James M. Imbong v. Hon. Paquito N. Ochoa, Jr., G.R. No. 204819, 8 April 2014
Decision, Mendoza [J]
Concurring and Dissenting Opinion, Sereno [J]
Concurring and Dissenting Opinion, Del Castillo [J]
Concurring and Dissenting Opinion, Reyes [J]
Concurring and Dissenting Opinion, Perlas-Bernabe [J]
Concurring Opinion, Carpio [J]
Concurring Opinion, Leonardo-De Castro [J]
Concurring Opinion, Abad [J]
Separate Concurring Opinion, Brion [J]
Dissenting Opinion, Leonen [J]

Republic of the Philippines
SUPREME COURT
Baguio City

EN BANC

G.R. No. 204819               April 8, 2014

JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their minor children, LUCIA CARLOS IMBONG and BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD DEVELOPMENT CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local Government, Respondents.

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G.R. No. 204934

ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its President, Maria Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro, Jose S. Sandejas & Elenita S.A. Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S. Mante, Jr. & Hazeleen L. Mante, Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio Racho & Traquilina Racho, F emand Antonio A. Tansingco & Carol Anne C. Tansingco for themselves and on behalf of their minor children, Therese Antonette C. Tansingco, Lorenzo Jose C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco & Juan Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on behalf of their minor children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses Renato C. Castor & Mildred C. Castor for themselves and on behalf of their minor children, Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphael C. Castor, Spouses Alexander R. Racho & Zara Z. Racho for themselves and on behalf of their minor children Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho, Spouses Alfred R. Racho & Francine V. Racho for themselves and on behalf of their minor children Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho & Laura Racho, Spouses David R. Racho & Armilyn A. Racho for themselves and on behalf of their minor child Gabriel Racho, Mindy M. Juatas and on behalf of her minor children Elijah Gerald Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws & Katrina R. Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports, HON. CORAZON SOLIMAN, Secretary, Department of Social Welfare and Development, HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local Government, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management, HON. ARSENIO M. BALISACAN, Socio-Economic Planning Secretary and NEDA Director-General, THE PHILIPPINE COMMISSION ON WOMEN, represented by its Chairperson, Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH INSURANCE CORPORATION, represented by its President Eduardo Banzon, THE LEAGUE OF PROVINCES OF THE PHILIPPINES, represented by its President Alfonso Umali, THE LEAGUE OF CITIES OF THE PHILIPPINES, represented by its President Oscar Rodriguez, and THE LEAGUE OF MUNICIPALITIES OF THE PHILIPPINES, represented by its President Donato Marcos, Respondents.

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G.R. No. 204957

TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of Education; and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local Government, Respondents.

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G.R. No. 204988

SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D., as President and in his personal capacity, ROSEVALE FOUNDATION INC., represented by Dr. Rodrigo M. Alenton, M.D., as member of the school board and in his personal capacity, ROSEMARIE R. ALENTON, IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd., ANTHONY G. NAGAC, EARL ANTHONY C. GAMBE and MARLON I. YAP, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of Health; HON. ARMIN A. LUISTRO, Secretary, Department of Education and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local Government, Respondents.

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G.R. No. 205003

EXPEDITO A. BUGARIN, JR., Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE PRESIDENT, HON. SPEAKER OF THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR GENERAL, Respondents.

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G.R. No. 205043

EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM SECRETARY FLORENCIO B. ABAD, DILG SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN A. LUISTRO, Respondents.

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G.R. No. 205138

PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National President, Atty. Ricardo M . Ribo, and in his own behalf, Atty. Lino E.A. Dumas, Romeo B. Almonte, Osmundo C. Orlanes, Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly Siguan, Dante E. Magdangal, Michael Eugenio O. Plana, Bienvenido C. Miguel, Jr., Landrito M. Diokno and Baldomero Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local Government, HON. CORAZON J. SOLIMAN, Secretary, Department of Social Welfare and Development, HON. ARSENIO BALISACAN, Director-General, National Economic and Development Authority, HON. SUZETTE H. LAZO, Director-General, Food and Drugs Administration, THE BOARD OF DIRECTORS, Philippine Health Insurance Corporation, and THE BOARD OF COMMISSIONERS, Philippine Commission on Women, Respondents.

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G.R. No. 205478

REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D., AND JOSEPHINE MILLADO-LUMITAO, M.D., collectively known as Doctors For Life, and ANTHONY PEREZ, MICHAEL ANTHONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO JOSE, CLAIRE NAVARRO, ANNA COSIO, and GABRIEL DY LIACCO collectively known as Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary of the Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary of the Department of Health; HON. ARMIN A. LUISTRO, Secretary of the Department of Education; and HON. MANUELA. ROXAS II, Secretary of the Department of Interior and Local Government, Respondents.

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G.R. No. 205491

SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for themselves, their Posterity, and the rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.

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G.R. No. 205720

PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive Director, and in her personal capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A. CRISOSTOMO, JEREMY I. GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY, WINSTON CONRAD B. PADOJINOG, RUFINO L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local Government, Respondents.

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G.R. No. 206355

MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA BORROMEO-GARCIA, STELLAACEDERA, ATTY. BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF HEALTH, DEPARTMENT OF EDUCATION, Respondents.

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G.R. No. 207111

JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO ABAD, Secretary, Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local Government, Respondents.

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G.R. No. 207172

COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI SARMIENTO AND FRANCESCA ISABELLE BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A. RODRIGO, JR. and DEBORAH MARIE VERONICA N. RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local Government, Respondents.

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G.R. No. 207563

ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of the Department of Health, and HON. ARMIN A. LUISTRO,Secretary of the Department of Budget and Management, Respondents.

OPINYONG SUMASANG-AYON AT SUMASALUNGAT

Paunang Salita

Sa herarkiya ng mga karapatang pantao, walang hihigit pa sa karapatang mabuhay, at nasasalamin ng ating Saligang Batas ang ganitong paniniwala. Ayon dito, pantay na pangangalagaan ng pamahalaan ang buhay ng ina at ang buhay na kanyang dinadala.1

Bakas sa adhikaing ito ang pagkilal a sa malaking bahaging ginagampanan ng ina sa pagbibigay ng buhay.

Kaya't sasalungatin ko ang bigkasin ng aking mga kapatid na Mahistrado, na ang pagpapalaya sa pasiya ng may-katawan ay kumikitil ng buhay ng kapwa-taong isisilang pa lamang. Wala sa takda ng Saligang Batas at Repub lic Act No. 10354 (The Responsible Parenthood and Reproductive Health Act of 2012), o RH Law, ang pagkitil ng buhay. Nguni't inuunawa rin nito ang karapatan ng mag-asawa na magpalaki ng kanilang pamilya ng may dangal sa buhay. Napakahalaga din sa pananaw ng Saligang Batas at ng RH Law ang kalusugan ng pamayanan, lalong-lalo na ang kalusugan ng mga ina o magiging ina ng pamayanang ito. Kaya't mahalaga na ang bawat interpretasyon ng RH Law ay ayon sa ikabubuti ng pamilyang Pilipino at kalusugan ng ina.

Naitakda na sa Saligang Batas, at alinsunod naman dito ang RH Law, na ang buhay ay pangangalagaan mula sa conception. Kung ano ang puntong iyon ay katanungan para sa mga dalubhasa ng siyensiya, at hindi para sa Korte Suprema. Mayroong prosesong naitakda ang RH Law kung saan kinikilala ang pangunahing kapangyarihan ng Food and Drug Administration (FDA) sa pagsusuri sa mga katangian ng isang metodo o gamot upang alamin kung ito ay gagamitin sa pagkitil ng buhay na pinagbabawal ng Saligang Batas. Maaari lamang saklawan ng Korte Suprema ang tanong na ito kung ang prosesong legal ay lumabag sa mga alituntunin ng due process at mga kaakibat na procedural rules nito. Sukdulang panghihimasok ang magtakda kami sa panahong ito kung ang mga hormonal contraceptives ay abortifacient o hindi.

Gayundin, ang may-katawan na daraan sa paglilihi, pagbubuntis at maaaring ikapeligro ng sariling buhay ay nararapat na pakinggan ng pamahalaan. Maaaring imungkahi ng kapamilya, kasama na ng kanyang asawa, ang altematibong paraan upang harapin ang sitwasyong pangkalusugan. Nguni't sa bandang huli, ang pasiya ng may-katawan ang dapat manaig. At bagama't ang may-katawan ay wala pa sa hustong gulang, kung siya ay nabuntis na, hindi dapat hadlangan ang kanyang kakayahang humingi ng tulong ukol sa reproductive health kahit walang pahintulot ng kanyang magulang sapagka't nakasalalay sa ganitong kakayahan ang kanyang kalusugan at mismong buhay.

Sa panig ng mga matataas na nanunungkulan sa pamahalaan na inatasang magpatupad ng RH Law, hindi nararapat na sila ay hayaang lumabag sa katungkulang ito. Binigyan sila ng kapangyarihan ng pamahalaan upang ipatupad ang mga batas, at hindi nila maaaring gamitin ang nasabing kapangyarihan upang biguin ang mga nilalayon ng pamahalaan para sa mga mamamayan, lalo na't ang mga layuning ito ay kaugnay sa usaping pangkalusugan.

Sinusuportahan ng RH Law ang pagsulong at pangangalaga sa karapatan ng kababaihan. Ang pagkakaloob ng mabisa at mahusay na reproductive health care services ay ayon sa layunin nitong masiguro ang kalusugan ng mag-ina, at makapagtatag ng sapat na pamantayan alang-alang sa kapakanan ng lahat.

Hindi maikakaila na ang paulit-ulit na pagbanggit sa mga katagang "medically-safe, non-abortifacient, effective, legal, affordable and quality reproductive health care services, methods, devices and supplies" sa RH Law ay di-pangkaraniwang pagpapahalaga sa buhay ng tao at ang sadyang pagwawaksi sa abortion bilang isang krimen na may karampatang parusa ayon sa ating batas.

Ang Pasanin ng Petitioners

Pinapalagay bilang isang paunang pag-unawa, na ang lahat ng batas ay hindi labag sa Saligang Batas o konstitusyonal.2 Ito ay pangunahing prinsipyo na matagal nang kinikilala, kung kaya't iniiwasan ng Korte Suprema na ipawalang-bisa ang isang batas3 bilang pagkilala sa dunong, dangal at kabayanihan ng Kongreso na gumawa nito, at sa Pangulo na nagpatibay dito.4 Ang tungkuling magpatupad ng Saligang Batas ay hindi natatangi sa Korte Suprema; ito ay kaakibat na katungkulan ng Kongreso at ng Pangulo.5

Dahil ang lahat ng batas ay ipinapalagay na konstitusyonal, ang sinuman na dudulog sa Korte Suprema upang ipawalang-bisa ito ay mabigat ang susuungin. Ipapawalang-bisa lamang ng Korte Suprema ang isang batas o bahagi nito kung malinaw na maipakikita ng petitioner ang paglabag nito sa Saligang Batas.6 Kinakailangang malinaw at totohanan ang mga batayan sa pagpapawalang-bisa ng batas, at hindi maaaring ang mga ito ay haka-haka lamang.7 Saka lamang ipapawalang-bisa ng Korte Suprema ang isang batas kung malinaw na naipakita ang pagmamalabis at pagsalungat ng Kongreso sa ating Saligang Batas.8

Ang Pasiya ng Mayorya

Ayon sa Decision, ang RH Law ay konstitusyonal maliban na lamang sa mga sumusunod na bahagi nito:

1. Section 7,9 at ang kaukulang bahagi nito sa Implementing Rules and Regulations (IRR) ng RH Law, sa dahilang ito ay: a) nag-uutos sa mga non-maternity specialty hospitals at mga ospital na pagmamay-ari o pinatatakbo ng mga religious group na agarang ituro sa pinakamalapit na health facility ang mga pasyenteng wala sa emergency condition o hindi serious case, ayon sa R.A. 8344,10 na naghahangad ng serbisyo ukol sa modern family planning methods,11 at b) nagbibigay-daan sa mga menor de edad na may anak o nagkaroon ng miscarriage na makinabang sa modern family planning methods kahit walang pahintulot ng kanilang mga magulang;12

2. Section 23(a)(1),13 at ang Section 5.2414 ng IRR ng RH Law, sa dahilang pinarurusahan ni to ang kahit sinong health care service provider na hindi nagpalaganap o tumangging magpalaganap ng mahalagang kaalaman kaugnay ng mga programa at serbisyo ukol sa reproductive health, nang walang pakundangan sa religious beliefs ng mga health care service providers na ito;

3. Section 23(a)(2)(i),15 at ang kaukulang bahagi nito sa IRR ng RH Law,16 sa dahilang nagbibigay-daan ito sa isang may asawa na wala sa emergency condition o hindi serious case na sumailalim sa reproductive health procedures kahit walang pahintulot ng kanyang asawa;

4. Section 23(a)(2)(ii)17 sa dahilang pinarurusahan nito ang health care service provider na hihingi ng pahintulot ng magulang bago magsagawa ng reproductive health procedure sa menor de edad na wala sa emergency condition o hindi serious case;

5. Section 23(a)(3),18 at ang Section 5.24 ng IRR ng RH Law, sa dahilang pinarurusahan nito ang kahit sinong health care service provider na hindi nagturo o tumangging ituro sa pinakamalapit na health facility ang mga pasyenteng wala sa emergency condition o hindi serious case na naghahangad ng serbisyo ukol sa modern family planning methods;

6. Section 23(b),19 at ang Section 5.24 ng IRR ng RH Law, sa dahilang pinarurusahan nito ang kahit sinong public officer na ayaw magtaguyod ng reproductive health programs o gagawa ng kahit anong hahadlang o makakasagabal sa malawakang pagsasakatuparan ng isang reproductive health program;

7. Section 17,20 at ang kaukulang bahagi nito sa IRR ng RH Law,21 kaugnay sa pagsasagawa ng pro bona reproductive health services sa dahilang naaapektuhan nito ang conscientious objector sa pagkuha ng PhilHealth accreditation; at

8. Section 3.0l(a)22 at 3.01Q)23 ng IRR ng RH Law sa dahilang nagdadagdag ito ng salitang "primarily" sa kahulugan ng abortifacient, na labag sa Section 4(a)24 ng RH Law at Section 12, Article II25 ng Saligang Batas.

Ang Religious Freedom, ang Compelling State Interest Test, at ang Conscientious Objector

Bago ko talakayin ang mga substantibong mga argumento ukol sa religious freedom, nais kong batikusin ang paggamit ng isang technical legal test upang timbangin kung alin sa dalawa: (a) ang polisiya ng pamahalaan, gaya ng reproductive health, o (b) isang karapatan gaya ng religious freedo m, ang dapat manaig. Sa palagay ko, hindi akma ang paggamit ng technical legal test na compelling state interest sa kasong hinaharap natin.

Hindi ako sumasang-ayon na nararapat gamitin ang compelling state interest test upang tiyakin ang legalidad ng RH Law - partikular na ang paggarantiya ng pamahalaan sa ligtas, mabisa, abot-kaya, de-kalidad, naaayon sa batas at hindi abortifacient na reproductive health care services, methods, devices at supplies para sa lahat, pati na ang mahalagang kaalaman ukol dito - sa kadahilanang buo ang pagkilala ng RH Law sa religious freedom, kaya't hindi na kailangan ang test na ito. Sa Estrada v. Escritor,26 ipinaliwanag natin na:

The "compelling state interest" test is proper where conduct is involved for the whole gamut of human conduct has different effects on the state's interests: some effects may be immediate and short-term while others delayed and far-reaching. A test that would protect the interests of the state in preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys a preferred position in the hierarchy of rights - "the most inalienable and sacred of all human rights," in the words of Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of limited government is premised upon an acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in order to build a just and humane society and establish a government." As held in Sherbert, only the gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing of interests which balances a right with just a colorable state interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over the fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise would allow the state to batter religion, especially the less powerful ones until they are destroyed. In determining which shall prevail between the state's interest and religious liberty, reasonableness shall be the guide. The "compelling state interest" serves the purpose of revering religious liberty while at the same time affording protection to the paramount interests of the state.27 (Emphasis ours)

Ginamit ang compelling state interest test sa Estrada v. Escritor upang malaman kung ang respondent doon ay nararapat na bigyan ng exemption laban sa kasong administratibo bunga ng pakikisama niya sa lalaking hindi niya asawa ayon sa Civil Code. Karaniwan, bilang kawani ng pamahalaan, mahaharap ang respondent sa kasong disgraceful and immoral conduct. Bagkus, inilahad ng respondent na bagama't walang basbas ng pamahalaang sibil ang kanilang pagsasama, may basbas naman ito ng kanilang relihiyon na Jehovah's Witnesses and the Watch Tower and Bible Tract Society. Kaya't hindi siya nararapat na sampahan ng kasong administratibo bunga nito.

