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Rep. Edcel C. Lagman: Resolving the “gray areas” consequent to the Supreme Court Decision on the Reproductive Health Law

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I’m posting this here because the RH Law, which took 13 years to finally be established, seems to be even more important now than ever. — Tania

Keynote Speech delivered by Former Rep. Edcel C. Lagman in Baguio City during the First Year Anniversary of the Supreme Court Decision on the Reproductive Health Law

The RH advocacy is a continuing crusade – from the epic 13-year struggle for the enactment of an RH Law to the one-year confrontation to surmount the constitutional challenge before the Supreme Court, and now the mission of achieving the full and expeditious implementation of the celebrated RH Law.

We must never rest on our laurels. One victory deserves another. The triumphant march must go on.

Today, we celebrate one signal victory: the first year anniversary of the adjudication by the Supreme Court that the Reproductive Health Law is on the whole constitutional.

But victory, like life itself, is most of the time, not a consummate success. There are inevitable setbacks which do not in any way detract, deter, dilute or diminish an outstanding triumph.

While the Supreme Court in its 08 April 2014 landmark decision found eight provisions of Republic Act No. 10354 not constitutional together with their counterpart provisions in the Implementing Rules and Regulations (RH-IRR) and two RH-IRR provisions as ultra vires and unconstitutional, the struck-down provisions are peripheral to the core and essence of the RH Law.

Any declaration of unconstitutionality of certain statutory provisions is strictly construed because the presumption is that a law is constitutional. Consequently, only those provisions specifically referred to by the Supreme Court in the dispositive portion of its decision are considered unconstitutional. The overwhelming majority of the provisions are constitutional.

Spared from the judicial scalpel are the following all-important provisions, among others:

  1. The government is mandated to give the marginalized sectors free access to family planning information, services and supplies (Sec. 3[c]).
  2. The Philippine National Drug Formulary shall include hormonal contraceptives, IUDs, injectables and other safe, legal, non-abortifacient and effective family planning devices and supplies, as determined by the Food and Drug Administration [Sec. 9].
  3. The Department of Health is authorized to procure family planning supplies for distribution to Local Government Units (LGUs) [Sec. 10].
  4. The Local Government Units (LGUs) are mandated to assist in the implementation of the RH Law [Sections 5, 6, 8, 16 and 20].
  5. There shall be reproductive health education for adolescents in all schools [Sec. 14]. Importantly, RH education is mandated for all schools, both public and private. The only difference is that the DepEd shall formulate the curriculum for public schools, which may be adopted by private schools. Otherwise, private schools shall make their own curriculum, subject to the supervisory authority of DepEd.

    Section 14 does not distinguish whether an adolescent is enrolled in a public or private school. It would be a violation of the equal protection clause if adolescents in private schools are deprived of the benefits of RH education.

  6. Government shall pursue public awareness programs and massive nationwide multi-media campaigns on promotion and protection of reproductive health.

With the constitutionality of the foregoing salient provisions sustained, the voiding of a few provisions will not lessen the efficacy of the law and negate its full implementation.

The few voided provisions can be classified into the following categories:

1. Protection of the right of conscientious objectors.

(a) The Supreme Court voided the affected portion of Section 7 and the corresponding provision in the RH-IRR “insofar as they require private health facilities and non-maternity specialty hospitals and hospitals owned and operated by a religious group to refer patients, not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to another health facility which is conveniently accessible”.

What was specifically struck down was the referral requirement imposed on private health facilities, non-maternity specialty hospitals and hospitals owned and operated by a religious group for refusal to extend reproductive health care services to patients on the ground of “conscientious objection”.

The rest of the provisions in Section 7 on “Access to Family Planning” are not constitutionally infirm as they were not declared unconstitutional by the Supreme Court. The constitutional provisions read: “All accredited public health facilities shall provide a full range of family planning methods which shall also include medical consultation, supplies and necessary and reasonable procedures for poor and marginalized couples having infertility issues who desire to have children: Provided, That family planning services shall likewise be extended by private health facilities to paying clients with the option to grant free care and services to indigents.”

Consequently, all accredited public health facilities are mandated, without exception, to render reproductive health services to patients. Moreover, private health facilities are likewise mandated to extend such services to paying clients.

