RH Law in the Supreme Court : When Opposing Sides Claim to Have Won, Who Really Lost Then?

Elpidio V. Peria
13 April 2014

The newspapers the day after the RH law decision of the Supreme Court was announced last 8 April 2014 showed mainly that the pro-RH and the anti-RH sides were rejoicing, having won their part of the debate. A copy of the Philippine Daily Inquirer dated 9 April 2014 quoted Lingayen-Dagupan Archbishop Socrates Villegas, president of the Catholic Bishops Conference of the Philippines as saying that the Supreme Court (SC) decision “truly watered down” Republic Act 10354, or the Responsible Parenthood and Reproductive Health Act of 2012.

In the same paper in a separate story, among others, the pro-RH camp’s former Health Secretary Esperanza Cabral, who is a convenor of the Purple Ribbon for Reproductive Health, was quoted as saying : “It is still a complete victory.”

With both sides claiming to have won their side of the case, does it mean all is fine and well in the implementation of the law, which will then have to necessarily follow from the declaration of the law as not unconstitutional, or is the anti-RH camp correct in saying the law has been “truly watered down” that as one Philippine Star columnist, Bobit Avila, said, it has become “toothless”?

It’s good that the Supreme Court already released through their website, the text of their ponencia, or written decision, the better for all interested to analyze who really won and lost in this case. For our part, we were able to read parts of the main decision written by Justice Jose Mendoza, and the eloquent, though not thoroughly and fully written in Fiipino, which would have made it fully impenetrable, opinion of Chief Justice Lourdes Sereno, and the terse concurring opinion of Justice Antonio Carpio and the brutally frank and blistering dissent of Justice Marvic Leonen who held there was no case or controversy for the Court to resolve as there are no actual living beings whose rights are already affected by the implementation of the law.

As what is already clear by now, the law is upheld, but some of its provisions were held unconstitutional, such as the following:

a) Those that deal with ACCESS TO FAMILY PLANNING (sec. 7);
b) Those that deal with PRO-BONO SERVICES FOR INDIGENT WOMEN (sec. 17);
c) Declaring as prohibited certain acts of a healthcare service provider, whether public or private who will:

1) knowingly withhold information or restrict the dissemination of such information, and/or intentionally provide incorrect information regarding programs and services on reproductive health including the right to informed choice and access to a fully range of legal, medically safe, non-abortifacient and effective family planning methods; (sec. 23[a][i])

2) refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the ground of lack of consent or authorization of the spouse in case of married persons; provided that in case of disagreement, the decision of the one undergoing the procedure shall prevail; (sec. 23[a][2][i])

3) refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the ground of lack of parental consent or that of the person exercising parental authority in case of abused minors; (sec. 23[a][2][ii])

4) refuse to extend quality health care services and information on account of the person’s marital status, gender, age, religious convictions, personal circumstances, or nature of work; and the person is not in an emergency condition or serious case as defined in Republic Act 8344, which penalizes hospitals and medical clinics to administer appropriate initial medical treatment and support in emergency and serious cases; (sec. 23[a][3]);

d) any public officer, elected or appointed, specifically charged with the duty to implement the provisions thereof, who, personally or through a subordinate, prohibits, or restricts the delivery of legal and medically-safe reproductive health care services, including family planning; or forces, coerces or induces any person to use such services; or refuses to allocate, approve or release any budget for reproductive health care services, or to support reproductive health programs; or shall do any act that hinders the full implementation of a reproductive health program as mandated by this Act; (sec. 23[b])

e) a provision in the implementing regulations relating to the adjective “primarily” in defining abortifacients and contraceptives (sec. 3.01[a] and 3.01[j], IRR-RH Act)

The nullified provisions giving access to family planning as well as the pro bono services to indigent groups are key provisions of the law, without them, it will be difficult to really make the more numerous poor families benefit from the other provisions of the law.

The main effect of the nullification of these prohibited acts means that these enumerated prohibited acts can now be done, without any consequence, and the said nullified provisions has spelled out how to carry out these acts just by a simple reading of them and actual execution by the conscientious objector.