Sa kadahilanang aminado naman ang Solicitor General na tunay at tapat ang paniniwala ng respondent sa kaniyang relihiyon, at nagdudulot ng ligalig sa kanyang paniniwala ang banta ng disciplinary action bunga ng kasong disgraceful and immoral conduct, nagpasiya ang Korte Suprema na nararapat na patunayan ng pamahalaan kung tunay nga na may compelling secular objective na nagbunsod dito upang hindi payagan ang pakikisama ng respondent sa lalaking hindi niya asawa. Nararapat din, ayon sa Korte Suprema, na ipakita ng pamahalaan na gumamit ito ng least restrictive means sa pagpigil ng karapatan ng mga tao sa pagtatanggol nito ng compelling state interest.

Ukol dito, inihayag ng Korte Suprema na "the government must do more than assert the objectives at risk if exemption is given, it must precisely show how and to what extent those objectives will be undermined if exemptions are granted."28 Sa kalaunan, bigo ang pamahalaan na patunayan ang pakay nito sa pagbabawal sa relasyon ng respondent. Bunsod nito, binigyan ng exemption sa parusa ang respondent batay sa kanyang religious freedom.

Malinaw sa Estrada v. Escritor na sa ilalim ng compelling state interest test, ipinagtutunggali ang religious freedom ng mga mamamayan at ang interes ng pamahalaan sa pagpapatupad ng patakarang sinasabing nagpapahirap sa religious convictions ng ilan. Kapag hindi nanaig ang interes ng pamahalaan, magbibigay ng exemption sa patakaran ang Korte Suprema para sa mga mamamayang naninindigan para sa kanilang religious freedom. Isinaad din sa Estrada v. Escritor na nakagawian na ng Korte Suprema na magbigay ng exemption sa halip na magpawalang-bisa ng mga patakaran ng pamahalaan pagdating sa usapin ng religious freedom.

Hindi ito ang sitwasyon sa ilalim ng RH Law. Ayon sa petitioners, katumbas ng isang pagkakasala sa ilalim ng kanilang relihiyon ang pagsasagawa ng serbisyo ukol sa modern family planning methods at pagbibigay ng payo ukol dito. Labag ito sa religious freedom ng mga conscientious health professionals na naniniwalang likas na masama ang contraception. Dahil dito, nararapat na ipawalang-bisa ang RH Law. At, ayon sa mga kapatid kong Mahistrado, walang compelling state interest para payagan ang pamahalaang pilitin ang health professionals na lumabag sa kanilang paniniwala. Ang totoo, walang paglabag sa paniniwala na pinapataw ang RH Law.

Ang Opt-Out Clause

Nakalimutan ng petitioners ang kabuuan ng RH Law. Batid ng Kongreso na maaaring makasagasa sa paniniwala at ikaligalig ng ilang medical professionals ang kautusang ito sa RH Law. Dahil mismo dito kaya nag-ukit ang Kongreso ng exemption sa RH Law para sa mga conscientious objectors sa pamamagitan ng "opt-out clause." Sa ilalim ng opt-out clause na nakapaloob sa Section 7 ng RH Law, hindi obligadong magdulot ng serbisyo kaugnay sa modern family planning methods ang mga non-maternity specialty hospitals at mga ospital na pagmamay-ari at pinatatakbo ng mga religious groups. Sa kabilang banda, pinahahalagahan sa ilalim ng Section 23(a)(3) ng RH Law ang conscientious objection ng health care service providers batay sa kanilang ethical o religious beliefs. Ayon dito, exempted sila sa kaparusahan na ipapataw sa mga tatangging magdulot ng reproductive health care services at magbigay ng mahalagang kaalaman ukol dito .

Samakatuwid, hindi na nararapat na gamitin pa ang compelling state interest test upang matiyak ang legalidad ng RH Law. Matatandaang sa ilalim ng compelling state interest test, kai langang ipakita ng pamahalaan kung paano mawawalan ng saysay ang mga layunin nito sa pagbuo ng RH Law kung magbibigay ito ng exemptions sa mga itinatakda ng batas. Nguni't dahil kinilala na ng RH Law ang religious freedom ng mga conscientious objectors sa pamamagitan ng exemption na naka-ukit na dito, wala na sa pamahalaan ang pasanin upang ipagtanggol ang interes nito sa pagsisikap na mapangalagaan ang reproductive health ng mga mamamayan.

Naging sensitibo ang Kongreso sa paniniwala ng mga conscientious objectors sa pamamagitan ng paglalatag ng exemptions sa RH Law. Sa puntong ito, kung kakailanganin pa ng Kongreso na patunayan ang compelling state interest, mawawalan ng saysay ang respeto sa isa't isa na iniaatas ng ating Saligang Batas sa mga magigiting na sangay ng pamahalaan.

Ang agarang pagturo na lamang sa pinakamalapit na health facility o health care service provider sa mga pasyenteng naghahangad ng serbisyo ukol sa modern family planning methods ang nalalabing katungkulan ng mga conscientious objectors, ng mga non-maternity specialty hospitals, at mga ospital na pagmamay-ari at pinatatakbo ng mga religious groups. Ito ay upang malaman ng pasyente kung saan siya tutungo at upang hindi naman sila mapagkaitan ng serbisyong inihahandog ng pamahalaan para mapangalagaan ang kanilang reproductive health.

Ayon sa Solicitor General:

74. The duty to refer, as an "opt out" clause, is a carefully balanced compromise between, on one hand, the interests of the religious objector who is allowed to keep silent but is required to refer and, on the other, the citizen who needs access to information and who has the right to expect that the health care professional in front of her will act professionally. The concession given by the State under Section 7 and 23(a)(3) is sufficient accommodation to the right to freely exercise one's religion without unnecessarily infringing on the rights of others.29

Ayaw magpadala ng mga petitioners. Giit nila, labag pa rin sa kanilang religious freedom ang pag-aatas ng duty to refer. Sang-ayon dito ang Decision at nagsaad ito na ang opt-out clause ay isang "false compromise because it makes pro-life health providers complicit in the performance of an act that they find morally repugnant or offensive. "30

Ayon sa paninindigang ito, ang pagturo sa pasyente sa ibang pinakamalapit na health facility o health care service provider na makatutulong sa kanila ay kahalintulad na kaagad ng contraception, ang bagay na kanilang itinuturing na likas na masama. Totoo naman na maaaring puntahan nga ng pasyente ang itinurong health facility o health care service provider at doon ay makakuha ito ng serbisyo ukol sa modern family planning methods na makasalanan sa paningin ng conscientious objector. Nguni't bunga lamang ng pagsasanib ng napakaraming posibilidad ang resultang ito.

Maaaring magpasiya ang pasyente na hindi na lang kumunsulta, o kaya ay pumunta ito sa health facility o health care service provider na iba sa itinuro sa kanya ng conscientious objector. Maaari ding magpayo ang naiturong health facility o health care service provider na hindi hiyang o nararapat sa pasyente ang modern family planning methods dahil sa kundisyon ng kanyang pangangatawan. Maaaring pagkatapos ng lahat ng pagpapayo, pagpapatingin at paghahanda ukol sa gagawing modern family planning method o procedure ay magpasiya ang pasyente na huwag na lang ituloy ang lahat ng ito.

Isa lamang sa maraming posibilidad ang kinatatakutang resulta ng mga petitioners, at gayunpaman, hindi huling hakbang na maghahatid sa pasyente tungo sa contraception ang pagtuturo sa ibang health facility o health care service provider.

Ayon sa Decision, walang idinudulot na paglabag sa religious freedom ang pag-uutos sa mga ikakasal na dumalo sa mga seminar ukol sa responsible parenthood, family planning, breastfeeding at infant nutrition dahil hindi naman sila obligadong sumunod sa mga ituturo dito. Hindi rin masama ang pagbibigay-daan na mabigyan ng mahalagang kaalaman tungkol sa family planning services ang mga menor de edad na may anak o nagkaroon ng miscarriage para matutunan nila ang mga bagay na makatutulong sa kanila upang pangalagaan ang kanilang katawan at anak o dinadala. Kung gayon, at kahalintulad ng nasabing sitwasyon, wala rin dapat pagtutol sa atas ng RH Law na ituro ng mga conscientious objector ang mga pasyente sa pinakamalapit na health facility o health care service provider na makatutulong sa kanila.

Ang pagpapahalaga sa informed choice ng mga Pilipino pagdating sa usapin ng reproductive health ang pundasyon ng RH Law. Mananatili ang pagpapasiya sa pasyente; hinihiling lamang na huwag hadlangan ng conscientious objectors ang kanilang daan tungo sa paggawa ng masusing pagpapasiya.

Kinikilala ng International Covenant on Civil and Political Rights na ang religious freedom ay maaari ding mapasailalim sa mga "limitations ... prescribed by law and ... necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others."31 Bukod dito, hindi rin maikakaila na maaaring ipagbawal ng pamahalaan ang isang gawain kahit alinsunod pa ito sa religious convictions kung ito ay labag sa "important social duties or subversive of good order."32

Sa kanilang pagpasok sa propesyon, tinanggap ng mga medical professionals ang mga moral values at kaakibat na katungkulan sa mga pasyente.33 Isa di to ang napapanahong duty to refer sa ibang health facility o health care service provider kung batid nila na dahi l sa kanilang religious beliefs, hindi nila maaaring ihatid ang serbisyong hinihingi o kinakailangan ng pasyente.34 Upang mapanatili ang ethical practice, hinihikayat ng mga pantas ang mga conscientious objectors na maglingkod kalapit ang ibang medical professionals na hindi conscientious objectors upang maayos na mapanatili ang isang referral system para masigurado na maibibigay sa pasyente ang mga pangangailangan nitong hindi kayang tugunan ng conscientious objector.35 Mahalaga ito upang masiguro na tuloy-tuloy ang serbisyong pangkalusugan para sa mga taong nangangailangan nito.

Dahil dito, hindi maituturing na dagdag pasanin ng medical professionals ang duty to refer sa ilalim ng RH Law. Likas na ito sa kanilang propesyon. Sa katunayan, nasa kapangyarihan ng Kongreso ang maglatag ng mga alituntunin at dagdag na pasanin sa propesyon ng medisina ayon sa police power nito upang isulong ang public health. At, inuunawa ng RH Law na dahil sa religious convictions, hindi maaaring isagawa ng isang medical professional ang serbisyo ukol sa modern family planning methods kahit hinihingi pa ng pasyente. Dahil dito, pinapayagan sila na tumanggi ng pasyente at papuntahin ito sa ibang medical professional na makatutulong di to.

Kung tutuusin, maituturing na paglabag sa sinumpaang tungkulin ng mga medical professionals ang pagtangging magturo ng pasyente sa ibang medical professional. Maaari itong maging basehan ng disciplinary action laban sa kanila. Ayon sa isang lathalain, dahil ang mga medical professionals ay napapaloob sa isang monopoly sa paghahatid ng serbisyong pangkalusugan, ang ilan sa kanila na mas pinahahalagahan ang kanilang religious interests nang walang pakundangan sa kapakanan ng kanilang pasyente ay nababalot sa isang matinding conflict of interest.36 Kilala ang dakilang propesyong ito sa pagpapakasakit para sa ikabubuti ng ibang tao,37 kaya naman ang pagtanggi kahit sa pagtuturo na lamang sa ibang health facility o health care service provider ay maituturing na pagkait ng serbisyong pangkalusugan sa mga pasyente.

Upang mabigyan ng katumbas na proteksyon ang karapatan ng mga pasyente sa tuloy-tuloy na serbisyong pangkalusugan, minabuti ng Kongreso na patawan ng parusa ang mga conscientious objectors na tatangging tuparin man lamang ang duty to refer. lpinataw ang parusa upang masiguro na hindi naman magagamit ng conscientious medical professionals ang exemption na ipinagkaloob sa kanila upang ipataw ang kanilang religious beliefs sa kanilang mga pasyente. Pinaiiral ito ng prinsipyong ang karapatan ng malayang pagsamba at pagpapahayag ng relihiyon ay nangangahulugan na walang karapatan ang sinuman na mang-api sa paniniwalang hindi ayon sa kanila.

Sa puntong ito, nais kong linawin na ipinagbabawal ng Section 23(a)(l) ang pagkakait ng mahalagang kaalaman, pagbabawal sa pagpapalaganap nito o sadyaang pagbibigay ng maling impormasyon kaugnay ng mga programa at serbisyo ukol sa reproductive health, karapatan ng lahat sa informed choice at ang paggarantiya ng pamahalaan sa ligtas, mabisa, abot-kaya, de-kalidad, naaayon sa batas at hindi abortifacient na family planning methods.

Sa kabilang banda, ipinagbabawal naman ng Section 23(a)(2) ang pagtangging magsagawa ng ligtas at naaayon sa batas na reproductive health procedures dahil lamang sa ang taong naghahangad nito, bagama't nasa hustong edad, ay hindi makapagpakita ng pahintulot ng kanyang asawa o magulang. Hindi nito ipinagbabawal ang pagtangging magsagawa ng reproductive health procedures dahil sa kanilang religious beliefs.

Ang mga health care service providers na tinutukoy sa Section 23(a)(l) at Section 23(a)(2) ay hindi ang mga conscientious objectors. Kung conscientious objector ang isang health care service provider, maaari na siyang tumanggi sa unang pagkakataon pa lamang, at wala na siyang oportunidad para magbigay ng maling impormasyon kaugnay ng mga programa at serbisyo ukol sa reproductive health dahil tinanggihan na niya ang pasyente. Gayundin, wala nang oportunidad ang mga conscientious objectors na tumangging magsagawa ng ligtas at naaayon sa batas na reproductive health procedures sa isang may-asawa o menor de edad dahil sa kakulangan ng pahintulot ng asawa o magulang. Paglapit pa lamang ng pasyente sa kanya na humihingi ng serbisyo ukol sa reproductive health, maaari na siyang tumanggi, at ang pagtangging ito ay dahil sa kanyang religious beliefs, hindi dahil sa kawalan ng pahintulot.

Kung conscientious objector ang health care service provider, mapapasailalim siya sa Section 23(a)(3) na nagsasabing isasaalang-alang at irerespeto ang kanilang ethical o religious beliefs. Ayon dito, bagama't maaaring parusahan ang iba kung sila ay tatangging magsagawa ng de-kalidad na health care services o tatangging magbigay ng mahalagang kaalaman ukol dito, pinapayagan ang mga conscientious objector na tumanggi kung wala sa emergency condition o hindi serious case ang pasyente. Hindi parurusahan ng batas ang mga conscientious objector na tumanggi, at kabilang ito sa exemption na inilatag ng RH Law para sa kanila.

Sa gayon, malinaw ang legislative intent ng Kongreso na hindi mapapasailalim ang mga conscientious objector sa Section 23(a)(l) at Section 23(a)(2). Maaari nang tumanggi sa pasyenteng wala sa emergency condition o hindi serious case sa unang pagkakataon pa lamang ang sinumang health care service provider, pribado o pampubliko, na tumututol sa paghahatid at pagsasagawa ng reproductive health services at procedures at pagbibigay ng mahalagang kaalaman ukol dito dahil sa kanilang religious beliefs.

Nguni't, kalakip ng karapatan ng pagtanggi ng mga conscientious objector ang katungkulang ituro ang mga pasyenteng wala sa emergency condition o hindi serious case sa ibang pinakamalapit na health facility kung saan nila makukuha ang serbisyo at mahalagang kaalaman ukol sa reproductive health na ninanais nila.

FDA Certification sa Section 9

Ayon sa Decision, "empty as it is absurd"38 ang huling pangungusap sa unang talata ng Section 939 ng RH Law na nag-uutos na makukuha lamang sa kondisyong hindi gagamitin bilang abortifacient ang mga produkto na kasama o isasama sa essential drugs list (EDL). Ayon sa kanila, hindi naman maaaring naroroon ang FDA upang maglabas ng certification ukol dito sa tuwing ipamamahagi ang contraceptive. Sa halip, iminungkahi na baguhin ang pagkakasulat ng pangungusap upang linawin na walang kahit anong abortifacient na isasama o maisasama sa EDL.

Noong oral arguments, nilinaw ni A ssociate Justice Mariano C. Del Castillo ang bagay na ito sa Solicitor General, partikular na sa paraan kung paano masisiguro ng pamahalaan na hindi gagamitin bilang abortifacient ang mga produkto sa EDL:

JUSTICE DEL CASTILLO:

Just one question, Counsel. The RH Law allows the availability of these contraceptives provided they will not be used as an abortifacient.

