Productive debate (II)

In last week’s column, we identified potential contentious issues in the ongoing debate on the reproductive health bill. A major issue focuses on whether the state can prohibit private organizations from counseling and providing assistance to individuals on their family planning choices. A related issue deals with the use of government resources to fund certain activities connected with reproductive health. In this regard, let us look at how the US Supreme Court has dealt with these issues.

In 1965, the State of Connecticut passed a law forbidding the use of contraceptives (and made it a criminal offense) as well as the aiding or counseling of others in their use. Defendants who were the officers of the local planned parenthood association counseled married persons in the use of contraceptives and were convicted of violating the statute. 

This, in essence, were the facts in the famous case of Griswold v. Connecticut where the US Supreme Court, by a vote of 7-2, declared the law unconstitutional. The majority opinion ruled that while the Bill of Rights does not expressly provide for a right to privacy, several of the rights taken together create a “penumbra” or “zone” that protects an individual’s privacy interest. And even if no contraceptive users were charged in the case, it still concluded that the right of married persons to use contraceptives fell within this penumbra.

While the opinion did not specify exactly how the ban on contraceptives violated this penumbra of privacy, it would seem that the Court was concerned with the privacy implications in proving the commission of a crime. Thus the Court queried: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” It answered itself saying that “the very idea is repulsive to the notions of privacy surrounding the marriage relationship.” 

But more importantly to the issue at hand, the Court ruled that an individual’s right to use birth control methods is “fundamental.” So whether a person is married or single, he or she has a fundamental interest in contraception, and the state can only impair such right if it satisfies the “strict scrutiny test”. To pass this test, the objective being pursued by the government must be compelling (not just legitimate) and the means chosen by the government must be necessary to achieve that compelling end. In practice, the latter requirement means that there are no less restrictive means that would accomplish the government’s objective just as well. In reality, a law that is subjected to the strict scrutiny test will almost certainly be declared unconstitutional.

Hence, on the subsequent 1977 case of Carey v. Population Services, the Court struck down a New York law prohibiting: 1) anyone but a licensed pharmacist from distributing contraceptives to persons over 16; and 2) the sale or distribution of contraceptives persons under 16, except by prescription. 

So in summary, and legal terminologies aside, this means that it would be very difficult for the state to pass a law that would prohibit private organizations from providing information (or the contraceptives themselves) to individuals. The practical implication as well of the ruling is that since a fundamental right is involved, an individual can probably demand from the State that it provide artificial contraceptives to honor that person’s choice if he or she cannot afford to purchase them. Next week, let me briefly describe the US jurisprudence regarding the pro-life vs. pro-choice debate.   

* * *

Freak win: One centavo this week is given to the 2010 US Major League Baseball World Series champions, the San Francisco Giants. Since this was a team mainly made up of “journeymen” from other ball clubs, it was not one of the early favorites to win. But with guts and tenacity, they captured the National League pennant by beating the more seasoned Atlanta Braves and the 2008 champion, the Philadelphia Phillies. And in defeating the American League contender, the Texas Rangers, they proved the baseball adage that superior pitching trumps superior hitting. I am certain that our millions of kababayans in the bay area are thrilled by their victory.

And speaking of superior pitching, one centavo is also given to the Giant’s ace starter, Tim Lincecum. Nicknamed “the Freak” by his manager because of his long, shaggy hair and thin, lanky frame, Lincecum would not be the prototype of a strike out pitcher. Yet, looks can be deceiving as this Fil-Am is a two time Cy Young awardee.

Lincecum’s mother Rebecca (Becky) Asis is a Filipina who grew up in the US. Her father Balleriano was born in Honolulu and mother Philomena Marasigan in Stockton, California. Balleriano’s father Genaro was born in Mindanao and mother Albert Alcoy in Cebu. Philomena’s father Leoncio was born in Batangas and mother Anastasia Dominguez in Siquijor.

Indeed this 170 pound, 5’10 right hander should be a role model not only for Fil-Ams but for Filipinos in general as he has proven that one does not have to be “big and strong” to be able to excel in the world arena. 

* * *

Bonds that tie us: And speaking of another Fil-Am achiever, one centavo is given to lawyer Loida Nicolas-Lewis for proposing the creation of “Bayan Ko” retail bonds that would cater to Filipinos working abroad, particularly those in North America. This presents a “win-win” situation as our brothers and sisters abroad who wish to further help the government will enjoy higher interest rates as well (given that the rates in the US are at an all time low). There may be several legal and regulatory hoops that the bond issuance would need to go through especially if the securities are offered in the United States but I am certain that our usual investment bankers and international lawyers will be up to the task of figuring them out. 

* * *

Greetings from Manila: Sticking to the practice of greeting only those whose birthdays fall on a Saturday, let me greet Nido Petroleum CEO, Jocot de Dios, now based in Perth, Western Australia.

* * *

 “Mountaintops inspire leaders but valleys mature them.” — Winston Churchill

* * *

E-mail: [email protected]