The single, most divisive issue in contemporary Philippine history—the passage of the Responsible Parenthood and Reproductive Health Act of 2012—had its sequel last week when the Supreme Court of the Philippines, following a number of challenges to the law, declared it “not unconstitutional”, save for eight items which it struck down.

The RH Law, as it is popularly known, took more than 13 years to pass through Congress, and was finally railroaded through by the newly-elected President Benigno Aquino. It does not legalise contraceptives in the Philippines; that happened decades ago. What’s new is that it makes contraception a public health service and birth control an official ideology.

It requires government health centres to hand out free contraceptives, public health workers to receive training in birth control, and mandates the teaching of sex education in schools. It is a decisive victory for the international population control movement over the family ethos of the largely Catholic Philippines.

The Court’s decision has been called President B.S. Aquino’s gift to President B. Obama, who is scheduled to visit the Philippines this month, in as much as the acceleration of its approval in Congress came after Aquino obtained a US$454 million grant from the Obama administration. Interestingly, all four Justices who consistently dissented from the majority over the sections struck down were appointed by Aquino to the bench.

Politics aside, the decision, penned by Associate Justice Jose Mendoza, is considered by many as a win-win solution.

A measure for population control, not health

The Justices acknowledged that the RH law, despite efforts to push it as a reproductive health law, is principally a population control measure—this is the “corpus” of the law, they said. The family planning methods in the law, they added, are “clearly geared towards the prevention of pregnancy” and for that reason, the “manifest underlying objective” of the law is “to reduce the number of births in the country.”

The Justices themselves seem to be alarmed that the population of the Philippines jumped to over 76 million in the year 2000 and 92 million a decade later, from just over 27 million in 1960, in spite of existing population control measures. Hence, the two other branches of government responsible for the passage of the law—Legislative and Executive—felt that the existing measures were not adequate.

They did note, however, that population control may not be beneficial for the country in the long run, given the problem of ageing populations in European and Asian countries which embarked on such a program generations ago. These countries are now trying to encourage higher fertility, and in spite of incentives, are failing.

Moreover, the Justices acknowledged that the country’s economy is being “propped up by remittances from our Overseas Filipino Workers” and that is because of the “ample supply of young able-bodied workers.” They asked, “What would happen if the country were to be weighed down by an ageing population and the smaller younger generations were not able to support them? This would be the situation if our total fertility rate would go below the replacement level of two (2) children per woman.”

The Court then washed its hands of the issue, invoking its policy of “non-interference in the wisdom of a law” but somehow hinting that the Legislature should do something to solve the apparent dilemma.

What makes the RH law different?

Answer: coercion. Rather than a revolutionary step, the court sees the RH law as a “mere compilation and enhancement of the existing contraceptive and reproductive health laws, but with coercive measures.” Some of the coercive apsects were struck down by the Court.

The Population Act and the Contraceptive Act, both enacted during the incumbency of President Ferdinand Marcos, and The Magna Carta of Women enacted under President Gloria Macapagal-Arroyo, all still effective, have been limited by two cornerstone principles: the “principle of no-abortion” and the “principle of non-coercion.” The Court declared that any family planning program now adopted should maintain these two principles intact. These principles will be discussed in detail below.

Contraceptives have been legal for decades, but are they safe?

As already noted, the Court agreed with the contention of the petitioners that the “central idea” of the RH Law is contraception (rather than health): “Indeed, remove the provisions that refer to contraception or are related to it and the RH Law loses its very foundation.” In fact, “the other positive provisions such as skilled birth attendance, maternal care including pre-and post-natal services, prevention and management of reproductive tract infections including HIV/AIDS are already provided for in the Magna Carta for Women.”

While the petitioners did not question the legality of the contraceptives made available under existing laws, they did question the safety of the drugs and devices made widely available by the new law.

On this point the Court affirmed that the Contraceptive Act already contains “adequate safeguards to ensure that only contraceptives that are safe are made available to the public.” The said Act has two requisites before any contraceptive drug or device could be sold, dispensed or distributed and such are still in effect according to the Court. The sale, dispensation and distribution shall be done by a “duly licensed drug store or pharmaceutical company” and “with the prescription of a qualified medical practitioner.”

The Court also said that it is the Philippines Food and Drug Administration, not Congress, that has the expertise to determine the safety of a contraceptive. This applies also to determining the mode of action of the contraceptive and whether it is abortifacient or not. 

However, the Justices underlined the importance of protecting public health by all means. To quote Justice De Castro’s separate opinion, “a heavy responsibility and burden are assumed by the government in supplying contraceptive drugs and devices, for it may be held accountable for any injury, illness or loss of life resulting from or incidental to their use.” Hence, she also declared that the law “cannot foreclose or predict the outcome” of scientific studies on the safety of these products in the future, paving the way for possible action against purchase and distribution by the government of products shown to be harmful.

Principle of no-abortion

The Constitution of the Philippines states: “The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception.”