SOL. GEN. JARDELEZA:

Yes, Your Honor.

JUSTICE DEL CASTILLO:

So there's a possibility that these contraceptives, these drugs and devices may be used as an abortifacient?

SOL. GEN. JARDELEZA:

No, Your Honor, there will be [sic] not be a possibility. After you have the FDA certifying that ... (interrupted)

JUSTICE DEL CASTILLO:

Yes, but why does the law still [say] that, " ... provided that they will not be used as an abortifacient [?]"

SOL. GEN. JARDELEZA:

The context of that, Your Honor, is that, there are certain drugs which are abortifacients.

JUSTICE DEL CASTILLO:

So how then can . .. how can a government make sure that these drugs will not be used as an abortifacient?

SOL. GEN. JARDELEZA:

To the best of my understanding, Your Honor, for example, a woman who is pregnant and then the doctor says there is no more fetal heartbeat then the unborn or the fe tus is dead. The doctor will have to induce abortion. Sometimes you do this by curettage, which I think, incision. But many times there are drugs that are abortifacient; they are life-saving because then you bring the woman to a health center, the baby is dead, you induce abortion, the doctors can correct me, once that drug, I think, is called oxytoxin. So any hospital has oxytoxin in its pharmacy because you need that as a life-saving drug. That is the context of that provision which says, " ... should not be used as an abortifacient." Meaning, just like restricted drugs, oxytoxin will only be used in a hospital to be used for therapeutic abortion, that I believe, Your Honor, is the meaning of that, " ... cannot be used as an abortifacient." Meaning, the National Drug Formulary contains oxytoxin, I believe, today but that is to be used under certain very very restrictive conditions, that's the meaning of " ... should not be used as an abortifacient." Meaning, a woman who is healthy in the pregnancy cannot go to a doctor and the doctor will say, "You want an abortion, I'll give you oxytoxin", that cannot be done, Your Honor; that's my understanding.

JUSTICE DEL CASTILLO:

So when there's only a choice between the life of the mother and the life of the child.

SOL. GEN. JARDELEZA:

Yes, that's my understanding. The best example is the, the monitor shows there is no more fetal heartbeat. If you don't induce abortion, the mother will die.

JUSTICE DEL CASTILLO:

Thank you, counsel.40 (Emphases supplied)

Sa gayon, maaaring isama ng FDA ang ilang maaaring gamiting abortifacients, tulad ng oxytoxin, sa National Drug Formulary dahil ang mga ito ay ginagamit upang mailabas ang patay na sanggol mula sa sinapupunan ng ina. Ginagawa ito upang mailigtas ang buhay ng ina na maaaring mameligro bunga ng impeksiyon kung hahayaang nasa loob ang patay na sanggol. Nagpapahiwatig lamang ang huling pangungusap sa unang talata ng Section 9 ng legislative intent na kahit may mga abortifacients na isasama sa EDL, ipinagbabawal na gamitin ang mga ito bilang abortifacient, o paraan upang mapatay ang malusog na sanggol sa sinapupunan.

Pahintulot ng Asawa

Mayroong pangunahing karapatan, at pangangailangan, ang lahat ng tao sa sariling pagpapasiya. Biniyayaan ng kaisipan ang lahat ng tao upang malayang maipahayag ang kanyang saloobin, makabuo ng sariling pananaw at makapagpasiya para sa kanyang kinabukasan.

Sa ilalim ng ating Saligang Batas, pinangangalagaan ng due process clause ang garantiya ng kalayaan sa bawat Pilipino. Nagsasabi ito na walang sinuman ang maaaring bawian ng buhay, kalayaan at ari-arian nang hindi ayon sa paraang inilatag sa batas. Panangga ng mga mamamayan ang due process clause sa hindi makatuwirang pamamalakad at pagsamsam ng pamahalaan. Gayunpaman, "[t]he Due Process Clause guarantees more than fair process, and the 'liberty' it protects includes more than the absence of physical restraint."41 Nagtatakda ang due process clause ng limitasyon sa kapangyarihan ng pamahalaan pagdating sa mga karapatan ng mamamayan.42 Bukod sa mga karapatang ginagarantiya ng Bill of Rights, saklaw ng due process clause ang lahat ng bahagi ng buhay ng tao. Kabilang na rito ang karapatan ng sariling pagpapasiya.

May nakapagsabi na "[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. "43 Sa katunayan, "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body."44

Ayon sa Decision, isang pribadong paksa na dapat talakayin ng mag-asawa ang desisyon sa usapin ng reproductive health, at hindi maaaring mapunta lamang sa asawang sasailalim dito ang pagpapasiya. Hinay-hinay tayo. Hindi naman ipinagbabawal ng RH Law ang pagsanib ng pasiya ng mag-asawa kaya't hindi dapat sabihin na nakapaninira ng pagsasamahan ng mag-asawa ang karapatan ng may-katawan na magpasiya ukol sa reproductive health. Nguni't sa panahon ng di-pagkakasundo ng pasiya, walang ibang makatuwirang sitwasyon kundi kilalanin ang karapatan ng taong may-katawan na magpasiya.45 Hindi nawawalan ng karapatan ang tao dahil lamang sa pag-aasawa. Hangga't hindi ito labag sa batas, may kalayaan ang bawat isa na gawin ang kanyang nais at magpasiya ayon sa makabubuti para sa kanyang sarili. Hindi isinusuko sa asawa sa oras ng kasal ang pagpapasiya ukol sa sariling katawan. Kung hindi, bubuwagin nito ang prinsipyo sa likod ng batas laban sa violence against women.

Sa ilalim ng RH Law, ihahandog sa lahat ang mahalagang impormasyon ukol sa modern family planning methods. Ipinapalagay din na paglilimian ng asawang sasailalim sa procedure ang mga magiging epekto nito sa kanya at sa kanyang mahal sa buhay. Kung magdesisyon siya na sumailalim sa napiling reproductive health procedure, hindi ito dapat hadlangan ng sinuman. Bahagi pa rin ito ng informed consent na pundasyon ng RH Law.

Walang anumang nakasulat sa RH Law na nag-aalis sa mag-asawa ng kanilang karapatang bumuo ng pamilya. Sa katunayan, tinitiyak nito na ang mga maralita na nagnanais magkaroon ng anak ay makikinabang sa mga payo, kagamitan at nararapat na procedures para matulungan silang maglihi at maparami ang mga anak. Walang anumang nakasulat sa batas na nagpapahintulot sa pamahalaan na manghimasok sa pagpapasiya "[that] belongs exclusively to, and {is] shared by, both spouses as one cohesive unit as they chart their own destiny."46 Walang anumang nakasulat sa RH Law na humahadlang sa pagsali ng asawa sa pagtimbang ng mga pagpipiliang modern family planning methods, at pagpapasiya kung ano ang pinakamabuti para sa kanyang asawa. Kung may epekto man ang RH Law, ito ay ang pagpapatibay ng makatotohanang sanggunian sa pagitan ng mag-asawang pantay na magpapasiya ukol sa isang bagay na magtatakda ng kanilang kinabukasan.

Sa pamamagitan ng pagpapahalaga sa pangunahing pasiya ng asawang sasailalim sa reproductive health procedure, pinaiigting lamang ng RH Law ang pangangalaga sa pangunahing karapatan ng bawat tao na magpasiya ukol sa kanyang sariling katawan. Sa pamamagitan din nito, naglalatag ang RH Law ng proteksiyon para sa mga medical professionals laban sa mga asunto at panliligalig bunga ng pagkuwestiyon o paghamon kung bakit nila isinagawa ang reproductive health procedure sa kabila ng kawalan ng pahintulot ng asawa.

Pahintulot ng Magulang

Itinuturing din ng Decision na "[e]qually deplorable"47 ang bahagi ng RH Law na nagbibigay-daan sa mga menor de edad na may anak o nagkaroon ng miscarriage na makinabang sa modern family planning methods kahit walang pahintulot ang kanilang mga magulang. Ayon dito, pinuputol ng Section 7 ang parental authority sa mga menor de edad "just because there is a need to tame population growth."48

Hindi angkop na manghimasok ang Korte Suprema sa katanungan kung ang RH Law ay isang population control measure sapagka't ang Kongreso lamang ang makasasagot sa tanong kung ano ang nag-udyok dito sa pagbuo ng nasabing batas. Ang tanging dapat pagtuunan ng pansin ng Korte Suprema ay kung ang batas at ang mga nilalaman nito ay alinsunod sa itinatakda ng Saligang Batas. Masasabi nating ispekulasyon lamang ang paghusga sa hangarin ng Kongreso na handa itong sirain ang parental authority upang isulong lamang ang population control. Pasintabi po, hindi maaaring ganito ang tono ng Korte Suprema patungo sa Kongreso.

Kinikilala ng RH Law na hindi lamang edad ng isang tao ang tanging palatandaan upang mahandugan ng fa mily planning services. Batid nito ang pangkasalukuyang sitwasyon ng paglaganap ng maagang pagkamulat at pagsubok ng mga kabataan sa kanilang sekswalidad. Nangangailangan ding mabigyan ng kaalaman, at kung kinakailangan, mahandugan ng modern family planning services kung ito ay kanilang gugustuhin, ang mga menor de edad na nanganak o nagkaroon ng miscarriage . Bilang isang hakbang sa pangangalaga ng pangkalahatang kalusugan, ang pagbibigay ng modern fam ily planning services sa mga menor de edad na ito ay daan upang maunawaan nila ang mga kahihinatnan at kaukulang pananagutan ng pagiging isang magulang, gayong nabuntis na sila, pati na ang pagbuo ng pamilya.

Hindi akma ang antas ng pagpapahalaga sa parental authority ng Decision, na sa pangamba ng D ecision ay mawawala dahil lamang sa pakinabang ng menor de edad sa family planning services nang walang pahintulot ng kanilang magulang.

"[P]arental authority and responsibility include the caring for and rearing of unemancipated children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being."49 Pinag-uukulan ng ilang karapatan at tungkulin ang mga magulang kaugnay sa kanilang mga anak na wala pa sa tamang gulang.50 Maaaring talikuran o ilipat ang parental authority at responsibility ayon lamang sa mga halimbawang nakasaad sa batas.51 Mabibinbin o mapuputol ito ayon lamang sa mga sitwasyong nakasaad sa Family Code.52

Walang anumang nakasulat sa RH Law na nagsasabing napuputol ang parental authority kapag ang menor de edad ay may anak na o nagkaroon ng miscarriage. Hindi nito dinadagdagan ang mga halimbawang nakasaad sa Family Code ukol sa pagkawala ng parental authority. Walang anumang nakasulat sa batas na nagbibigay-kapangyarihan sa pamahalaan upang humalili sa ina at ama sa pagdamay at pagtugon sa mga pangangailangan ng kanilang mga menor de edad. Kailanma'y hindi kaya at hindi maaaring gawin ito ng pamahalaan, hindi lamang dahil hindi ito praktikal nguni 't dahil walang makatutumbas sa inaasahang pagmamahal ng magulang. Sa ganitong pagsubok sa buhay ng isang menor de edad, higit lalo niyang kailangan ang "comfort, care, advice and guidance from her own parents."53 Sa ilalim ng RH Law, hindi pinagbabawalan ang mga menor de edad na may anak o nagkaroon ng miscarriage na humingi ng payo sa kanilang magulang, at hindi pinagbabawalan ang mga magulang na magbigay nito. Ipinapalagay na hangad lamang ng mga magulang ang makabubuti para sa kanilang anak.

Sa pagsasabi na hindi kailangan ang parental consent ng mga menor de edad na may anak o nagkaroon ng miscarriage bago mabigyan ang mga ito ng modern family planning services, pinanghihimasukan ng pamahalaan ang ugnayan sa pagitan ng menor de edad at ang nilapitan nitong medical health professional. Kadalasan, pinagkakaitan ng reproductive health services ng mga pribado at pampublikong health professionals ang mga menor de edad dahil sa kai sipang masyado pa silang mga bata para magkaroon ng kaalaman sa mga bagay ukol sa kanilang sekswalidad. Ang paghingi ng parental consent ang madalas na dahilan upang tanggihan ang ganitong pagsangguni ng mga kabataan. Minsan nga, hinihiya pa ang mga ito. Nguni't kailangang tandaan na nagdalang-tao na ang mga menor de edad na ito, at hindi na masasabing wala silang muwang pagdating sa mga bagay na sekswal.

Bahagi ng RH Law ang paninindigan ng pamahalaan na ang mga kabataan ay active rights holders, at katungkulan ng pamahalaan na siguraduhin na matatamasa nila ang kanilang mga karapatan nang walang diskriminasyon.54 Upang mapangalagaan ang karapatan ng mga kabataan na magkaroon ng mahalagang kaalaman ukol sa kanilang kalusugan, ipinag-uutos ng RH Law ang pagtuturo ng age- and development-appropriate reproductive health education55 sa lahat ng pribado at pampublikong paaralan.

Naaayong linawin na sakop ng kautusang magturo ng reproductive health education sa kanilang mga mag-aaral ang mga pribadong paaralan. Opsyonal ang paggamit ng curriculum na bubuuin ng Department of Education. Ang nasabing curriculum ay gagamitin ng mga pampublikong paaralan at maaaring gamitin ng mga pribadong paaralan.

Ito ang paglilinaw ni Representative Edcel C. Lagman kaugnay sa giit ng petitioners na lumalabag sa equal protection clause ng Saligang Batas ang RH Law dahil ginagawa nitong mandatory sa pampublikong paaralan at opsyonal sa pribadong paaralan ang reproductive health education . Ayon sa kanya:

143. xx x [A]ge and development appropriate RH education is mandatory in formal and non-formal educational system without distinction whether they are public or private, where adolescents are enrolled. Clearly, private schools are not exempt from affording their adolescent pupils/students [with] proper and appropriate RH education.

144. The difference only pertains to the RH curriculum which shall be formulated by DepEd which "shall be used by public achools and may be adopted by private schools."

145. If the DepEd curriculum is not adopted by private schools, they can form ulate their own curriculum subject to the review and approval of the DepEd which has jurisdiction over private schools. Private schools are accorded equal flexibility in adopting their own curriculum after requisite consultation as provided m the RH Law.56 (Emphases supplied)

Bukod sa pagbibigay sa kanila ng age- and development-appropriate reproductive health education, ginagawaran din ng dagdag na karapatan ang mga menor de edad na may anak o nagkaroon ng miscarriage na makinabang sa mga reproductive health services na inihahandog ng pamahalaan.

Kaagad na mauunawaan ang katuwiran kung bakit may dagdag na karapatan na ibinibigay sa mga menor de edad na may anak o nagkaroon ng miscarriage. Kung ang hindi pa nagbubuntis ay may karapatan sa akmang kaalaman, higit na may karapatan ang nagbuntis na. Naglahad ang Committee on the Rights of the Child na "[a}dolescent girls should have access to information on the harm that early marriage and early pregnancy can cause, and those who become pregnant should have access to health services that are sensitive to their rights and particular needs."57 Batay sa karapatan ng mga kabataan na malayang maihayag ang kanilang pananaw sa mga bagay na may kinalaman sa kanila, nararapat na isaalang-alang ang kanilang saloobin.58 Kung mababatid na may tamang kamalayan at nasa hustong pag-iisip ang menor de edad na may anak o nagkaroon ng miscarriage, sapat na na ibigay nila ang kanilang informed consent.59

Public officers at skilled health professionals

Hindi ako sang-ayon sa Decision na walang totoong pagkakaiba sa pagitan ng pribado at pampublikong health officers. Naniniwala ako na napakalaki ng pagkakaiba sa pagitan nila at nagmumula ito sa kadahilanang inaasahan ang mga pampublikong health officers bilang frontline sa paghahatid ng serbisyong pangkalusugan.60 Bilang public officers, may pananagutan sila sa taong-bayan sa lahat ng oras, at nararapat na maglingkod sila nang may dangal, katapatan, kahusayan, ganap-taglay ang pagiging makabayan at makatarungan, at payak ang pamumuhay.61 Maaari din nating banggitin na ang sambayanan ang nagpapasahod sa kanila.

Sa pamamagitan ng paglilingkod ng mga pampublikong health officers naisasakatuparan ng pamahalaan ang tungkulin nito na pangalagaan ang kalusugan ng mga mamamayan, lalo na ang mga maralitang bahagya na ngang makabili ng sapat na pagkain sa araw-araw.

