Culture War in the Court: Reproductive Health Battle in the Philippines

—Anna Su, Baldy Postdoctoral Fellow, SUNY Buffalo Law School

On July 9, 2013, the Philippine Supreme Court will hear oral arguments on a constitutional challenge lodged against the recently-enacted and widely-controversial Responsible Parenthood and Reproductive Health Act of 2012 (“RH Law”). Almost eleven years in the making, the new reproductive health statute unsurprisingly encountered vociferous opposition during the time it was pending as a bill before Congress, mostly coming from conservative and pro-life organizations and the local Roman Catholic Church. On two occasions, during the eve of the House of Representatives vote on the then-pending bill (which had been postponed once), the Catholic Bishops Conference of the Philippines organized a massive protest rally-cum-prayer vigil in order to dissuade local legislators from voting in favor of the bill. In fact, during the national midterm elections held last month, the Church hierarchy and its supporters also made it a point to use the voting records on the RH bill of those who were up for reelection as a campaign issue against them.

Signed into law by President Benigno S. Aquino last December 21, 2012, ten petitions have since been filed in court against the statute, asserting a wide variety of constitutional violations. The Supreme Court issued a temporary restraining order last March 19, less than two weeks before it was due to take effect (incidentally, it was slated to take effect on Easter – one of the holiest days of Christianity which celebrates the resurrection of Christ from the dead, a coincidence that opponents of the bill took as a deliberate affront). The veritable constitutional “kitchen sink” has been thrown against the RH Law. The challenges ranged from violation of the right to life (Article II, Sec. 12, Philippine Constitution), to violation of the right to free exercise of religion (Article III, Sec. 5), violation of the primary right of parents to rear their children for civic efficiency (Article XIV, Sec. 12), and to violation of the right of educational institutions to self-determination (Article XIV, Sec. 4(1)). One petition even asserted a violation of natural law. At bottom, opponents assert that Congress had no power to enact such kind of legislation.

While birth control in general has been legal in the Philippines for many years, it has remained beyond the reach of most of its poor population. Driven by concerns for maternal health and informed reproductive choice, the RH law seeks to provide information about and universal access to reproductive health services and supplies. For purposes of this post, I will focus on two issues raised in the petitions and the relevant sections in the law: freedom of religion and the freedom of the parents and schools vis-à-vis reproductive health education mandated by the statute for public schools.

Section 7 of the RH law exempts religiously-affiliated hospitals and health centers from providing family planning resources, provided that they can refer those seeking such services to another facility which is conveniently accessible and that the said case is not an emergency condition. As a corollary to this, Section 23 of the same criminalizes the intentional withholding of information or knowingly providing incorrect information regarding these services. Moreover, it does not exempt public officials charged with the duty of implementing the law from fulfilling their duties on any ground. Section 24 provides the corresponding penalties, ranging from fines to imprisonment to revocation of license for offending pharmaceutical companies.

Some of these issues are reminiscent of the HHS mandate controversy in the United States. The HHS mandate would require nearly all private health insurance plans to include coverage for all FDA-approved prescription contraceptive drugs and devices, but allows religious employers to opt out from providing coverage. The controversy however rages over whether the exemption should also extend to non-profit organizations and for-profit organizations which have religiously informed moral objections.  Catholic hospitals or colleges run by religious orders, for example, would not be exempted from the mandate.

This problem does not seem to obtain in the Philippine scenario. Religiously-owned hospitals and health centers as the primary actors duty-bound to provide such services are given precisely an opt-out clause. Similarly, Section 23 pertains to the intentional withholding of information or knowing provision of a false one. It does not criminalize any good faith objection for as long as it is sincerely held and transparently made. On its face, it does not appear any different from similar prohibitions in disparate areas such as consumer protection or securities regulation. The stickier problem however concerns the lack of religious accommodation for public officials who are tasked with implementing the law. The Solicitor-General has argued in its comment to the petitions that the free exercise rights of public officials are outweighed by compelling state interests. Citing a 2003 precedent in which the Supreme Court rejected a free exercise claim for a court employee who have been charged with administrative liability for immoral conduct, the Solicitor-General wrote that it would lead to a “ridiculous and unacceptable situation of defeating the legitimate ends of the law by the mere expedient of a public official refusing to abide and enforce the law because of alleged religious objections.” But this conclusion is far from ironclad. In fact, the issue is still a live controversy in many jurisdictions such as the United Kingdom, Canada and the United States especially in the context of facilitating same-sex marriages. One argument for the pro-exemption side could be that providing accommodation for government employees as an empirical matter is not as costly as a slippery-slope argument might make it appear.  The exemption need not be absolute – as the Section 7 exemption for health care providers and hospitals already show, it can be conditional on the fact that somebody else would be willing to perform the required task at hand.