(b) Also nullified is “Section 23 (a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof insofar as they punish any healthcare service provider who fails and/or refuses to refer a patient not in an emergency or life-threatening case as defined under Republic Act No. 8344, to another healthcare service provider within the same facility or one which is conveniently accessible regardless of his or her religious beliefs.”

In this case, the exemption from the referral requirement covers any healthcare service provider regardless of his or her religious beliefs. In other words, an objecting healthcare service provider in an accredited public health facility is exempt from the referral requirement, even as the public health facility is not exempt, and the protected objection is “regardless of his or her religious beliefs”. The Supreme Court has unduly liberalized the rule on conscientious objector, which is supposed to be limited to religious or ethical objections. By extending to all healthcare service providers the privilege of conscientious objection outside of religious or ethical grounds would allow one to make contrived objections.

(c) A private RH care provider who is a conscientious objector is not required to render 40-hour a year pro bono service to indigent women as a condition precedent to PhilHealth accreditation because this requirement for accreditation was voided by the Supreme Court. But the policy of encouraging private practitioners to extend a minimum of 40 hours annually of free RH services to indigent women is maintained.

2. Requirement of spousal and parental consent.

(a) Spousal consent is needed for a married person to undergo ligation or vasectomy because the Supreme Court voided the provision in the RH Law which states that in case of disagreement between the spouses, the spouse undergoing the procedure shall prevail.

(b) Written parental consent is required for all minors to access modern contraceptives because the Supreme Court struck down the provision where parental consent is not needed when a minor is already a parent or has had a miscarriage.

(c) Parental consent is required for minors who shall undergo non-elective surgical procedures like terminating an ectopic pregnancy or undergoing D and C after an abortion or miscarriage because the Supreme Court voided the provision which required parental consent for minors who are undergoing only elective surgical procedures, and extended the requirement of parental consent to non-elective or medically mandatory surgical procedures.

3. Any public official who refuses to support or hinders the implementation of the RH Law is not culpable.

The Supreme Court declared as unconstitutional the latter portion of “Section 23 (b) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof, insofar as they punish any public officer who refuses to support reproductive health programs or shall do any act that hinders the full implementation of a reproductive health program regardless of his or her religious beliefs”.

The Supreme Court did not declare the nullity of the rest of the provisions in Section 23 (b), which read:

(b) Any public officer, elected or appointed, specifically charged with the duty to implement the provisions hereof, 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, x x x. (Emphasis supplied).

What the Supreme Court selectively declared as unconstitutional is the last portion of Section 23 (b) which punishes any public officer who commits or fails “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”.

Consequently, a public officer, elected or appointed, specifically charged with the duty to implement the provisions of the RH Law, is not exempt from liability if he (a) “personally or through a subordinate, prohibits or restricts the delivery of legal and medically-safe reproductive health care services, including family planning”; (b) forces, coerces or induces any person to use such services”; and (c) refuses to allocate, approve or release any budget for reproductive health care services”. The foregoing specific acts are not subsumed under the acts which the Supreme Court declared public officers can do without incurring liability.

4. Failure or refusal to disseminate information is not culpable.

The Supreme Court nullified “Section 23 (a)(1) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof, insofar as they punish any healthcare service provider who fails or refuses to disseminate information regarding programs and services on reproductive health regardless of his or her religious beliefs.”

The partially affected provision reads in full:

(1) “Knowingly withhold information or restrict the dissemination thereof, and/or intentionally provide incorrect information regarding programs and services on reproductive health including the right to informed choice and access to a full range of legal, medically-safe, non-abortifacient and effective family planning methods.” (Emphasis supplied).

Accordingly, the failure or refusal to disseminate RH information is not culpable but knowingly or intentionally giving false information is punishable. On this score, the Supreme Court in its decision held that:

“From its plain meaning, the word ‘incorrect’ here denotes failing to agree with a copy or model or with established rules; inaccurate, faulty; failing to agree with the requirements of duty, morality or propriety; and failing to coincide with the truth. On the other hand, the word ‘knowingly’ means with awareness or deliberateness that is intentional. Used together in relation to Section 23(a)(l), they connote a sense of malice and ill motive to mislead or misrepresent the public as to the nature and effect of programs and services on reproductive health. Public health and safety demand that health care service providers give their honest and correct medical information in accordance with what is acceptable in medical practice. While health care service providers are not barred from expressing their own personal opinions regarding the programs and services on reproductive health, their right must be tempered with the need to provide public health and safety. The public deserves no less. (Emphasis supplied).