Sa puntong ito, binibigyang-diin na maaaring maging conscientious objectors ang mga pampublikong health officers. Malinaw ito sa RH Law mismo na naglatag ng karapatan sa conscientious obj ection nang walang pasubali sa pagitan ng pribado at pampublikong health professionals. Pinagtitibay ito ng IRR ng RH Law na nagsasabing maaring maging conscientious objectors ang mga pampublikong skilled health professionals sa ilalim ng bahaging ito:

SECTION 5.24. Public Skilled Health Professional as a Conscientious Objector. - In order to legally refuse to deliver reproductive health care services or information as a conscientious objector, a public skilled health professional shall comply with the following requirements:

a) The skilled health professional shall explain to the client the limited range of services he/she can provide;

b) Extraordinary diligence shall be exerted to refer the client seeking care to another skilled health professional or volunteer willing and capable of delivering the desired reproductive health care service within the same facility;

c) If within the same health facility, there is no other skilled health professional or volunteer willing and capable of delivering the desired reproductive health care service, the conscientious objector shall refer the client to another specific health facil ity or provider that is conveniently accessible in consideration of the client's travel arrangement s and financial capacity;

d) Written documentation of compliance with the preceding requirements; and

e) Other requirements as determined by the DOH.

In the event where the public skilled health professional cannot comply wit h all of the above requirements, he or she shall deliver the client's desired reproductive health care service or information without further delay. (Emphasis supplied)

Sa gayon, hindi karapat-dapat na sabihing lumalabag sa equal protection clause ng ating Saligang Batas ang RH Law at IRR nito. Kaugnay nito, tinutuligsa ang sumusunod na bahagi ng Section 5 .24 ng IRR ng RH Law:

Provided, That skilled health professionals such as provincial, city, or municipal health officers, chiefs of hospital, head nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the duty to implement the provisions of the RPRH Act and these Rules, cannot be considered as conscientious objectors. (Emphasis suppl ied)

Itinatadhana nito na hindi maaaring maging conscientious objectors ang mga pampublikong skilled health professionals na mismong inatasang magsagawa ng mga kautusan at programa sa Halim ng RH Law at IRR nito. Malinaw ang dahilan nito. Walang makabuluhang pagsasakatuparan ng RH Law, at pangangalaga sa reproductive health ng sambayanan, kung hahayaan ang mga provincial, city, o municipal health officers, chiefs of hospital, head nurses at supervising midwives - iyong mga itinuturing na nasa front line ng paghahatid ng serbisyong pangkalusugan - na tumangging magbigay ng reproductive health care services at mahalagang kaalaman ukol dito.

Makikitang hindi discriminatory ang nasabing probisyon kapag inilapat ang test of reasonableness.62 Sakop lamang nito ang mga public skilled health professionals na inatasang isagawa ang mga kautusan at programa sa ilalim ng RH Law at IRR nito. Makikita na iyon lamang mga may management prerogative at kapangyarihang mag-impluwensiya ng pamamalakad ng kanilang institusyon ang hindi maaaring tumangging maghatid ng reproductive health care services at mahalagang kaalaman ukol dito. Malinaw ang pagkakaiba nila sa ibang pampublikong health professionals na maaaring maging conscientious objectors.

Malinaw din na may kaugnayan sa layunin ng RH Law ang pagbubukod sa mga skilled health professionals gaya ng provincial, city, o municipal health officers, chiefs of hospital, head nurses at supervising midwives . Walang sinuman ang makapagsasabi na ito ay "palpably arbitrary or capricious"63 gayong ang sakop nito ay iyon lamang mga itinuturing na pinuno ng mga pampublikong institusyon. Walang dahilan upang ipangamba na ipatutupad lamang ang pagbubukod na ito sa umiiral na kalagayan o kaya hindi ito ipatutupad sa lahat ng provincial, city, o municipal health officers, chiefs of hospital, head nurses at supervising midwives .

Bilang mga kawani ng pamahalaan, nalalagay sa isang pambihirang katayuan ang mga public officers para isakatuparan ang mga nilalayon ng pamahalaan. Dahil dito, malaki ang nakaatang na responsibilidad sa kanila upang ilunsad ang mga balakin ng pamahalaan. Pagdating sa reproductive health programs, magiging kahangalan para sa pamahalaan kung hahayaan nito na sariling mga kawani ang humadlang sa pamamagitan ng paglalatag ng mga salungat na patakaran gamit ang makinarya ng pamahalaan. Samakatuwid, hindi dapat payagang tumalikod sa tungkulin ang isang public officer na mismong inatasang isagawa ang mga kautusan at programa sa ilalim ng RH Law at IRR nito, o biguin nito ang paglulunsad ng isang reproductive health program.

PhilHealth Accreditation

Sa ilalim ng Section 17 ng RH Law, hinihikayat ang mga pribadong reproductive health care service providers, gaya ng gynecologists at obstetricians, na magbigay ng libreng reproductive health care services katumbas ng 48 oras bawat taon sa mga maralitang pasyente. Itinatakda din ng Section 17 na kailangang magbigay ng nasabing serbisyo katumbas ng 48 oras ang mga medical professionals upang magkaroon sila ng PhilHealth accreditation. Ayon sa Decision, nararapat na bigyan din ng exemption ang mga conscientious objectors sa panuntunang ito dahil sa kanilang religious beliefs na nagbabawal sa kanilang magbigay ng serbisyo ukol sa reproductive health.

Ayon sa petitioners, tinututulan nila ang pagpapalaganap ng contraceptives , na itinuturing nilang likas na masama. Hindi nila tinututulan ang pagpapahalaga sa reproductive health ng mga mamamayan, partikular na ang mga maralita. Tinutukoy sa Section 17 ang pagbibigay ng libreng reproductive health care services.

Batay sa RH Law, tumutukoy ang reproductive health care sa paghahatid ng lahat ng serbisyo, kagamitan, pamamaraan at fac ilities na makatutulong sa ikabubuti ng reproductive health sa pamamagitan ng pagtugon sa mga sakit na kaugnay nito.64

Kasama dito ang pagpapanatili ng sexual health upang mapabuti ang antas ng buhay at personal relations ng mga mamamayan. Saklaw ng reproductive health care ang mga sumusunod na bahagi nito:

1) Family planning information and services which shall include as a first priority mak ing wo men of reproductive age full y aware of their respective cycles to make them aware of when fertilization is highly probable, as well as highly improbable;

2) Maternal, infant and child health and nutrition, including breastfeeding;

3) Proscription of abortion and management of abortion complications;

4) Adolescent and youth reproductive health guidance and counseling;

5) Prevention, treatment and management of reproductive tract infections (RTis), HIV and AIDS and other sexuall y transmittable infections (STis);

6) Elimination of violence against women and children and other forms of sexual and gender-based violence;

7) Education and counseling on sexuality and reproductive health;

8) Treatment of breast and reproductive tract cancers and other gynecological conditions and disorders;

9) Male responsibility and involvement and men's reproductive health;

10) Prevention, treatment and management of infertility and sexual dysfunction;

11) Reproductive health education for the adolescents; and

12) Mental health aspect of reproductive health care.65

Makikita sa listahang ito ang lawak ng saklaw ng reproductive health care na tinutukoy sa Section 1 7. Masasabing isa lamang sa family planning information and services ang contraceptives at contraception na tinututulan ng mga conscientious objectors. Mayroon pang labing-isang bahagi ng reproductive health care na kasunod nito. Maaaring gamitin ng mga reproductive health care service providers ang mga libreng serbisyo na mapapaloob sa anumang bahagi ng reproductive health care upang mabuo ang 48 oras na kakailanganin nila para sa kanilang PhilHealth accreditation . Maaari ngang ibuhos ng conscientious objector ang lahat ng 48 oras sa pagpapalaganap ng natural family planning method. Alalahanin ng lahat na pribilehiyo at hindi karapatan ang magkaroon ng PhilHealth accreditation kaya't tama lang na isukli ng gynecologists at obstetricians ang 48 oras na pro bona service sa maralita upang mapangalagaan ang kanilang reproductive health.

Kung tutuusin, reproductive health care ng mga pasyente ang pangunahing pinagtutuunan ng pansin ng mga gynecologists at obstetricians. Kung bibigyan sila ng exemption sa Section 17 dahil conscientious objector sila, ang tanging magiging epekto nito ay hindi nila kakailanganing magbigay ng anumang libreng serbisyo. Kung gayon, mawawalan ng saysay ang layunin ng pamahalaan sa ilalim ng RH Law na ihatid sa mga maralitang mamamayan ang kadalubhasaan ng mga pribadong reproductive health care service providers.

Pahuling Pasabi

Walang pinapanigan ang Korte Suprema kundi ang Saligang Batas, at pinakinggan ang lahat ng dumulog dito sa usapin ng RH Law. Hati-hati ang opinyon pagdating sa reproductive health at family planning. Halimbawa, bagama't may mga pagtutol ang bahagi ng Simbahang Katolika sa reproductive health at family planning, itinuturing naman itong alinsunod sa mga aral ng Islam. Ayon safatwah na inilabas ng Assembly of Darul-Iftah of the Philippines kaugnay sa reproductive health at family planning, walang kasulatang napapaloob sa Qur' an na nagbabawal sa pagpigil at pag-aagwat sa pagbubuntis at pagbabawas sa dami ng anak.

Ayon din sa kanila, hindi salungat sa konsiyensiya ang family planning. Sa katunayan, itinataguyod ito ng Shariah. Itinakda ng Qur'an na kailangang pasusuhin ng ina ang sanggol hanggang ito ay dalawang taong gulang, at nagbabala ang Propeta laban sa pagpapasuso ng inang nagdadalang-tao. Malinaw dito ang layuning pag-aagwat ng pagbubuntis, kung saan kinakailangang hindi mabuntis ang ina sa loob ng dalawang taon na ito ay nagpapasuso.

Pinapayagan ang lahat ng methods of contraception hangga't ang mga ito ay ligtas, naaayon sa batas, aprobado ng medical professionals at alinsunod sa Islamic Shariah. Wala ring nakikitang pagtutol ang Shariah sa pakahulugan ng International Conference on Population and Development sa reproductive health,66 patina ang mga prinsipyo nito ukol sa pagpapasiya sa dami at pag-aagwat ng mga anak, pagkakaroon ng kaalaman ukol sa sariling sekswalidad, pagiging ligtas sa mga sakit kaugnay sa reproduction, at pagkakaroon ng safe at satisfying sex life sa pagitan ng mag-asawa. Kung susukatin ang mga adhikain ng RH Law batay sa religious freedom ng mga Muslim, na bumubuo sa limang porsiyento ng mga Filipino, wala itong hatid na ligalig o pasanin.

Sa likod ng karapatan sa malayang pagsamba at pagpapahayag ng relihiyon ay ang pagrespeto sa paniniwala ng iba. Hati-hati maging ang mga opinyon ng mga Katoliko pagdating sa reproductive health at family planning. Malaking bahagi ng mga Katoliko ang sumusuporta sa RH Law at mga layunin nito. Dahil dito, walang maituturing na iisang awtoridad pagdating sa usaping ito kundi ang Saligang Batas. Ito ang nag-iisang batayan na isasaalang-alang upang makarating ang Korte Suprema sa konklusyong makatarungan para sa lahat.

AKO AY SANG-AYON sa Decision na ang SECTIONS 4(A), 9, 15, 17 AT 24 NG RH LAW AY HINDI LABAG SA SALIGANG BATAS. SANG-AYON DIN AKO na ang RH LAW AY HINDI LABAG SA RIGHT TO LIFE, RIGHT TO HEALTH, RIGHT TO EQUAL PROTECTION OF THE LAW AT RIGHT TO DUE PROCESS OF THE LAW ng mga mamamayan. Bukod dito, SANG-A YON AKO NA ANG RH LAW A Y HINDI LABAG SA PRINCIPLE OF NON-DELEGATION OF LEGISLATIVE AUTHORITY, ONE SUBJECT - ONE BILL RULE AT AWTONOMIYA ng mga pamahalaang lokal at ng Autonomous Region of Muslim Mindanao sa ilalim ng Saligang Batas.

SANG-AYON AKO na HINDI PA NAPAPANAHON UPANG MAGPAHAYAG ANG KORTE SUPREMA UKOL SA PAGPAPAWALANG-BISA NG SECTION 14 dahil hindi pa nakabubuo ng curriculum ang Department of Education. Hindi pa rin napapanahon upang ipahayag kung ang RH Law ay labag sa right to health ng mga mamamayan dahil wala pang contraceptive na naisusumite para sa pagsusuri ng FDA sa ilalim ng RH Law.

SANG-AYON AKO na nararapat na IPAWALANG-BISA ANG SECTION 3.0l(A) AT 3.01(J) NG IRR NG RH LAW dahil nagdadagdag ito ng salitang "primarily" sa kahulugan ng abortifacient, na hindi naman ayon sa mga titik ng Section 4(a) ng RH Law.

GAYUNPAMAN, hindi nito maaapektuhan ang paniniwala kong ang LAHAT NG MGA PROBISYON NG RH LAW NA TINUTULIGSA NG PETITIONERS AY PAWANG KONSTITUSYONAL.

SAMAKA TUWID, ako ay bumoboto para ipahayag na HINDI LABAG SA SALIGANG BATAS ang SECTIONS 7, 17, 23(A)(1), 23(A)(2)(I), 23(A)(2)(11), 23(A)(3) AT 23(B) NG RH LAW.

MARIA LOURDES P.A. SERENO
Punong Mahistrada


Footnotes

1 Art icle II, Section 12 .

2 Barangay Association for National Advancement and Transparency (BANAT) Party-List v. COMELEC, G.R. No. 177508, 7 August 2009, 595 SCRA 477; Samson v. Aguirre, 373 Phil. 668 (1999); US v. Grant, 18 Phil. 122 (1910).

3 Insular lumber Co. v. Court of Tax Appeals, 192 Phil. 221 (1981); Municipality of Jose Panganiban, Camarines Norte v. Shell Company, 124 Phil. 197 (1966); Yu Cong Eng v. Trinidad, 47 Phil. 385 (1925).

4 Garcia v. COMELEC, G.R. No. 111511, 5 October 1993, 227 SCRA 100.

5 Id.

6 Lawyers Against Monopoly and Poverty (LAMP) v. Secretary of Budget and Management, G.R. No. 164987, 24 April 2012, 670 SCRA 373; Cawaling, Jr. v. COMELEC, 420 Phil. 524 (2001); Dimaporo v. Mitra, Jr., 279 Phil. 843 (1991).

7 Cawaling v. COMELEC, supra note 7.

8 Basco v. ?ACCOR, 274 Phil. 323 (1991).

9 Section 7. Access to Family Planning. - All accredited public health facilities shall provide a full range of modern family planning methods, which shall also include medical consultations, supplies and necessary and reasonable procedures for poor and marg inalized couples having infertility issues who desire to have children: Provided, That family planning services shall likewise be extended by private health facilities to paying patients with the option to grant free care and services to indigents, except in the case of non-maternity specialty hospitals and hospitals owned and operated by a religious group, but they have the option to provide such full range of modern family planning methods: Provided, further, That these hospitals shall immediately refer the person seeking such care and services to another health facility which is conveniently accessible: Provided, finally, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344.

No person shall be denied information and access to family planning services, whether natural or artificial: Provided, That minors will not be allowed access to modem methods of family planning without written consent from their parents or guardian/s except when the minor is a lready a parent or has had a miscarriage.

10 Sa ilalim ng R.A. 8344 (An Act Penalizing the Refusal of Hospitals and Medical Clinics to Administer Appropriate Initial Medical Treatment and Support in Emergency or Serious Cases), sinasabi na:

SECTION 2. Section 2 of Batas Pambansa Bilang 702 is hereby deleted and in place thereof, new sections 2, 3 and 4 are added, to read as follows:

"SEC. 2. For purposes of this Act, the following definition sshall govern:

"(a) 'Emergency' - a condition or state of a patient wherein based on the objective findings of a prudent medical officer on duty for the day there is immediate danger and where delay in initial support and treatment may cause loss of life or cause permanent disability to the patient. (Emphases supplied)

11 Ayon sa IRR ng RH Law:

Section 5.21. Family planning services shall likewise be extended by private health facilities to paying patients with the option to grant free care and services to indigents, except in case of non-maternity specialty hospitals and hospitals operated by a religious group, but have the option to provide such full range of modern family planning methods; Provided further, That these hospitals shall immediately refer the person seeking such care and services to another health facility which is conveniently accessible; Provided finally, That the person is not in an emergency condition or serious case as defined in RA 8344.

