Unclear and inconclusive

It is quite inaccurate to say that the Supreme Court (SC) upheld the constitutionality of the RH law. The SC spokesman did not say that categorically. He only announced that the RH law was “not unconstitutional.” It could have been clearer and more conclusive if the SC just declared it either constitutional or unconstitutional. In fact there are more provisions which have been declared unconstitutional than those declared valid and constitutional. The RH law (RA 10354) is therefore more unconstitutional than “not unconstitutional.” So the SC decision cannot be considered a “major “victory” for its proponents and supporters as they are now proudly claiming. Such stance only creates further controversy, division and confusion that is not conducive to the final and lasting resolution of the case by the highest court of last resort in the land.

What is more important to consider and point out in this regard is that there are provisions in RA 10354 which are plainly and clearly unconstitutional as found by the SC, particularly those violating religious freedom, freedom of worship and of speech and the rights of the parents and the spouses. P-Noy and his coterie of legal luminaries could not have missed them or should not have ignored them. As President who vowed to uphold our Constitution, he should have first returned the bill to Congress for purposes of amending and removing these unconstitutional provisions, or at least veto them. Instead however, he even hastily and surreptitiously signed the bill into law. This is obviously a culpable violation of the Constitution and betrayal of public trust.

Indeed it is now very clear that the main backer and principal sponsor of this law is no other than P-Noy himself. No other president before him has actively intervened in the process of legislation and aggressively pushed Congress to enact such law. And he became more aggressive after meeting US President Obama who was then pushing his global initiative to control pregnancies worldwide through contraceptives and other modes of artificial birth control especially abortion.

So people cannot help but conclude now that even the SC has been pressured by P-Noy to come up with the SC decision especially that preserving the provision mandating the government to fund the purchase of hormonal contraceptives, other supplies and reproductive health services, and to distribute them or make them available for free to the marginalized sector through the local government units (Sections 3 (a), 9 and 10). The issuance of the SC decision on this matter about two weeks before Obama’s visit to our country further bolsters this conclusion. The SC has to come out with such decision now so that when Obama arrives, P-Noy can tell him “mission accomplished”; and presents to him a valid and implementable but watered down RH law.

Even if the text of the decision has not yet been released, its inconsistency in a vital provision is already noticeable. The SC has found nothing unconstitutional in Section 9 of RA 10354 which provides that “The Philippine National Drug Formulary shall include hormonal contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family supplies as determined by the Food and Drug Administration” (FDA).

Apparently, the SC believes that its function to uphold the Constitution particularly Section 12, Article II, expressly requiring the State to “equally protect the life of the mother and the life of the unborn from conception” can already be performed by the FDA, a mere agency in the Executive Department mainly charged with supervising the sale and distribution of food and drugs. The SC ruled in effect that FDA can determine whether these hormonal contraceptives and other artificial means of controlling births are “legal.”

In fact this portion of the decision is even in conflict with another portion which declared as unconstitutional the definition of abortifacients set forth in the Implementing Rules and Regulations (IRR Section 3). Said section limits the definition of contraceptives only to those which primarily induce abortion. So the SC is here saying that other contraceptives are also arbortifacients even if they do not basically induce abortion. In fact the well established jurisprudence in the US where contraceptives originated and are now widely used, says that contraception also means abortion (Planned Parenthood vs. Casey).

Thus if the SC adopts this US ruling which it usually does when our laws are substantially similar or even patterned after a US law, like this RH law, the SC should have also declared as unconstitutional Section 9 which allows the use of hormonal contraceptives, intra uterine devices and other supplies because such use may also induce abortion secondarily and thus endanger the life of the mother and the innocent unborn child in her womb and therefore in violation of Section 12 Article II above quoted. Or at least the SC should itself define abortifacient.

It must also be pointed out that one of the main questions arising in this case regarding the use of contraceptives is “when life begins.” The pro-RH group has consistently advanced the argument that contraceptives do not cause abortion because according to them, life begins only upon implantation of the fertilized ovum in the mother’s womb and not upon fertilization of the ovum. Did the SC uphold this argument when it considered as constitutional the use of hormonal contraceptives, intrauterine devices, injectables and other effective family products found by the FDA to be “safe, legal and non-abortifacient?

For clarity and for a more conclusive ruling, the SC should further look into these apparent inconsistencies and unanswered questions.

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