Another issue is that Section 14 of the law which makes it mandatory for the government to provide age-and development-appropriate reproductive health education to adolescents in  public schools violates the primary right of parents to rear their children for civic efficiency. This is a familiar area of contest in many European countries up to today. In a landmark decision in 1976, the European Court of Human Rights held that compulsory sex education classes did not violate any of these rights because the classes were “primarily intended to convey useful and corrective information which though unavoidably concerned with considerations of a moral nature did not exceed the bounds of what a democratic state may regard as in the public interest.” For as long as it is done in a non-discriminatory or neutral manner, the State may require reproductive health education as this is crucial for young people to make informed choices about their sexuality.

A perusal of the petitions against the law, as well as the popular rhetoric both in favor of and against it, suggests that the overarching battle over the RH law hinges on the difference between contraception and abortion. The Philippine Constitution prohibits abortion, and its right to life provision (defined as beginning from conception) was formulated in 1986 with the explicit aim of avoiding a Roe v. Wade scenario from materializing in the Philippine context. It must be noted that the RH law took pains to note in several of its provisions that it does not refer to the use of any abortifacients, which was statutorily defined to mean 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. It textually declares that only non-abortifacient substances will be distributed by the government, a nod no-doubt to the country’s overwhelming Catholic population, and the influence of the Catholic Church in the country. Contraception, as opposed to abortion, has no terminating effect on an implanted ovum since there is no ovum to be fertilized to begin with.

It would seem that however way the law distinguishes the two, there is no forthcoming reconciliation. So perhaps it should be important to note the significance of religious doctrine here. The official Catholic Church position on abortion and contraception is laid out in John Paul II’s 1995 encyclical Evangelium Vitae or The Gospel of Life. As far as the Catholic Church is concerned, there is no difference between the two. Manila archbishop Cardinal Luis Antonio Tagle, a frontrunner for the papacy during the recent conclave, invoked Evangelium Vitae himself in speaking against the passage of the bill. Tagle’s concern was that it would foster a culture akin to the ‘contraceptive mentality’ mentioned in the encyclical, a culture which ignores responsible parenthood and denigrates the procreative purpose of sexual intercourse.

Reproductive health issues are at the intersection of global multifaceted efforts to eradicate poverty, empower women, and achieve sustainable development – the very issues which are front and center in many developing societies such as the Philippines today. In regions where the Catholic Church is experiencing growth, it also exerts considerable social influence. If it is serious about fulfilling its mission of promoting social justice, then perhaps it should acknowledge the empirical and tangible consequences of its doctrine.

In a well-publicized statement during an interview two years ago, Pope Emeritus Benedict XVI acknowledged that the urgent imperative to prevent the spread of sexually-transmitted diseases such as AIDS could possibly outweigh the Church’s long opposition to the use of condoms. That is a start, but that does not really offer any clear guidance. Perhaps a reinterpretation of Evangelium Vitae or even a new update is badly needed. First of all, it is a matter of framing. Reproductive health measures such as contraception should be seen within a context of empowerment, rather than of hedonism. Such revised framing would go a long way into addressing the many issues implicated in it, foremost among them, the spread of sexually-transmitted diseases and the alleviation of back-breaking poverty. The reinterpretation also need not be dramatic. Dignitatis Humanae, an apostolic constitution, already paved the way when Vatican II asserted an intention to develop church doctrine when it established support for religious freedom. The same can be done with Evangelium Vitae.

Until that time, we are left with these pseudo-legal battles, the one in the Philippines just being the latest in a global culture war. Judges end up choosing the winners of the battle, but the war outside the courts lives on for another day.

Suggested Citation: Anna Su, Culture War in the Court: Reproductive Health Battle in the Philippines, Int’l J. Const. L. Blog, July 2, 2013, available at: http://www.iconnectblog.com/2013/07/culture-war-in-the-court-reproductive-health-battle-in-the-philippines