Section 5.22. Exemption of Private Hospitals from Providing Family Planning Services. - Private health facilities shall provide a full range of modern family planning methods to clients, unless the hospital is owned and operated by a religious group, or is classified as a non-maternity specialty hospital, as part of their annual licensing and accreditation requirements. In order to receive exemption from providing the full range of modern family planning methods, the health care facility must comply with the following requirements:

a) Submission of proof of hospital ownership and management by a religious group or its status as a non-matem ity specialty hospital;

b) Submission to the DOH of an affidavit stating the modern family planning methods that the facility refuses to provide and the reasons for its objection;

c) Posting of a notice at the entrance of the facility, in a prominent location and using a clear/legible layout and font, enumerating the reproductive health services the facility does not provide; and

d) Other requirements as determined by the DOH.

Within sixty (60) days from the effectivity of these Rules, the DOH shall develop guidelines for the implementation of this provision.

12 Ayon sa IRR ng RH Law:

Section 4.06. Access to Family Planning Information and Services. - No person shall be denied information and access to family planning services, whether natural or artificial: Provided, That minors will not be allowed access to modern methods of family planning without written consent from their parents or guardian/s except when the minor is already a parent or has had a miscarriage.

Section 4.07. Access of Minors to Family Planning Services. - Any minor who consults at health care facilities shall be given age-appropriate counseling on responsible parenthood and reproductive health. Health care facilities shall dispense health products and perform procedures for family planning: Provided,

That in public health facilities, any of the following conditions are met:

a) The minor presents written consent from a parent or guardian; or

b) The minor has had a previous pregnancy or is a lready a parent as proven by any one of the following circumstances, among others:

1. Written documentation from a skilled health professional;

2. Documentation through ancillary examinations such as ultrasound;

3. Written manifestation from a guardian, local social welfare and development officer, local government official or local health volunteer; or

4. Accompanied personally by a parent, grandparent, or guardian.

Provided further, That consent shall not be required in the case of abused or exploited minors, where the parent or the person exercising parental authority is the respondent, accused, or convicted perpetrator as certified by the proper prosecutorial office or the court.

Provided further, That in the absence of any parent or legal guardian, written consent shall be obtained only for elective surgical procedures from the grandparents, and in their default, the oldest brother or sister who is at least 18 years of age or the relative who has the actual custody of the child, or authorized representatives of children's homes, orphanages, and similar institutions duly accredited by the proper government agency, among others. In no case shall consent be required in emergency or serious cases as defined in RA 8344.

Provided finally, That in case a minor satisfies any of the above conditions but is still refused access to information and/or services, the minor may direct complaints to the designated Reproductive Health Officer (RHO) of the facility. Complaints shall be acted upon immediately.

13 Section 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(I) Knowingly withhold information or restrict the dissemination thereof, and/or intentionally provide in correct in formation 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;

14 Section 5.24. Public Skilled Health Professional as a Conscientious Objector. - In order to legally refuse to deliver reproductive health care services or information as a conscientious objector, a public skilled health professional shall comply with the following requirements:

a) The skilled health professional shall explain to the client the limited range of services he/she can provide;

b) Extraordinary diligence shall be exerted to refer the client seeking care to another skilled health professional or volunteer willing and capable of delivering the desired reproductive health care service within the same facility;

c) If within the same health facility, there is no other skilled health professional or volunteer willing and capable of delivering the desired reproductive health care service, the conscientious objector shall refer the client to another specific health facility or provider that is conveniently accessible in consideration of the client's travel arrangements and financial capacity;

d) Written documentation of compliance with the preceding requirements; and

e) Other requirements as determined by the DOH.

In the event where the public skilled health professional cannot comply with all of the above requirements, he or she shall deliver the client's desired reproductive health care service or information without further delay.

Provided, That skilled health professionals such as provincial, city, or municipal health officers, chiefs of hospital, head nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the duty to implement the provisions of the RPRH Act and these Rules, cannot be considered as conscientious objectors.

Within sixty (60) days from the effectivity of these rules, the DOH shall develop guidelines for the implementation of this provision.

15 Section 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(2) Refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the ground of lack of consent or authorization of the following persons in the following instances:

(i) Spousal consent in case of married persons: Provided, That in case of disagreement, the decision of the one undergoing the procedure shall prevail; and xxx.

16 Section 16.01. The following acts are prohibited:

a) Any health care service provider, whether public or private, who shall:

2. Refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the ground of lack of consent or authorization of the following persons in the following instances:

i. Spousal consent in case of married persons: Provided, That in case of disagreement, the decision of the one undergoing the procedure shall prevail; and

17 Section 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(2) Refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the ground of lack of consent or authorization of the following persons in the following instances:

x x x

(ii) Parental consent or that of the person exercising parental authority in the case of abused minors, where the parent or the person exercising parental authority is the respondent, accused or convicted perpetrator as certified by the proper prosecutorial office of the court. In the case of minors, the written consent of parents or legal guardian or, in their absence, persons exercising parental authority or next-of-kin shall be required only in elective surgical procedures and in no case shall consent be required in emergency or serious cases as defined in Republic Act No. 8344; and x x x.

18 Section 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(3) Refuse to extend quality health care services and information on account of the person's marital status, gender, age, religious convictions, personal circumstances, or nature of work: Provided, That the conscientious objection of a health care service provider based on his/her ethical or religious beliefs shall be respected; however, the conscientious objector shall immediately refer the person seeking such care and services to another health care service provider within the same facility or one which is conveniently accessible: Provided, further, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344, which penalizes the refusal of hospitals and medical clinics to administer appropriate initial medical treatment and support in emergency and serious cases.

19 Section 23 . Prohibited Acts. - The following acts are prohibited:

(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, or 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;

20 Section 17. Pro Bono Services for Indigent Women. - Private and nongovernment reproductive health care service providers including, but not limited to, gynecologists and obstetricians, are encouraged to provide at least forty-eight (48) hours annually of reproductive health services, ranging from providing information and education to rendering medical services, free of charge to indigent and low-income patients as identified through the NHTS-PR and other government measures of identifying marginalization, especially to pregnant adolescents. The forty-eight (48) hours annual pro bono services shall be included as a prerequisite in the accreditation under the PhilHealth.

21 Section 6.11. Pro Bono Services for Indigent Women. - Private and nongovernment reproductive healthcare service providers including, but not limited to, gynecologists and obstetricians, are encouraged to provide at least forty-eight (48) hours annually of reproductive health services, ranging from providing information and education to rendering medical services, free of charge to indigent and low-income patients as identified through the NHTS-PR and other government measures of identifying marginalization, especially to pregnant adolescents. The forty-eight (48) hours annual pro bono services shall be included as a prerequisite in the accreditation under the PhilHealth.

Section 6.12. Affidavit Attesting to Pro Bono Service. - For purposes of the above provision, the health care providers involved in the provision of reproductive health care shall subm it as part of requirements for PhilHealth accreditation a duly notarized affidavit attested to by two witnesses of legal age, following the format to be prescribed by PhilHealth, stating the circumstances by which forty-eight (48) hours of pro bono services per year have been rendered. The same shall be submitted to PhilHealth along with the other requirements for accreditation.

Section 6.13. Specification of Pro Bono Services. - Reproductive health care that may be provided pro bono shall be according to the definition of reproductive health care in Section 3.01 (ss) of these Rules.

Services for which PhilHealth reimbursement is being or shall be applied for by the health care provider shall not be counted as part of the forty-eight (48)-hour requirement for pro bono services.

22 Section 3.01. For purposes of these Rules, the terms shall be defined as follows:

a) Abortifacient refers to any drug or device that primarily 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 Food and Drug Administration (FDA). (Emphasis supplied)

23 Section 3.01. For purposes of these Rules, the terms shall be defined as follows:

j) Contraceptive refers to any safe, legal, effective, and scientifically proven modern family planning method, device, or health product, whether natural or artificial, that prevents pregnancy but does not primarily destroy a fertilized ovum or prevent a fertilized ovum from being implanted in the mother's womb in doses of its approved indication as determined by the Food and Drug Administration (FDA). (Emphasis supplied)

24 Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:

(a) Abortifacient refers to 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.

25 Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. lt shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.

26 455 Phil. 411 (2003).

27 Id. at 577-578.

28 Id. at 530.

29 Memorandum of the Office of the Solicitor General, p. 25.

30 Decision.

31 Article 18(3).

32 Braunfeld v. Brown, 366 U.S. 599 (1961).

33 The Limits of Conscientious Refusal in Reproductive Medicine, The American College of Obstetricians and Gynecologists, Committee on Ethics Opinion, Number 385, November 2007, Reaffirmed 2013.

34 Id.

35 Id.

36 Unethical Protection of Conscience: Defending the Powerful against the Weak, Bernard M. Dickens, PhD, LLD, American Medical Association Journal of Ethics, September 2009, Volume 11, Number 9: 725-729.

37 Id.

38 Decision.

39 Section 9. The Philippine National Drug Formulary System and Family Planning Supplies. - The National Drug Formulary shall include hormonal contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family planning products and supplies. The Philippine National Drug Formulary System (PNDFS) shall be observed in selecting drugs including family planning supplies that will be included or removed from the Essential Drugs List (EDL) in accordance with existing practice and in consultation with reputable medical associations in the Philippines. For the purpose of this Act, any product or supply included or to be included in the EDL must have a certification from the FDA that said product and supply is made available on the condition that it is not to be used as an abortifacient. (Emphasis supplied)

40 TSN, 6 August 2013, pp.171-173.

41 Washington v. Glucksberg, 521 U.S. 702.

42 Atienza v. COMELEC, G.R. No. 188920, 16 February 2010, 612 SCRA 761.

43 Union Pacific Railway v. Botsford, 141 U.S. 250.

44 Schloendorff v. Society of New York Hospital, 105 N.E. 92.

45 Nasusulat sa Family Code of the Philippines na:

Article 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.

Naglatag ang batas ng panuntunan na sakaling hindi magkasundo ang mag-asawa sa pamamahala at pagtamasa sa kanilang ari-arian, mananaig ang pasiya ng asawang lalaki. Maihahalintulad dito ang probisyon ng RH Law na nagpapahalaga sa saril ing pagpapasiya ng taong may katawan ukol sa resproductive health. Nagbibigay lamang ang batas ng kalutasan sa panahong hindi magkasundo ang mag-asawa.

46 Decision.

47 Id.

48 Id.

49 FAMILY CODE OF THE PHILIPPINES, Article 209.

50 Id., Article 220. The parents and those exercising parental authority shall have with respect to their unemancipated children or wards the following rights and duties:

1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means;

2) To give them love and affection , advice and counsel, companionship and understanding;

3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship;

4) To enhance, protect, preserve and maintain their physical and mental health at all times;

5) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals;

6) To represent them in all matters affecting their interests;

7) To demand from them respect and obedience;

8) To impose discipline on them as may be required under the circumstances; and

9) To perform such other duties as are imposed by law upon parents and guardians. (316a)

51 Id., Article 210.

52 Article 228. Parental authority terminates permanently:

1) Upon the death of the parents;

2) Upon the death of the child; or

3) Upon emancipation of the child. (327a)

Article 229. Unless subsequently revived by a final judgment, parental authority also terminates:

1) Upon adoption of the child;

2) Upon appointment of a general guardian;

3) Upon judicial declaration of abandonment of the child in a case filed for the purpose;

4) Upon final judgment of a competent court divesting the party concerned of parental authority; or

5) Upon judicial declaration of absence or incapacity of the person exercising parental authority. (327a)

Article 230. Parental authority is suspended upon conviction of the parent or the person exercising the same of a crime which carries with it the penalty of civil interdiction. The authority is automatically reinstated upon service of the penalty or upon pardon or amnesty of the offender. (330a)

Article 231. The court in an action filed for the purpose or in a related case may also suspend parental authority if the parent or the person exercising the same:

1) Treats the child with excessive harshness or cruelty;

2) Gives the child corrupting orders, counsel or example;

3) Compels the child to beg; or

4) Subjects the child or allows him to be subjected to acts of lasciviousness.

The grounds enumerated above are deemed to include cases which have resulted from culpable negligence of the parent or the person exercising parental authority.

If the degree of seriousness so warrants, or the welfare of the child so demands, the court shall deprive the guilty party of parental authority or adopt such other measures as may be proper under the circumstances. The suspension or deprivation may be revoked and the parental authority revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefor has ceased and will not be repeated. (332a)

Article 232. If the person exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse, such person shall be permanently deprived by the court of such authority. (n)

53 Decision.

54 Committee on the Rights of the Child, General Comment No. 4, Adolescent health and development in the context of the Convention on the Rights of the Child, U.N . Doc. CRC/GC/2003/4 (2003).

55 Section 14. Age-and Development-Appropriate Reproductive Health Education. - The State shall provide age-and development-appropriate reproductive health education to adolescents which shall be taught by adequately trained teachers in formal and no nformal educational system and integrated in relevant subjects such as, but not limited to, values formation ; knowledge and skills in self-protection against discrimination; sexual abuse and violence against women and children and other forms of gender based violence and teen pregnancy; physical, social and emotional changes in adolescents; women's rights and children's rights; responsible teenage behavior; gender and development; and responsible parenthood: Provided, That flexibility in the formulation and adoption of appropriate course content, scope and methodology in each educational level or group shall be allowed only after consultations with parents-teachers-community associations, school officials and other interest groups. The Department of Education (DepEd) shall formulate a curriculum which shall be used by public schools and may be adopted by pdvate schools. (Emphasis supplied)

56 Joint Memorandum (Of Respondent House of Representatives and Respondent-Intervenor Rep. Edcel C. Lagman), pp. 57-58.

57 General Comment No. 4, Adolescent health and development in the context of the Convention on the Rights of the Child, U.N. Doc. CRC/GC/2003/4 (2003).

58 Id.

59 Id .

60 Estampa, Jr. v. City Government of Davao, G. R. No. 190681, 21 June 2010, 621 SCRA 350.

61 CONSTITUTION, Article XI, Section I; Amit v. Commission on Audit, G.R. No. 176172, 20 November 2012; San Jose, Jr. v. Camurongan, 522 Phil. 80 (2006).

62 Biraogo v. The Philippine Truth Commission of 2010, G.R. Nos. 192935 and 193036, 7 December 2010, 637 SCRA 78.

63 Quinto v. COMELEC, G.R. No. 189698, 22 February 2010, 613 SCRA 385.

64 Section 4(q).

65 Id.

66 Ang kahulugan ng reproductive health ay "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity in all matters relating to the reproductive system and to its fanctions and processes."


The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING

DEL CASTILLO, J.:

Our nation is at a crossroads.

Perhaps no other piece of legislation in recent history has so bitterly and piercingly divided us as much as Republic Act No. 103541 or more popularly known as the RH Law. That this law has cut deeply into the consciousness and wounded the soul of our nation is evident from the profound depth of conviction with which both proponents and opponents of this law have argued their cause before the bar of public opinion, Congress, and now, before this Court.

With the passage of the RH Law, the present case before us is the last remaining obstacle to its implementation.

The RH Law is primarily a national family planning policy with universal access to contraceptives and informed-free choice as its centerpiece. Its proponents laud the law for what they perceive as a sound and aggressive contraceptive strategy geared towards population control, poverty alleviation, women empowerment, and responsible parenthood. Its opponents, however, deplore the law for what they claim brings about a contraceptive mentality leading to the lowering of moral standards, destruction of marriage and the family, a population winter, and a culture of death.

The path that we, as a nation, will take has already been decided by Congress, as representatives of the people, under our system of government. The task before the Court, then, is not to say which path we ought to take but to determine if the chosen path treads on unconstitutional grounds. But this is not all. For the Court, which was once generally a passive organ in our constitutional order, has been given expanded powers under the present Constitution. It is now not only its right but its bounden duty to determine grave abuse of discretion on the part of any branch, instrumentality or agency of government,2 and, equally important, it has been given the power to issue rules for the protection and enforcement of constitutional rights.3 The Court cannot, therefore, remain an idle spectator or a disinterested referee when constitutional rights are at stake. It is its duty to protect and defend constitutional rights for otherwise its raison d'etre will cease.

With these considerations in mind, I am of the view that the social gains or ills, whether imagined or real, resulting from the implementation of the RH Law is beyond the scope of judicial review. Thus, even if we assume that the grave and catastrophic predictions of the opponents of the RH Law manifest itself later on, the remedy would lie with Congress to repeal or amend the law. We have entrusted our destiny as a nation to this system of government with the underlying hope that Congress will find the enlightenment and muster the will to change the course they have set under this law should it prove unwise or detrimental to the life of our nation. The battle in this regard remains within the legislative sphere. And there is no obstacle for the law's opponents to continue fighting the good fight in the halls of Congress, if they so choose. Thus, the Court will refrain from ruling on the validity of the RH Law based on its wisdom or expediency.

