No ‘gray areas’ in RH Law

Quietly, save for a festive observance by reproductive health supporters in Baguio, the country marked the first anniversary of the Supreme Court decision upholding the constitutionality of the Responsible Parenthood and Reproductive Health Law, certainly one of the more contentious and controversial recent pieces of legislation.

Joining the small group of jubilant RH supporters in Baguio was former Rep. Edcel Lagman, who for years led the grueling struggle to pass the bill in the House, a struggle he described as “epic,” and then monitored the one-year “confrontation to surmount the constitutional challenge” at the Supreme Court.

True, as Lagman told his like-minded supporters in a bonfire-lit closing ceremony, the struggle is still not over, as the people still need to be vigilant and ensure the “full and expeditious implementation” of the law.

Also true, said Lagman, is that the declaration of the Supreme Court was not an unmitigated success, as the tribunal found eight provisions of the RH Law “not constitutional,” together with their counterpart provisions in the implementing rules and regulations (RH-IRR).

But overall, stressed Lagman, “the overwhelming majority of the provisions are constitutional” and the “struck-down provisions are peripheral to the core and essence of the RH Law.”

Spared from what Lagman described as the “judicial scalpel” were the essential provisions of the law, including the government’s mandate to give marginalized sectors free access to family planning information, services and supplies; inclusion in the Philippine Drug Formulary of hormonal contraceptives, IUDs, injectables, and other “safe, legal, non-abortifacient and effective family planning devices and supplies” as determined by the Food and Drug Administration; the authority of the Department of Health to procure family planning supplies for distribution to local government units; the mandate of LGUs to assist in the implementation of the RH Law; the mandate for schools, public and private, to provide reproductive health education for adolescents; and the need for public awareness programs and massive nationwide multimedia campaigns on the promotion and protection of reproductive health.

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The “voided” sections of the RH Law touch on the following areas: the protection of the right of conscientious objectors; the requirement of parental and spousal consent before the provision of certain RH services; the removal of any culpability on the part of local officials who refuse to implement or support the RH Law; and the removal of culpability from any public officer who fails or refuses to disseminate information on reproductive health and related matters.

From this lay person’s point of view, what the Supreme Court achieved in its voiding of these provisions was to uphold the right of “private” medical practitioners and public officials to exercise their conscience over the conscience and welfare of ordinary people, and the subsuming of a woman’s and a young person’s rights and conscience (for I’m sure the majority of those whose right to family planning services will be curtailed are women and young people) to her spouse and to her parents.

But even then, said Lagman, RH supporters and seekers of RH services need not fret.

Conscientious objection, for one, “whether genuine or contrived, is an exception to general compliance by healthcare service providers, the vast majority of whom avidly support the RH Law.”

Likewise with public officials who would not support or hinder the implementation of the RH Law, said Lagman, since they “constitute a small minority” while a majority of public officials would uphold their calling to observe and comply with the law.

And in cases when one spouse seeks to undergo a ligation or vasectomy, Lagman argued that spouses usually agree to have one of them undergo these procedures when they both feel they already have too many children or for health reasons, so that “consequently, disagreement between spouses is the exception.”

But what of young people who want to use contraceptives or undergo a family planning procedure but are afraid of letting their parents find out? “Nonelective surgical procedures requiring parental consent are exceptional,” said Lagman. Besides, “there is no sanction or penalty for nonobservance of the Supreme Court’s nullification … because the very penalty imposed by the law has been removed.”

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“Cong” Edcel, as he is known by the RH community, posited that the struck-down provisions “will not create ‘gray areas’ in the implementation of the RH Law if the voided provisions are strictly construed or interpreted and the declaration of unconstitutionality is limited to the precise sections or provisions specifically pointed out by the Supreme Court.”

Lagman said it was precisely “not to delay further the implementation of the RH Law” that he, like the Solicitor General, did not file a motion for reconsideration on the nullity of the provisions.

While he has personal reservations on the wisdom, and indeed legality, of part of the Supreme Court’s decision, the wisest recourse, he said, is “to enact the necessary remedial legislation to temper or reverse the effects of the voiding of some provisions.” Bills must be filed in Congress, he noted, but only at the appropriate time, “which is not yet now.”

Indeed, a year has passed since the declaration of the constitutionality of the RH Law. Already, the DOH is gearing up for full national implementation, and the “ground war” to bring reproductive health services, information and education to everyone in all corners of the country is only just starting.