But when does conception occur? When does life begin? The majority of the Justices considered this is a scientific and medical issue that should not be decided by them at that stage without a proper hearing of evidence. However, individual Justices were allowed to express their own views on the matter, and these were reflected in the main decision of the Court.

Using two statutory construction tools—“plain meaning” and “intent of the Framers”—Justice Mendoza convincingly illustrated that the word “conception” in the Constitutional provision refers to “fertilization”. He quoted Black’s Law Dictionary that defines “conception” as the “fecundation of the female ovum by the male spermatozoon resulting in human life capable of survival and maturation under normal conditions.”

On that basis Mendoza argued that “contraceptives that actually prevent the union of the male sperm and the female ovum, and those that similarly take action prior to fertilization should be deemed non-abortive, and thus, constitutionally permissible.”

Agreeing with this view, the Court threw out the submission of one defender of the RH law who held that life begins at implantation, saying this claim was “devoid of any legal or scientific mooring.” The decision notes that this theory does not pertain to the beginning of life but to the “viability” of the fetus”. It was “conceptualized only for convenience by those who had population control in mind” and  “[t]o adopt it would constitute textual infidelity not only to the RH Law but also to the Constitution.”

The Court decided that the RH Law is consistent with the Constitution in prohibiting abortifacients, defined as “any drug or device that induces abortion or the destruction of a fetus inside the mother’s womb or the prevention of the fertilized ovum to reach and be implanted in the mother’s womb upon determination of the FDA.” But it struck down a provision that inserted the qualifier “primarily” in the said definition in the law’s Implementing Rules and Regulations (IRR), saying that its authors “gravely abused their office when they redefined the meaning of abortifacient”, as this could pave the way for contraceptive drugs and devices that have secondary abortifacient effects. The Court also noted that the surreptitious insertion was an “ultra vires” act, that is, it was beyond the powers of authors of the IRR. All the Justices concurred in this save the youngest among them.

Principle of non-coercion: freedom of conscience has “primacy”

A major issue for the petitioners was conscientious objection. The RH Law, while respecting the conscientious objector’s right to oppose the implementation of the law, nevertheless imposes upon him or her the duty to refer a patient seeking RH services to another medical provider. The petitioners said such compulsion was a violation of religious beliefs about contraception and would make objectors complicit in the very act they objected to.

While clarifying that its jurisdiction extends only to “public and secular morality” and it is not within its competence to determine the morality of contraception, the Court affirmed that, in the case of a conflict between an individual’s religious belief and moral convictions on the one hand, and the State’s interest in promoting reproductive health services on the other, the religious freedom of public or private health providers should be accorded “primacy”.

In effect, the Court exempted any conscientious objector—even those working for the government—from complying with the mandates of the RH Law. Otherwise, it would violate the “principle of non-coercion” that is enshrined in the Constitutional right of every citizen to free exercise of religion. There is a lesson in that for President Obama, whose administration is currently trampling all over the conscience rights of Americans for the sake of free contraception.

Reconciliation sought by the Philippine Church

Both the Philippine bishops and large numbers of lay Catholics, either in groups or as individuals, have vigorously opposed the RH law, but following the Supreme Court’s green light, the President of the Catholic Bishops Conference, Archbishop Socrates Villegas, called a truce. In a reconciliatory statement, he encouraged Filipino Catholics to respect the Court’s decision.

His statement seems to exculpate the Justices for validating a law which commits the government to promote a massive contraception-fueled population control and sex-education program, because they decided based on current laws allowing the same. However, the Archbishop also said that the Church “must continue to teach what is right and moral” and her mission can continue “even with such unjust laws” because the Church has “a positive message to proclaim.” 

His reconciliatory stance, although acknowledging that the law is still unjust, does not sit well with some people who have been fighting the RH law and do not want anything less than a straight declaration of unconstitutionality.

Nevertheless, the Court’s decision has upheld the most critical principles—those outlawing abortion from the very beginning of human life, and the right of conscientious objection—leaving plenty of room in which to defend life and morality, albeit at the price of constant vigilance, persuasive and substantial argument, professional example, political activism and much else.

All that will be very familiar to President Obama, who has learned that controversy over birth control never goes away. He may congratulate his counterpart here in the Philippines when he arrives on April 28, but if he is honest he will tell him, “It’s only the beginning, Noy-Noy.”

Oliver Tuazon writes from Manila. He has a Masters degree in microbiology and currently reads law.

Note on “not unconstitutional”
In its official webpage, the Court explained the use of the double negative “not unconstitutional” as a formulation peculiar to constitutional adjudication.  The Court works on the presumption that the assailed law is constitutional and the burden of proving that it is unconstitutional falls on the petitioner.  As it happened in this case, the failure of the petitioners to prove otherwise compelled the Court to declare that the law is “not unconstitutional”.  Moreover, the use of the single positive “constitutional” connotes that the law is permanent and can never be declared unconstitutional.

Oliver M. Tuazon formerly taught biology and microbiology at the University of the Philippines.