This is not to say, however, that this law is beyond judicial scrutiny. While I will tackle several constitutional questions presented before this Court in this Opinion, it is my considered view that the paramount issue, which is properly the subject of constitutional litigation, hinges on two vital questions: (1) when does the life of the unborn begin? and (2) how do we ought to protect and defend this life?

On the first question, I am fully in accord with the result reached by the ponencia. Absent a clear and unequivocal constitutional prohibition on the manufacture, distribution, and use of contraceptives, there is nothing to prevent Congress from adopting a national family planning policy provided that the contraceptives that will be used pursuant thereto do not harm or destroy the life of the unborn from conception, which is synonymous to fertilization, under Article II, Section 124 of the Constitution. The plain meaning of this constitutional provision and the deliberations of the Constitutional Commission bare this out.

It is upon the answer to the second question, however, where I find myself unable to fully agree with the ponencia. Congress accomplished a commendable undertaking when it passed the RH Law with utmost respect for the life of the unborn from conception/fertilization. Indeed, this law is replete with provisions seeking to protect and uphold the right to life of the unborn in consonance with the Constitution.

However, where the task of Congress ends, the Court's charge begins for it is mandated by the Constitution to protect and defend constitutional rights. With the impending implementation of the RH Law, the Court cannot tum a blind eye when the right to life of the unborn may be imperiled or jeopardized. Within its constitutionally-mandated role as guardian and defender of constitutional rights, in general, and its expanded power to issue rules for the protection and enforcement of such rights, in particular, the Court may, thus, issue such orders as are necessary and essential to protect, defend and enforce the right to life of the unborn.

The framers of, and the people who ratified the Constitution set in bold and deft strokes the protection of the life of the unborn from conception/fertilization because it is precious, sacred and inviolable. For as long as this precept remains written in our Constitution, our solemn duty is to stay the course in fidelity to the most cherished values and wisdom of those who came before us and to whom we entrusted the writing and ratification of our Constitution. History will judge this Court on what it did or did not do to protect the life of the unborn from conception/fertilization. There is, therefore, no other recourse but for this Court to act in defense of the life of the unborn.

These reasons primarily impel the writing of this Opinion.

Deliberations of the Constitutional
Commission on Article II, Section 12 of
the Constitution.

Article II, Section 12 of the Constitution provides, in part:

Section 12. 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.x x x (Emphasis supplied)

Article II, Section 12 of the present Constitution was originally Article II, Section 9 of the draft of the Constitution:

Section 9. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic social institution. The State shall equally protect the life of the mother and the life of the unborn from the moment of conception.5 x x x (Emphasis supplied)

The draft of the Constitution was slightly differently worded as it made use of the phrase "from the moment of conception" while its present wording is "from conception." The change in wording, as will be discussed later, was to simplify the phraseology. But the intended meaning of both phrases, as deliberated by the Constitutional Commission, is the same.

The background and basis of the subject constitutional provision were explained in the sponsorship speech of Commissioner Villegas. He emphasized that, based on incontrovertible scientific evidence, the fertilized ovum is alive; that this life is human; and that the fertilized ovum is a human person. Though that last point, he acknowledged, was highly contested in law. Commissioner Villegas went on to discuss why abortion could not be justified even in so-called hard cases such as pregnancies resulting from rape or incest; pregnancies of mentally ill mothers; and pregnancies of mothers mired in abject poverty.

The justification for disallowing abortion in hard cases sets the tone on the nature of the right to life of the unborn, as a fundamental right, that recurs throughout the deliberations:

The main reason why we should say "no" (to abortion in hard cases) are: (1) a wrong cannot be righted by another wrong, (2) no one should be deprived of human life without due process and we have established scientifically that from the moment of conception, the fertilized ovum has already life; and (3) a fetus, just like any human, must be presumed innocent unless proven guilty. It is quite obvious that the fetus has done no wrong. Its only wrong is to be an unwanted baby.6 (Emphasis supplied)

Commissioner Villegas would later re-emphasize this point at the end of his sponsorship speech, thus:

What is being affirmed in this formulation is the moral right as well as the constitutional right of the unborn child to life. x x x The views I express here transcend religious differences. As I have declared in another occasion, this is not a Roman Catholic position. Since time immemorial, even before Christianity was brought to our soil, as you very well know, our ancestors referred to the baby in the womb of the mother as tao-siya'y nagdadalang-tao. Ang dinadala ay tao; hindi halaman, hindi hayop, hindi palaka-tao.

Madam President, let me also quote from a non-Christian in our Commission. In a public hearing, the honorable Commissioner Uk.a said the following: "As a Muslim, I believe in the Ten Commandments, and one of the Ten Commandments is "Thou shalt not kill." From the time of conception, there is already life. Now if you put down that life, there is already killing, a violation of one of the Ten Commandments. The overwhelming majority of Filipinos agree with Commissioner Uk.a that we should support Section 9. We have received up to now more than 50,000 signatures from all over the Philippines, from individuals belonging to all walks of life. I do not think there is any other issue in which we have been bombarded with more numerous signatures. Let us, therefore, listen to all of them and mandate that the State should equally protect the life of the mother and the unborn from the moment of conception.7 (Emphasis supplied)

Subsequently, Commissioner Nolledo would re-echo these views:

Killing the fetus, while categorized as abortion in our Revised Penal Code, is plain murder because of its inability to defend itself. Let the unborn.

Madam President, the unborn which is cherished, precious and loving gift of God, enjoy constitutional protection in a Christian country like ours.8

The subject constitutional provision, thus, sought to recognize the right to life of the unborn as a fundamental right. As Commissioner Padilla observed:

Madam President, after the sponsorship of Commissioner Villegas on Section 9, I wanted to state that I fully concur with his views in support of Section 9 on the right of the unborn from conception. I found his exposition to be logical, not necessarily creative, much less critical, but logical. Madam President, I would like to state that the Revised Penal Code does not only penalize infanticide but it has various provisions penalizing abortion; Article 256, intentional abortion; Article 257, unintentional abortion; Article 258, abortion practiced by the woman herself or by her parents; and Article 259, abortion practiced by a physician or midwife and dispensing of abortives.

However, I believe the intention of the proponents of Section 9 is not only to affirm this punitive provision in the Penal Code but to make clear that it is a fundamental right that deserves to be mentioned in the Constitution.9 (Emphasis supplied)

The unique status of the fundamental right accorded to the unborn was explored in later discussions. It was emphasized that the subject constitutional provision was intended to protect only the right to life of the unborn unlike the human person who enjoys the right to life, liberty and property:

MR. SUAREZ. Going to these unborn children who will be given protection from the moment of conception, does the Commissioner have in mind giving them also proprietary rights, like the right to inheritance?

MR. VILLEGAS. No, Madam President. Precisely, the question of whether or not that unborn is a legal person who can acquire property is completely a secondary question. The only right that we want to protect from the moment of conception is the right to life, which is the beginning of all other rights.

MR. SUAREZ. So, only the right to life.

MR. VILLEGAS. Yes, it is very clear, only the right to life.

MR SUAREZ. That is the only right that is constitutionally protected by the State.

MR. VILLEGAS. That is right, Madam President.10 (Emphasis supplied)

The deliberations also revealed that the subject constitutional provision was intended to prevent the Court from making a Roe v. Wade11 ruling in our jurisdiction:

MR VILLEGAS. Yes, Madam President. As Commissioner Padilla already said, it is important that we have a constitutional provision that is more basic than the existing laws. In countries like the United States, they get involved in some ridiculous internal contradictions in their laws when they give the child the right to damages received while yet unborn, to inheritance, to blood transfusion over its mother's objection, to have a guardian appointed and other rights of citizenship; but they do not give him the right to life.

As has happened after that infamous 1972 U.S. Supreme Court decision (Roe v. Wade), babies can be killed all the way up to 8 and 8 1/2 months. So precisely this basic provision is necessary because inferior laws are sometimes imperfect and completely distorted. We have to make sure that the basic law will prevent all of these internal contradictions found in American jurisprudence because Filipino lawyers very often cite American jurisprudence.12

x x x x

MR VILLEGAS. As I have said, we must prevent any possibility of legalized abortion, because there is enough jurisprudence that may be used by Congress or by our Supreme Court.

Let me just read what happened after the Roe v. Wade decision in the U.S. Supreme Court. xx x

So, these are the floodgates that are open?

REV. RIGOS. Which are?

MR. VILLEGAS. As I said, American jurisprudence looms large on Philippine practice and because it is a transcendental issue, we have to completely remove the gossibility of our Congress and our Supreme Court following this tragic trail.13

There was, thus, a clear rejection of the theory used in Roe v. Wade that the test of human personality was viability. Further, the subject constitutional provision was intended to prohibit Congress from legalizing abortion:

MR. VILLEGAS. "Protection" means any attempt on the life of the child from the moment of conception can be considered abortion and can be criminal.

MR. SUAREZ. So, principally and exclusively, if may say so, what the Commissioner has in mind is only an act outlawing abortion.

MR. VILLEGAS. Exactly, Madam President.

MR. SUAREZ. So that is the real thrust and meaning of this particular provision.

MR. VILLEGAS. That is right.

MR. SUAREZ. Can we not just spell it out in our Constitution that abortion is outlawed, without stating the right to life of the unborn from the moment of conception, Madam President?

MR. VILLEGAS. No, because that would already be getting into the legal technicalities. That is already legislation. The moment we have this provision, all laws making abortion possible would be unconstitutional. That is the purpose of this provision, Madam President.14

x x x x

MR. NATIVIDAD. Madam President, I rose to ask these questions because I had the impression that this provision of the Constitution would prevent future Congresses from enacting laws legalizing abortion. Is my perception correct, Madam President?

MR. VILLEGAS. Exactly. Congress cannot legalize abortion. It would be unconstitutional.

MR. NATIVIDAD. In what way will it collide with this provision?

MR. VILLEGAS. Any direct killing of the unborn from the moment of conception would be going against the Constitution and, therefore, that law would be, if Congress attempts to make it legal, unconstitutional.15

The sole exception to this constitutional prohibition against abortion is when there is a need, in rare cases, to save the life of the mother which indirectly sacrifices the unbom's life under the principle of double effect:

MR. BENNAGEN. In making a decision as to which life takes priority, the life of the mother or the life of the unborn, what criteria are contemplated by the committee on which to base the decision?

MR. VILLEGAS. We have articulated this moral principle called the principle of double effect. Whenever there is need, for example, to perform a surgical operation on the mother because of a disease or some organic malfunctioning, then the direct intention is to save the mother. And if indirectly the child's life has to be sacrificed, that would not be abortion, that would not be killing. So, in those situations which we said are becoming rarer and rarer because of the tremendous advance of medical science, the mother's life is safe.16

Intricately related to the prohibition of legalizing abortion was the intention to prevent Congress, through future legislation, from defining when life begins other than at the time of fertilization:

MR. DAVIDE. Precisely. So, insofar as the unborn is concerned, life begins at the first moment of conception. Therefore, there is no need to delete. There is no need to leave it to Congress because that is a matter settled in medicine.

x x x x

REV. RIGOS. Yes, we think that the word "unborn" is sufficient for the purpose of writing a Constitution, without specifying "from the moment of conception.

MR. DAVIDE. I would not subscribe to that particular view because according to the Commissioner's own admission, he would leave it to Congress to define when life begins. So, Congress can define life to begin from six months after fertilization; and that would really be very, very dangerous. It is now detennined by science that life begins from the moment of conception. There can be no doubt about it. So, we should not give any doubt to Congress, too.

Thank you, Madam President. (Applause)17 (Emphasis supplied)

Much of the debates, however, centered on the meaning of the phrase "from the moment of conception." It is clear from the deliberations that the intended meaning of the phrase "from the moment of conception" was fertilization or the moment the egg is fertilized by the sperm.

REV. RIGOS. In Section 9, page 3, there is a sentence which reads:

The State shall equally protect the life of the mother and the life of the unborn from the moment of conception.

When is the moment of conception?

x x x x

MR. VILLEGAS. As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm that there is human life. Just to repeat: first, there is obviously life because it starts to nourish itself, it starts to grow as any living being, and it is human because at the moment of fertilization, the chromosomes that combined in the fertilized ovum are the chromosomes that are uniquely found in human beings and are not found in any other living being.18 (Emphasis supplied)

Significantly, the framers intentionally made use of the term "from the moment of conception" so that the people who will ratify the Constitution would easily understand its meaning:

MR. TINGSON. We would like Commissioner Rigos to know that the phrase "from the moment of conception" was described by us here before with the scientific phrase "fertilized ovum." However, we figured in the committee that the phrase "fertilized ovum" may be beyond the comprehension of some people; we want to use the simpler phrase "from the moment of conception."19

During the deliberations, the meaning of "from the moment of conception" was repeatedly reaffirmed as pertaining to the fertilization of the egg by the sperm. As a necessary consequence of this definition, any drug or device that harms the unborn from the moment of fertilization is considered an abortifacient and should be banned by the State:

MR. GASCON. Mr. Presiding Officer, I would like to ask a question on that point. Actually that is one of the questions I was going to raise during the period of interpellations but it has been expressed already. The provision, as it is proposed right now, states:

The State shall equally protect the life of the mother and the life of the unborn from the moment of conception.

When it speaks of "from the moment of conception," does this mean when the egg meets the sperm?

MR VILLEGAS. Yes, the ovum is fertilized by the sperm.

MR. GASCON. Therefore, that does not leave to Congress the right to determine whether certain contraceptives that we know of today are abortifacient or not because it is a fact that some of these so-called contraceptives deter the rooting of the fertilized ovum in the uterus. If fertilization has already occurred, the next process is for the fertilized ovum to travel towards the uterus and to take root. What happens with some contraceptives is that they stop the opportunity for the fertilized ovum to reach the uterus. Therefore, if we take the provision as it is proposed, these so-called contraceptives should be banned.

MR. VILLEGAS. Yes, if that physical fact is established, then that is what we call abortifacient and, therefore, would be unconstitutional and should be banned under this provision.20

(Emphasis supplied)

This was further confirmed in the following exchanges:

MR.GASCON. x x x

x x x x

I mentioned that if we institutionalize the term "the life of the unborn from the moment of conception," we are also actually saying "no," not "maybe" to certain contraceptives which are already being encourage at this point in time. Is that the sense of the committee or does it disagree with me?

MR AZCUNA. No, Mr. Presiding Officer, because contraceptives would be preventive. There is no unborn yet. That is yet unshaped.

MR. GASCON. Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives, such as the intra-uterine device which actually stops the egg which has already been fertilized from taking route to the uterus. So, if we say "from the moment of conception," what really occurs is that some of these contraceptives will have to be unconstitutionalized.

MR. AZCUNA. Yes, to the extent that it is after the fertilization, Mr. Presiding Officer.21 (Emphasis supplied)

Later, Commissioner Padilla initiated moves to reword the phrase "from the moment of conception" to "from conception" to simplify the phraseology of the subject constitutional provision without deviating from its original meaning, that is, conception pertains to fertilization.22

The real challenge to the proponents of the subject constitutional provision, however, was the move by several members of the Commission to change the phrase "protect the life of the mother and the life of the unborn from the moment of conception" to "protect the life of the mother and the life of the unborn." In other words, there was a move to delete the phrase "from the moment of conception." Opponents of the subject constitutional provision argued that the determination of when life begins should be left to Congress to address in a future legislation where there is greater opportunity to debate the issues dealing with human personality and when it begins.23

After a lengthy exchange, the proponents of the subject constitutional provision scored a decisive victory when the final voting on whether to retain or delete the phrase "from the moment of conception" was held:

THE PRESIDENT. x x x So, if the vote is "yes", it is to delete "from the moment of conception." If the vote is "no," then that means to say that the phrase "from the moment of conception" remains.24

x x x x

THE PRESIDENT. The results show 8 votes in favor and 32 against; so, the proposed Rigos amendment is lost.25

Hence, the phrase "from the moment of conception" was retained. Subsequently, the Padilla amendment was put to a vote. With a vote of33 in favor, 3 against, and 4 abstentions, the Padilla amendment was approved. Thus, the present wording of the second sentence of Article II, Section 12 of the Constitution makes use of the simplified phrase "from conception."

Key Characteristics of Article II, Section 12

Several important characteristics or observations may be made on the nature, scope and significance of Article II, Section 12 of the Constitution relative to the protection of the life of the unborn based on the deliberations of the Constitutional Commission.

First, the framers were unequivocal in their intent to define "conception" as the fertilization of the egg by the sperm and to accord constitutional protection to the life of the unborn from the moment of fertilization. The plain meaning of the term "conception," as synonymous to fertilization, based on dictionaries and medical textbooks, as aptly and extensively discussed by the ponencia, confirm this construction. In addition, petitioners correctly argue that the definition of "conception," as equivalent to fertilization, was the same definition prevailing during the 1980's or at around the time the 1987 Constitution was ratified.26

Hence, under the rule of constitutional construction, which gives weight to how the term was understood by the people who ratified the Constitution,27 "conception" should be understood as fertilization.