The Supreme Court likewise voided “Section 3.01(a) and Section 3.01(j) of the RH-IRR, which added the qualifier ‘primarily’ in defining abortifacients and contraceptives, as they are ultra vires and, therefore, null and void for contravening Section 4(a) of the RH Law and violating Section 12 Article II of the Constitution.”

The proponents of the RH Bill in the House of Representatives agreed to the re-definition of “abortifacients” to include “the prevention of the fertilized ovum to reach and be implanted in the mother’s womb upon determination by the FDA” because there is no medical and scientific validation that some contraceptives have the secondary action of preventing the fertilized ovum from implanting in the uterus. Consequently, the adoption of the re-definition was merely to accommodate the oppositors because the said secondary action is a mere commercial claim of manufacturers of contraceptives and re-echoed by the opponents of the RH Bill without scientific anchorage.

The struck-down provisions are peripheral to the core of the RH Law because:

1. They pertain to exceptions like:

(a) Conscientious objection, whether genuine or contrived, is an exception to general compliance by healthcare service providers, the vast majority of whom avidly support the RH Law;

(b) Public officials who would not support or hinder the implementation of the RH Law constitute a small minority because the majority of public functionaries will abide by their oath of office of observing and complying with the law;

(c) Ordinarily spouses agree to one of them underdoing ligation or vasectomy particularly when they already have many children or the procedure is required for health reasons. Consequently, disagreement between spouses is the exception; and

(d) Non-elective surgical procedures requiring parental consent are exceptional.

2. There is no sanction or penalty for non-observance of the Supreme Court’s nullification of some prohibited acts because the very penalty imposed by the law has been removed by the voiding of the affected prohibited acts. For example:

(a) A woman who undergoes ligation against the wishes of her husband does not commit any criminal offense and likewise the healthcare service provider who performs the procedure is not culpable in the absence of a penal sanction;

(b) A minor who, without parental consent, undergoes a non-elective surgery is not punishable and the healthcare service provider who performs the surgery is also not liable because there is no penalty prescribed for said acts; and

(c) A minor who accesses without parental consent modern contraceptives for protection is not culpable, just like the doctor or pharmacist who provides the contraceptive in the absence of a penal provision.

Only the Congress can prescribe penalties and the Supreme Court cannot, as it did not, prescribe any penalties for the commission of the acts found in the voided provisions. Otherwise, the Supreme Court will meander into prohibited judicial legislation. Settled is the rule that without a corresponding penalty, there is no crime (Nullum crimen, nulla poena sine lege).

I submit that the struck-down provisions will not create “gray areas” in the implementation of the RH Law if the voided provisions are strictly construed or interpreted and the declaration of unconstitutionality is limited to the precise sections or provisions specifically pointed out by the Supreme Court in the dispositive portion of its decision.

In order not to delay further the implementation of the RH Law, like the Solicitor General, I did not file a motion for the Supreme Court to reconsider its declaration of nullity of the aforecited provisions. I am not saying that the Supreme Court was correct in declaring unconstitutional some provisions of the RH Law and the RH-IRR. I have strong reservations on the validity of the Supreme Court’s pronouncements on limited nullity.

However, since the Supreme Court has spoken, the recourse is to enact the necessary remedial legislation to temper or reverse the effects of the voiding of some of provisions. The requisite bills must be filed in Congress at the appropriate time, which is not yet now. We must not be rash to avoid reigniting the flames of conflict too soon.

About the Author

Tania Arpa (48 Posts)

Thinker, writer, skeptic, spy. Geek. I do my own stunts. Follow me on Twitter at @TaniaArpa.

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Thinker, writer, skeptic, spy. Geek. I do my own stunts. Follow me on Twitter at @TaniaArpa.

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