberations determined that protection of life from the moment of conception means from the moment of fertilization—even after Peralta and Leonen reminded her that these deliberations are not binding law because the people ratified the Constitution, not its authors. When Leonen asked about “facial challenge,” the doctrine on general attack of a law, Noche was unfamiliar with it. Many times, she unresponsively repeated her speech, and Sereno at one point said, “I know your position, but you have not answered my question.”

Surprisingly, Noche claimed to Justice Lucas Bersamin that she was unfamiliar with spermicides. She also faltered when Leonen walked her through certain jurisdictional doctrines, highlighting he needed to satisfy his conscience that he was exercising legal, and not political, judgment.

Noche’s emotional tone distracted. At one point, she said RH Act author Rep. Edcel Lagman “conveniently redefined and reengineered” medical definitions to hold that life begins at implantation. She ended her speech passionately: “[The unborn] cannot even utter a word, or cry, or scream, or beg. … I now plead, your Honors, let the voice of the unborn be heard in the august halls of this supreme tribunal. Let their voice be yours.”

Her sole progress was having several justices agree with or be open to her argument that conception means fertilization, but Carpio already demonstrated the issue’s irrelevance. Bersamin drew laughter when he noted that Noche’s name is “Concepcion.” Small comfort given that she left jurisdiction—and thus her case—in grave doubt.

Oscar Franklin Tan (facebook.com/OscarFranklinTan, Twitter @oscarfbtan) teaches constitutional law at the University of the East.