Second, the protection of the life of the unborn under Article II, Section 12 is a self-executing provision because:

(1) It prevents Congress from legalizing abortion; from passing laws which authorize the use of abortifacients; and from passing laws which will determine when life begins other than from the moment of conception/fertilization;

(2) It prevents the Supreme Court from making a Roe v. Wade28 ruling in our jurisdiction; and

(3) It obligates the Executive to ban contraceptives which act as abortifacients or those which harm or destroy the unborn from conception/fertilization.

Article II, Section 12 is, thus, a direct, immediate and effective limitation on the three great branches of government and a positive command on the State to protect the life of the unborn.

Third, Article II, Section 12 recognized a sui generis constitutional right to life of the unborn. The framers repeatedly treated or referred to the right to life of the unborn as a :fundamental right and thereby acknowledged that the unborn is a proper subject of a constitutional right. That this right is founded on natural law and is self-executing further provides the unmistakable basis and intent to accord it the status of a constitutional right. However, it is sui generis because, unlike a person who possesses the right to life, liberty and property, the unborn's fundamental right is solely limited to the right to life as was the intention of the framers. Clearly, then, Article II, Section 12 recognized a sui generis right to life of the unborn from conception/fertilization and elevated it to the status of a constitutional right.

Fourth, because the unborn has been accorded a constitutional right to life from conception/fertilization under Article II, Section 12, this right falls within the ambit of the Court's power to issue rules for the protection and enforcement of constitutional rights under Article VIII, Section 5(5) of the Constitution:

Section 5. The Supreme Court shall have the following powers:

x x x x

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, xx x. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

This is significant because it imposes upon this Court the duty to protect such right pursuant to its rule-making powers. In recent times, the Court acknowledged that the right of the people to a balanced and healthful ecology in accord with the rhythm and hannony of nature under Article II, Section 16 of the Constitution, though found in the Declaration of Principles and Policies (like the subject right to life of the unborn) and not in the Bill of Rights, may be given flesh pursuant to the power of the Court to issue rules for the protection and enforcement of constitutional rights. It, thus, proceeded to promulgate the rules governing the Writ of Kalikasan.29

With far greater reason should the Court wield this power here because the unborn is totally defenseless and must rely wholly on the State to represent its interest in matters affecting the protection and preservation of its very life. It does not necessarily follow, however, that the Court should issue a set of rules to protect the life of the unborn like the Writ of Kalikasan. How the Court is to protect and enforce the constitutional right to life of the unborn, within the context of the RH Law, is the central theme ofthis Opinion.

With the groundwork constitutional principles in place, I now proceed to tackle the constitutionality of the RH Law and its Implementing Rules and Regulations (IRR).

The RH Law does not contravene Article

II, Section 12 of the Constitution.

The RH Law prohibits the use of abortifacients in several provisions in consonance with Article II, Section 12 of the Constitution, to wit:

(1) Section 2:

SEC. 2. Declaration of Policy. – x x x

The State likewise guarantees universal access to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive health care services, methods, devices, supplies which do not prevent the implantation of a fertilized ovum as determined by the Food and Drug Adrrllnistration (FDA) and relevant information and education thereon according to the priority needs of women, children and other underprivileged sectors, giving preferential access to those identified through the National Household Targeting System for Poverty Reduction (NHTS-PR) and other government measures of identifying marginalization, who shall be voluntary beneficiaries of reproductive health care, services and supplies for free. (Emphasis supplied)

(2) Section 3:

SEC. 3. Guiding Principles for Implementation. - This Act declares the following as guiding principles: x x x

(d) The provision of ethical and medically safe, legal, accessible, affordable, non-abortifacient, effective and quality reproductive health care services and supplies is essential in the promotion of people's right to health, especially those of women, the poor, and the marginalized, and shall be incorporated as a component of basic health care;

(e) The State shall promote and provide information and access, without bias, to all methods of family planning, including effective natural and modem methods which have been proven medically safe, legal, non-abortifacient, and effective in accordance with scientific and evidence-based medical research standards such as those registered and approved by the FDA for the poor and marginalized as identified through the NHTS-PR and other government measures of identifying marginalization: Provided, That the State shall also provide funding support to promote modem natural methods of family planning, especially the Billings Ovulation Method, consistent with the needs of acceptors and their religious convictions; x x x

(j) While this Act recognizes that abortion is illegal and punishable by law, the government shall ensure that all women needing care for post- abortive complications and all other complications arising from pregnancy, labor and delivery and related issues shall be treated and counseled in a humane, nonjudgmental and compassionate manner in accordance with law and medical ethics; (Emphasis supplied)

(3) Section 4:

SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows: x x x

(a) Aborfifacient refers to 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.

x x x x

(e) Family planning refers to a program which enables couples and individuals to decide freely and responsibly the number and spacing of their children and to have the information and means to do so, and to have access to a full range of safe, affordable, effective, non-abortifacient modem natural and artificial methods of planning pregnancy.

x x x x

(l) Modern methods of family planning refers to safe, effective, non-abortifacient and legal methods, whether natural or artificial, that are registered with the FDA, to plan pregnancy.

x x x x

(s) Reproductive health rights refers to the rights of individuals and couples, to decide freely and responsibly whether or not to have children; the number, spacing and timing of their children; to make other decisions concerning reproduction, free of discrimination, coercion and violence; to have the information and means to do so; and to attain the highest standard of sexual health and reproductive health: Provided, however, That reproductive health rights do not include abortion, and access to abortifacients. (Emphasis supplied)

(4) Section 9:

SEC. 9. The Philippine National Drug Formulary System and Family Planning Supplies. - The National Drug Formulary shall include hormonal contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family planning products and supplies. The Philippine National Drug Formulary System (PNDFS) shall be observed in selecting drugs including family planning supplies that will be included or removed from the Essential Drugs List (EDL) in accordance with existing practice and in consultation with reputable medical associations in the Philippines. For the purpose of this Act, any product or supply included or to be included in the EDL must have a certification from the FDA that said product and supply is made available on the condition that it is not to be used as an abortifacient.

These products and supplies shall also be included in the regular purchase of essential medicines and supplies of all national hospitals: Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency contraceptive pills, postcoital pills, abortifacients that will be used for such purpose and their other forms or equivalent. (Emphasis supplied)

The key provision is found in Section 4(a) which defines an "abortifacient" 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." That last phrase which effectively bans contraceptives that prevent the fertilized ovum from reaching and being implanted in the mother's womb guarantees that the fertilized ovum will not be hanned or destroyed from the moment of fertilization until its implantation. Thus, the RH Law protects the unborn from conception/fertilization in consonance with the Constitution.

As earlier noted, the RH Law is to be commended for its zealous protection of the life of the unborn from conception/fertilization. It repeatedly emphasizes that the contraceptives which will be made available under the law should be non-abortifacient. It prohibits the use of abortifacients and penalizes the use thereof. Thus, it cannot be said that the law violates Article II, Section 12 of the Constitution.

The IRR's definition of "abortifacient"
and "contraceptive" contravenes Article
II, Section 12 of the Constitution and the
RH Law itself.

Petitioners Alliance for the Family Foundation Philippines, Inc. (ALFI) et al. argue:

9.1.9 The IRRs, which have been signed by the Secretary of Health himself, among others, veer away from the definition of the term "abortifacient" in SEC. 4 (a) of the RH Law, such that in the IRRs, the term has, in effect, been re-defined.

9.1.10 Rule 3 - Definition of Terms, Section 3.01 (a) of the IRRs, as signed, states:

"Abortifacient refers to any drug or device that primarily 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 Food and Drug Administration (FDA)."

And "primarily" means the drug or device has no other known effect aside from abortion. (footnote 14, JRRs)

9.1.11 x xx x

9.1.12 One can readily spot how the insertion of the word "primarily" has radically, if not deceptively, changed the meaning of "Abortifacient" under the RH Law. As explained above, the primary mechanism of action of contraceptives is really to prevent ovulation or fertilization, but this does not happen all the time because in some instances break-through ovulation occurs and the built-in and back-up abortive action sets in. With the definition under the IRR, abortifacient contraceptives will not be classified as abortifacients because they do not "primarily" and "solely" cause abortion or are abortive. Well, this should not be surprising anymore because as indicated in the explanatory note of the IR.Rs, the only goal is to save [the] mother's lives and to reduce maternal mortality rate, without any reference to saving the life of the unborn child or decreasing infant mortality rate.

9.1.13. Clearly, but unfortunately, the true legislative intent is: for the State to fund and fully implement the procurement and widespread dissemination and use of all forms of contraceptive products, supplies and devices, even if they are abortifacients and harmful to the health of women. This goes counter to the constitutional intent of Section 12, Article II which is to afford protection to the unborn child from the incipient stage of the existence of life, that is, from the very moment of conception or fertilization, and to give equal protection to the life of the mother and the life of the unborn from conception.30

I agree.

Section 3.0l(a) of the IRR defines "abortifacient" as:

Section 3.01 For purposes of these Rules, the terms shall be defined as follows:

a) Abortifacient refers to any drug or device that primarily 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 Food and Drug Administration (FDA). (Emphasis supplied)

On the other hand, the RH Law defines "abortifacient" thus:

SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:

(a) Abortifacient refers to 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.

Clearly, the addition of the word "primarily" in the IRR is ultra vires for it amends or contravenes Section 4(a) of the RH Law.

More importantly, I agree that the insertion of the qualifier "primarily" will open the floodgates to the approval of contraceptives which may harm or destroy the life of the unborn from conception/fertilization in violation of Article II, Section 12 of the Constitution. As defined in the IRR, a drug or device is considered an abortifacient if it "primarily" 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; where "primarily" means that the drug or device has no other known effect aside from abortion. In other words, under the IRR, a contraceptive will only be considered as an "abortifacient" if its sole known effect is abortion or, as pertinent here, the prevention of the implantation of the fertilized ovum.

Consequently, a drug or device which (a) prevents fertilization, (b) but does not provide a 100% guarantee of such prevention, and (c) has a fail-safe mechanism which will prevent the implantation of the fertilized ovum in case fertilization still occurs will not be considered an "abortifacient" because the known effect thereof is not solely prevention of implantation since (1) it primarily prevents fertilization and (2) only secondarily prevents the implantation of the fertilized ovum in case fertilization still occurs.

However, a drug or device that cannot provide a 100% guarantee that it will prevent fertilization and has a fail-safe mechanism which prevents implantation of the fertilized ovum (or harming/destroying the fertilized ovum in any way) if fertilization occurs is unconstitutional under Article II, Section 12 and must be banned by the State. In more concrete terms, if a drug or device provides only a 90% guarantee of prevention of fertilization, then there is a 10% chance that fertilization will still occur and the fertilized ovum would be destroyed by the fail-safe mechanism of the contraceptive.

We cannot play the game of probabilities when life is at stake. The destruction or loss oflife is permanent and irrevocable. Our constitutional mandate is to protect the life of the unborn from conception/fertilization. We cannot protect this life 90% of the time and allow its destruction 10% of the time. We either protect this life or we do not. There is nothing in between.

If we are to truly give flesh to the constitutional precept that the life of the unborn from conception/fertilization is precious, sacred and inviolable, all reasonable doubts should be resolved in favor of the protection and preservation of the life of the unborn, and any probability of destruction or loss of such life should be absolutely proscribed. The supreme law of the land commands no less.

For parallel reasons, the IRR's definition of "contraceptive" under Section 3.0lG) is unconstitutional because of the insertion of the qualifier "primarily," to wit:

Section 3.01 For purposes of these Rules, the terms shall be defined as follows:

xx xx

j) Contraceptive refers to any safe, legal, effective and scientifically proven modem family planning method, device, or health product, whether natural or artificial, that prevents pregnancy but does not primarily destroy a fertilized ovum or prevent a fertilized ovum from being implanted in the mother's womb in doses of its approved indication as determined by the Food and Drug Administration (FDA). (Emphasis supplied)

Although the RH Law does not provide a definition of "contraceptive," a reasonable and logical deduction is that "contraceptive" (or allowable contraceptive to be more precise) is the opposite of "abortifacient" as defined under the RH Law. This seems to be the tack adopted by the IRR in defining "contraceptive." However, the IRR's definition of"contraceptive" again added the qualifier "primarily." For similar reasons with the previous discussion on the IRR's definition of "abortifacient," this definition of "contraceptive" opens the floodgates to the approval of contraceptives which are actually abortifacients because of their fail-safe mechanism. Hence, the qualifier "primarily" in Section 3.0lG) is, likewise, void.

In view of the foregoing, the word "primarily" in Section 3.0l(a) and G) of the IRR should be declared void for (1) contravening Section 4(a) of the RH Law and (2) violating Article II, Section 12 of Constitution.

Within the .framework of implementation
of the RH Law, it is necessary for this
Court to exercise its expanded
jurisdiction and power to issue rules for
the protection and enforcement of
constitutional rights in order to
adequately protect the right to life of the
unborn.

The Court should not limit its scrutiny to the constitutional validity of the RH Law and its IRR. This is because the right to life of the unborn from conception/fertilization is a constitutional right properly within the ambit of the Court's power to issue rules for the protection and enforcement of constitutional rights under Article VIII, Section 5( 5) of the Constitution. In Echegaray v. Secretary of Justice,31 the Court described this power to issue rules as one of the innovations of the present Constitution to expand the powers of the Court:

The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it enhanced the rule maldng power of this Court. Its Section 5(5), Article VIII provides:

x x x           x x x          x x x

"Section 5. The Supreme Court shall have the following powers:

x x x           x x x          x x x

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court."

The rule maldng power of this Court was expanded. This Court for the first time was given the power to promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also granted for the first time the power to disapprove rules of procedure of special courts and quasi-judicial bodies. x x x32

Viewed in light of the broad power of the Court to issue rules for the protection and enforcement of constitutional rights, the power to disapprove the rules of procedure of quasi-judicial bodies is significant in that it implies the power of the Court to look into the sufficiency of such rules of procedure insofar as they adequately protect and enforce constitutional rights. Moreover, the power to disapprove the aforesaid rules of procedure necessarily includes or implies the power to approve or modify such rules or, on the one extreme, require that such rules of procedure be issued when necessary to protect and enforce constitutional rights. In other words, within and between the broader power to issue rules for the protection and enforcement of constitutional rights and the narrower power to disapprove the rules of procedure of quasi-judicial bodies, there exist penumbras of this power that the Court may exercise in order to protect and enforce constitutional rights.

Furthermore, the power to determine when the aforesaid powers may be exercised should be understood in conjunction with the Court's expanded jurisdiction, under Article VIll, Section I of the Constitution, to determine "whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."

Taken together, the expanded jurisdiction of the Court and the power to issue rules for the protection and enforcement of constitutional rights provide the bases for the Court (1) to look into the sufficiency of safeguards in the implementation of the RH Law insofar as it will adversely affect the right to life of the unborn, and (2) to issue such orders as are necessary and essential in order to protect and enforce the constitutional right to life of the unborn. This is especially true in this case because the expanded powers of the Court was granted to it to prevent a repeat of the bitter experiences during martial law years when rampant human rights violations occurred. Verily, the expanded powers were conferred on this Court at a great price and were given for a clear purpose. Here, a more basic right-the right to life of the unborn- is at stake; the right from which all human rights emanate.

It should come as no surprise that at a time our nation is set to embark on a great social experiment, where the full machinery of the State will be utilized to implement an aggressive national family planning policy, the Court should find itself reflecting on the threshold of its constitutionally-mandated powers. The Court is beckoned to courageously sail forth to the new frontiers of its powers in order to stem the tide of oppression, nay destruction, against a most vulnerable group that may be trampled upon by this great social experiment. For can there be any group more vulnerable than the unborn?

As they say, we stand on the shoulders of giants. They have blazed the trail for this Court in order that we may see clearly what we can and ought to do in defense of the life of the unborn. They have seen fit to equip this Court with expanded powers in preparation for a future that they must have known would involve moments of great clashes between the juggernaut of majoritarian interests and the politically powerless and marginalized. We are in that moment. And we ought to firmly stand by the legacy and solemn charge that the :framers of, and the people who ratified our Constitution conferred upon us.

Against this backdrop, I delineate what the Court in the exercise of its expanded jurisdiction and power to issue rules for the protection and enforcement of constitutional rights is mandated to do in defense of the life of the unborn within the framework of implementation of the RH Law.

