Win or lose?

This newspaper’s headline was “SC ruling on RH: Win-win,” based apparently on the reactions of both the pros and antis (“jubilation”) to the Supreme Court’s decision on the Reproductive Health Law, or to the announcement of the decision as read by Teddy Te. No copy of the decision was released then, only a reading of its dispositive portion. The pros thought they won because the high court gave its imprimatur to everything except eight items. The antis were jubilant because of the eight items, six of which had to do with alleged infringements on religious freedom; one dealing with the need to obtain spousal consent; and the eighth dealing with the need for parental consent. The striking down of these items rendered the law “toothless,” according to the antis, specifically Lito David of the Pro-Life Foundation.

I decided to wait until I could read the decision myself, penned by Associate Justice Jose Catral Mendoza (I am given to understand his brother is a priest/bishop. Isn’t there a conflict-of-interest issue somewhere?), as well as the opinions written by nine justices, four of whom wrote separate concurring opinions, with another four writing concurring and dissenting opinions, and the fifth (Associate Justice Marvic Leonen) writing a “separate dissent.”

Well, I read them all, and here’s my take, for all it is worth: On the face of it, it looks like the pros won, because the government is now mandated to provide and distribute free RH services and supplies, including procurement of family planning supplies by the Department of Health for distribution to local government units. Plus they can provide age- and development-appropriate RH education to adolescents in all schools. Beth Pangalangan was quoted as saying that “it is a historic step forward for all women in the Philippines….”

Hold on, though. The distribution of those services and supplies is to be done by healthcare providers and government officials and employees, right? Well, the Court’s decision essentially says that these people can refuse to support the programs, on religious or conscientious-objector grounds, and even refuse to refer their patients to others who may have no such qualms. And what’s more, because they are exercising religious freedom, they are not to be punished.

Remember Joey Lina (governor of Laguna), and Lito Atienza (mayor of Manila), who refused to fund any kind of RH program and got away with it. It is precisely to prevent that from happening again that the RH Law had those provisions penalizing those who might be Linas and Atienzas. But the Court has struck these down.

Women are now going to decide their reproductive fate? Not so. The Court struck that down, too. They cannot undergo RH procedures without spousal consent. All to protect the family.

Even something as simple as the requirement of 48 hours of pro bono (free) RH services as a condition for PhilHealth accreditation was also struck down by the Court, in the name of religious freedom.

And who says there will be sex education in schools? To the best of my understanding, the ponente Mendoza said discussing the issue was premature for “the Court to rule on its constitutionality or validity.”

The dissenters in the decision, especially Chief Justice Meilou Sereno (who has to be congratulated for writing her decision in Filipino—it’s about time someone did, although I agonized trying to understand it, but I am a dying breed) and Associate Justices Bienvenido Reyes and Estela Bernabe, ripped to shreds the arguments of the majority on some or all of the eight items.

Associate Justice Antonio Carpio’s contribution (in three pages) to the written debate was to point out that the Court is simply not competent to decide the issue of when life begins (Mendoza did). It is a scientific and medical issue, which even the scientific and medical community has not solved.

But I reserve my last observations for Leonen’s 90-page dissent (the ponencia was 104 pages).

What drew my attention was his inclusion of some Church history (submitted by intervenors) on the Catholic Church’s “changing and inconsistent position regarding contraceptives, and the notion that every sexual act must be for a procreative purpose.”

Did you know that the notion denouncing sex without procreative intent cannot be found in the old or new testament? Apparently, it was not originally Christian, but borrowed from pagan Greek Stoics in the second century.

Also, the Pontifical Commission for the Study of Population, Family and Births created by Pope Paul VI in 1963 to recommend whether modern contraceptive methods could be permitted, concluded by a vote of 9 of the 12 bishops, 15 of the 19 theologians, and 30 of the 35 nonepiscopal members that “no natural law proscribed nonreproductive sex and no doctrinal, scientific, medical, social or other reason existed for the Church to continue prohibiting the use of modern birth control.” The Pope disregarded these findings (on the ground that there was disagreement!), which started a quiet revolt (licit dissent) among the bishops of the Netherlands, Austria, Brazil, Mexico, West Germany, Japan, France, Scandinavia, Switzerland and the United States. “But for the first time in memory, the bishops’ statements, while showing respect for the encyclical, told believers that they could act apart from it if they felt bound by conscience to do so.”

All these leading to Leonen’s position that the Court “cannot make any judicial determination to declare the Church’s position on contraceptives and sex.” In his view, the RH Law in its entirety should be fully implemented.

Read his dissent.