When one examines sec. 23 from which most of the nullified provisions were derived, the only acts that the law still penalize are :

– any employer who shall suggest, require, unduly influence or cause any applicant for employment or an employee to submit himself/herself to sterilization, use any modern methods of family planning, or not use such methods as a condition for employment, continued employment, promotion or provision of non-employment benefits; further, pregnancy or the number of children shall not be a ground for non-hiring or termination from employment; (sec. 23[c])

– any person who shall falsify a Certificate of Compliance in sec. 15; (sec. 23[d])

– any pharmaceutical company, whether domestic or multinational, or its agents or distributors, which directly or indirectly colludes with government officials, whether appointed or elected, in the distribution, procurement and/or sale by the national government and LGUs of modern family planning supplies, products and devices.(sec. 23[e])

No matter how the pro-RH side will look at this in a positive light, these surviving provisions without the earlier provisions that were nullified will not be as useful and will instead be violative of the equal protection rights of the employer since all these acts that are not supposed to be done by the employer will eventually be referred to the public or private healthcare service provider, but the conscientious objector among these providers will not be prosecuted but the employer will be penalized under sec. 23{c).

Likewise, the falsification of a Certificate of Compliance has become a useless provision because a conscientious objector in a local family planning office can refuse to provide adequate instructions and procedure on responsible parenthood, family planning, breastfeeding and infant nutrition and what then will the Certificate contain, there is nothing to falsify in this instance; or this may even result to fake Certificates of Compliance where the couple-to-be-married procures a Certificate of Compliance and yet no such instruction or information will be received in case the one placed in the local family planning office is a conscientious objector.

Even the pharmaceutical company penalized in sec. 23[e] is also placed in the same situation as the employer since the colluding conscientious objector in the LGU will not be so penalized as a result of the declaration of unconstitutionality of the provision concerning local executives, so who then is placed in a better situation?

What about the remaining provisions of the law? When one looks at the remnants of the law, notwithstanding the happy faces of the pro-RH crowd in the newspaper, what remains are the following:
– provision of health care facilities (sec. 6)
– maternal death review and fetal and infant death review (sec. 8);
– procurement and distribution of family planning supplies (sec. 10);
– integration of responsible parenthood and family planning component in anti-poverty program (sec. 11);
– mobile health care service (sec. 13);
– age- and development-appropriate reproductive health education (sec.14)
– capacity-building of barangay health workers (sec. 16);
– sexual and reproductive health programs for persons with disabilities (sec.18)
– public awareness (sec. 20) and reporting requirements (sec. 21)

When these remaining facilities, services and information mandated by the law are closely scrutinized, they will likewise be subject to the beliefs of the conscientious objectors from the ranks of the public or private healthcare facility provider and the medical health professional and the local officials whose acts of sabotage supposedly prohibited by the law will not be stopped now.

Given the strong hold of Roman Catholicism in the country and the strongly-held religious beliefs of most of the petitioners who wanted to nullify the entire RH law, and this strong belief can also be found in most government offices especially in local governments in rural areas, where oftentimes masses or other forms of religious ceremonies are held, the future of the RH Law is not certain.

From this discussion, it is clear, the loser here is the State which is supposed to be, in accordance with the non-establishment clause of the Constitution, for all religions and is not supposed to privilege any religious group from another.

Justice Leonen, in his dissent, also mentioned that the woman, whose body is the one who will undergo the procedure in one of the nullified provisions and is now subjected to the whim of her husband, is another loser in this case, along with the indigent women who will not be able to fully able of the services relating to family planning and other pro-bono services provided by the RH law.

Even UP Law Dean Raul Pangalangan in a 2008 law journal article (Philippine Law Journal, vol. 82) warned about the transplantation of US constitutional doctrines on church and state in a non-pluralist and non-libertarian state such as the Philippines as it will lead to the entrenchment and hegemony of the dominant religious group, which, in the Philippines’s case, is the Roman Catholic Church, where back during the time of the 2008 paper, around 81% of all Filipinos are Catholics.

It is also ironic how the Supreme Court may have inadvertently stretched the rights of the conscientious objector because said right, when it was first articulated in art. 8 (3)(c)(ii) of the International Covenant on Civil and Political Rights, it was a right against involuntary servitude especially those who are forced to render military service. With this broadening of the application of this right of the conscientious objector beyond military service and now it is being applied to reproductive health, who knows where else may the conscientious objector assert this right?

The pro-RH side, notwithstanding the threat of destabilizing the seemingly stable supermajority of justices who are in favor of upholding the constitutionality of the RH law, should file a Motion for Reconsideration of this decision, if only to salvage what is left of the law and define the limits of the rights of the conscientious objector if not to condition its assertion  vis-à-vis the secular goals of the law and if they do not succeed, then at least they should be ready to fight to preserve the rights of the State and the woman, who are the ones who actually lost in this case, in a separate case.


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