The Food and Drug Administration
(FDA) should be directed to issue the
proper rules of procedure that will
sufficiently safegua,rd the right to life of
the unborn.

Preliminarily, central to the protection of the right to life of the unborn is the proper determination, through screening, testing and/or evaluation, by the FDA, using the standard under the Constitution, as adopted under the RH Law, on what will constitute allowable contraceptives under the RH Law. During the oral arguments of this case, I delved upon the crucial task that lay ahead for the FDA:

Justice Del Castillo:

Counsel, just a few follow-up questions on contraceptives.

Atty. Noche:

Yes, Your Honor.

Justice Del Castillo:

You have identified contraceptives as abortifacient.

Atty. Noche:

Yes, Your Honor.

Justice Del Castillo:

There are so many contraceptives and the respondents have taken the view that not all are abortifacients. So to resolve this issue, why don't you identify, why don't you name these contraceptives and then let's test them if they are abortifacient then the issue is settled, so instead of making generalization that all contraceptives are abortifacient, don't you think that the proper course of action to take is to identify all these because practically all drugs are abortifacients, even a simple aspirin, so these are [as a] matter of degree. So, perhaps those that would cause tremendous harm and maybe we can ban them. But unless we have not identified them just to say that all abortifacients, don't you think that ... . . ..

Atty. Noche:

If Your Honor, please, hormonal contraceptives, what we' re saying is that hormonal contraceptives which include, you know, the pills, and the injectables, and intrauterine devices, Your Honor, and the patches, Your Honor, implants they're proven to be abortifacients, Your Honor. Vasectomy, sterilization procedures, Your Honor, they are also referred to as contraceptives, Your Honor, but they are not abortifacients because they don't contain hormones, Your Honor.

Justice Del Castillo:

No, I was suggesting that because the respondents would also come out with their own authorities, so to resolve it once and for all, let's test them.

Atty. Noche:

If Your Honor, please, we also have an objection about giving, of course, I'm sure, Your Honor, I've been referring to delegating the authority to the Food and Drug Administration, so we have a problem with that, Your Honor, because, I mean, these hormonal contraceptives are proven to be abortifacients, Your Honor, and .... (interrupted)

Justice Del Castillo:

I am not just referring to the Food and Drug Administration. My point is, let's put it to test because this is just xx x evidentiary, it's a matter of fact, we cannot make generalizations. [They're] saying that these are not abortifacients, you are saying x x x that they are abortifacients, then let's prove it. That is just my suggestion.

Atty. Noche:

If Your Honor, please, may I, you know, bring out the very important point that we have always tried to bring out, Your Honor. Section 12, otherwise, we forget this, Section 12, Article II mandates the protection of the unborn from conception. And that protection is not just from death but from any risks or threat of harm, or injury or any form or degree, remote or direct, momentary or permanent and it has proven already that anything, Your Honor, that you introduce into the body that disrupts the, you know, workings in the uterus or the physiology in the uterus is hannful to the fertilized ovum so ..... (interrupted)

Justice Del Castillo:

Yes, Counsel, but the protection comes in only after, if I may grant you, the fertilization. But before that, the unborn is not protected, the unborn is protected from conception so before that it's not [a] regulated act.

Atty. Noche:

If Your Honor, please, before fertilization there is no person to speak of.

Justice Del Castillo:

Exactly.

Atty. Noche:

There is no fertilized ovum to speak of, there is no unborn that needs any protection, Your Honor, at least, under Section 12. So, really the protection that we are referring to under Section 12 is protection that starts from conception. That is when we say they're already a person in that fertilized ovum that the Constitution mandates, that the State protects, Your Honor.

Justice Del Castillo:

I even concede that upon the meeting of the egg and the sperm x x x there is life already, it should be protected, I concede that.

Atty. Noche:

Thank you, very much, Your Honor, for saying that because that's really life there.

Justice Del Castillo:

Thank you, Counsel.33

Under Section 4(a) of the RH Law, the FDA is charged with the task of determining which contraceptives are not abortifacients:

SEC. 4. Definition ofTerms. – For the purpose of this Act, the following terms shall be defined as follows:

(a) Abortifacient refers to 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. (Emphasis supplied)

The drugs or devices, which will be approved by the FDA, will then be included in the National Drug Formulary and Essential Drugs List as provided under Section 9 of the RH Law:

SEC. 9. The Philippine National Drug Formulary System and Family Planning Supplies. - The National Drug Formulary shall include hormonal contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family planning products and supplies. The Philippine National Drug Formulary System (PNDFS) shall be observed in selecting drugs including family planning supplies that will be included or removed from the Essential Drugs List (EDL) in accordance with existing practice and in consultation with reputable medical associations in the Philippines. For the purpose of this Act, any product or supply included or to be included in the EDL must have a certification from the FDA that said product and supply is made available on the condition that it is not to be used as an abortifacient.

These products and supplies shall also be included in the regular purchase of essential medicines and supplies of all national hospitals: Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency contraceptive pills, postcoital pills, abortifacients that will be used for such purpose and their other forms or equivalent.

Contrary to the interpretation of petitioners, Section 9 does not automatically mandate the inclusion of hormonal contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family planning products and supplies in the National Drug Formulary and Essential Drugs List. This provision should be read in relation to Section 4(a) of the RH Law which requires the FDA to first determine whether the subject contraceptives are non-abortifacients, among other standards (e.g., safe, effective). The law should be construed in such a way as to avoid a declaration of unconstitutionality.

The IRR provides the following guidelines for such determination, viz:

Section 7.04 FDA Certification of Family Planning Supplies. The FDA must certify that a family planning drug or device is not an abortifacient in dosages of its approved indication (for drugs) or intended use (for devices) prior to its inclusion in the EDL. The FDA shall observe the following guidelines in the determination of whether or not a drug or device is an abortifacient:

a) As defined in Section 3.01 (a) of these Rules, a drug or device is deemed to be an abortifacient if it is proven to primarily34 induce 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;

b) The following mechanisms do not constitute abortion: the prevention of ovulation; the direct action on sperm cells prior to fertilization; the thickening of cervical mucus; and any mechanism acting exclusively prior to the fertilization of the egg by the sperm;

c) Jn making its determination, the FDA shall use the best evidence available, including but not limited to: meta-analyses, systematic reviews, national clinical practice guidelines where available, and recommendations of international medical organinrtions;

d) Jn the presence of conflicting evidence, the more recent, better-designed, and larger studies shall be preferred, and the conclusions found therein shall be used to determine whether or not a drug or device is an abortifacient; and

e) Should the FDA require additional expertise in making its determination, an independent evidence review group (ERG) composed of leading experts in the fields of pharmacodynarnics, medical research, evidence-based medicine, and other relevant fields may be convened to review the available evidence. The FDA shall then issue its certification based on the recommendations of the ERG.

It is only proper for the Court to recognize that the FDA possesses the requisite technical skills and expertise in determining whether a particular drug or device is an abortifacient. It is also only proper that the Court accords deference to this legislative delegation of powers to the FDA for this purpose. However, for obvious reasons, the unborn cannot appear, on its behalf, to represent or protect its interest, bearing upon its very right to life, when the FDA proceeds to make such a determination.

Within this framework of implementation, and given the unique status of the unborn and the exceptional need to protect its right to life, the Court must step in by directing the FDA to issue the proper rules of procedure in the determination of whether a drug or device is an abortifacient under the RH Law. Such rules must sufficiently safeguard the right to life of the unborn. As a penumbra of its power to issue rules to protect and enforce constitutional rights and its power to disapprove rules of procedure of quasi-judicial bodies, the Court has the power and competency to mandate the minimum requirements of due process in order to sufficiently safeguard the right to life of the unborn in the proceedings that will be conducted before the FDA. 1bis is in line with the declared policy and numerous provisions of the RH Law according utmost respect and protection for the right to life of the unborn.

In determining whether a drug or device is an abortifacient, the FDA will necessarily engage in a quasi-judicial function. It will determine whether a set of facts (active properties or mechanisms of a drug or device) comply with a legal standard (definition of non-abortifacient) which will ultimately bear upon the right to life of the unborn. Considering that quasi-judicial bodies involved in, say, rate-fixing follow the due process requirements of publication, notice and hearing, where the lesser right to property is involved, then withfar greater reason should the proceedings before the FDA require publication, notice and hearing.

Any erroneous determination the FDA makes can result to the destruction or loss of the life of the unborn. Plainly, the life and death of countless, faceless unborns hang in the balance. Thus, the determination should be made with utmost care where the interest of the unborn is adequately represented.

Consequently, the Solicitor General should be mandated to represent the unborn and the State's interest in the protection of the life of the unborn from conception/fertilization in the proceedings before the FDA. If the Solicitor General is made to represent the State's interest in, say, cases involving declaration of nullity of marriage, then, again, with far greater reason should it be made to represent the unborn and State's interest in protecting the life of the unborn. Interested parties should also be allowed to intervene in the proceedings for all persons have a valid and substantial interest in the protection of the right to life of the unborn under the concept of intergenerational responsibility.35

In making the aforesaid determination, the FDA should follow the strict standards laid down in the Constitution, as adopted in the RH Law, as to what constitute allowable contraceptives. The IRR has provided guidelines as to what constitute allowable contraceptives but these guidelines should be applied only insofar as they do not contravene the standard laid down in the Constitution. Given the advances in science and medicine, drugs or devices may be developed which satisfy the guidelines in the IRR but still result to the destruction of the unborn from fertilization. (This was the case with the contraceptive with a fail-safe mechanism which required the voiding of the subject qualifiers in the IRR's definition of terms, as previously discussed.)

The Constitution is always the polestar; the drug or device should not harm or destroy the life of the unborn from conception/fertilization. Necessarily, the rule of evidence to be followed by the FDA, in consonance with the Constitution, is that, in weighing the evidence as to whether a drug or device is an abortifacient, all reasonable doubt should be resolved in favor of the right to life of the unborn from conception/fertilization.

Finally, the other requirements of administrative due process laid down in the seminal case of Ang Tibay v. The Court of Industrial Relations36 should be followed.

The other details of the rules of procedure should be left to the sound discretion of the FDA. However, the FDA must ensure that these details sufficiently safeguard the life of the unborn.

In sum, I find that the Court should issue an order:

(1) directing the FDA to formulate the rules of procedure in the screening, evaluation and approval of all contraceptives that will be used under the RH Law,

(2) the rules of procedure shall contain the following minimum requirements of due process:

(a) publication, notice and hearing,

(b) the Solicitor General shall be mandated to represent the unborn and the State's interest in the protection of the life of the unborn,

(c) interested parties shall be allowed to intervene,

(d) the standard laid down in the Constitution, as adopted under the RH Law, as to what constitute allowable contraceptives shall be strictly followed, i.e., those which do not harm or destroy the life of the unborn from conception/fertilization,

(e) in weighing the evidence, all reasonable doubts shall be resolved in favor of the right to life of the unborn from conception/fertilization, and

(f) the other requirements of administrative due process, as summarized in Ang Tibay, shall be complied with.

The FDA should be directed to submit these rules of procedure, within 30 days from receipt of the Court's decision, for the Court's appropriate action.

The FDA should be directed to inform
this Court as to whether the
contraceptives that it previously
approved and is currently available for
use and distribution in our jurisdiction
comply with the constitutional standard
of allowable contraceptives.

In his Memorandum, the Solicitor General stated that—

49. There are currently fifty-nine (59) contraceptive drugs and seven (7) intrauterine devices duly approved for sale by the FDA and currently available in the market. x x x37

However, the Solicitor General did not categorically state that these drugs and devices were screened, evaluated and/or tested under the standard laid down in Article II, Section 12 of the Constitution, as adopted under Section 4(a) of RH Law. The apparent reason for this seems to be that these drugs and devices were screened, evaluated and/or tested by the FDA prior to the enactment of the RH Law and the ruling that the Court now categorically makes in this case.

Plainly, it would not make sense to impose strict rules of procedure for the evaluation of contraceptives that will be used under the RH Law while allowing a possible continuing violation of the Constitution relative to contraceptive drugs and devices that were previously approved by the FDA and are currently being used and/or distributed in our jurisdiction.

There is, thus, an urgent necessity to determine if the aforesaid contraceptive drugs and devices comply with the Constitution and RH Law, i.e. they do not harm or destroy the unborn from conception/fertilization, in general, and they do not prevent the implantation of the fertilized ovum, in particular. Also, of particular significance is whether the FDA evaluated the currently available contraceptive drugs and devices against the standard laid down, as discussed in a previous subsection, concerning unallowable contraceptives which (1) do not provide a 100% guarantee of preventing fertilization and (2) has a fail-safe mechanism which destroys the fertilized ovum if fertilization occurs (e.g., prevents the implantation of the fertilized ovum on the uterus).

Thus, the FDA should be ordered to immediately inform this Court whether its previously approved and the currently available contraceptive drugs and devices in our jurisdiction were screened, evaluated and/or tested against the afore-discussed general and specific standards. It should be emphasized that the FDA is not being asked to re-screen, re-evaluate or re-test the aforesaid contraceptive drugs and devices but only to inform this Court if they were screened, evaluated and/or tested against the constitutional and statutory standards that the Court upholds in this decision. Thus, this will not take an inordinate amount of time to do considering that the files should be readily available with the FDA. This information will allow the Court to take immediate remedial action in order to protect and defend the life of the unborn from conception/fertilization, if the circumstances warrant. That is, if the contraceptive drugs or devices were not screened, evaluated and/or tested against the constitutional and statutory standards that the Court upholds in this decision, then it would be necessary to suspend their availability in the market, as a precautionary measure, in order to protect the right to life of the unborn pending the proper screening, evaluation and/or testing through the afore-discussed rules of procedure that the FDA is directed to issue.

It should be noted that Section 7.05 of the IRR effectively and impliedly mandates that these existing drugs and devices be screened, evaluated and/or tested again by the FDA against the standard or definition of abortifacient under Section 4(a) of the RH Law. But the serious flaw in this procedure is that, in the meantime, the aforesaid drugs and devices shall remain available in the market pending the FDA's certification, to wit:

Section 7.05 Drugs, Supplies, and Products with Existing Certificates of Product Registration. Upon the effectivity of these Rules, all reproductive health care drugs, supplies, and products that have existing Certificates of Product Registration (CPRs) from the FDA shall be provided certifications stating that they do not cause abortion when taken in dosages for their approved indications.

Thus, if such drugs and devices are later determined by the FDA to be an abortifacient under the standard laid down in the Constitution, as adopted under the RH Law, then the loss or destruction of many unborn may have already resulted or taken place. As previously noted, the proper course of action is to immediately determine if they were screened, evaluated and/or tested against the afore-discussed general and specific constitutional and statutory standards. And, if not, to immediately suspend their availability in the market, as a precautionary measure, in order to safeguard the right to life of the unborn pending the proper screening, evaluation and/or testing through the afore-discussed rules of procedure that the FDA is directed to issue.

The life of the unborn should not be placed at risk any minute longer.

The DOH in coordination with all concerned government agencies should be directed to formulate the rules and regulations or guidelines that will govern the purchase and distribution/ dispensation of the product or supply which will be covered by the FDA's certification, under Section 9 of the RH Law, that said product and supply is made available on the condition that it is not to be used as an abortifacient.

Section 9 of the RH Law states–-

SEC. 9. The Philippine National Drug Formulary System and Family Planning Supplies. – The National Drug Formulaiy shall include hormonal contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family planning products and supplies.1âwphi1 The Philippine National Drug Formulary System (PNDFS) shall be observed in selecting drugs including family planning supplies that will be included or removed from the Essential Drugs List (EDL) in accordance with existing practice and in consultation with reputable medical associations in the Philippines. For the purpose of this Act, any product or supply included or to be included in the EDL must have a certification from the FDA that said product and supply is made available on the condition that it is not to be used as an abortifacient.

These products and supplies shall also be included in the regular purchase of essential medicines and supplies of all national hospitals: Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency contraceptive pills, postcoital pills, abortifacients that will be used for such purpose and their other forms or equivalent. (Emphasis supplied)

Preliminarily, the necessity of imposing proper rules of procedure, which sufficiently safeguards the right to life of the unborn, in the FDA's determination of what will be considered allowable contraceptive drugs and devices upon implementation of the RH Law, can be better appreciated if viewed within the context of Section 9 of the RH Law, as afore-quoted. Once the FDA approves contraceptive drugs and devices like hormonal contraceptives, intrauterine devices, injectables and other family planning products and supplies, they will be included in the Essential Drugs List (EDL ). As manifested by the Solicitor General, only drugs and medicines found in the EDL/Philippine National Drug Formulary System (PNDFS) may be dispensed (whether for free or for a reduced amount) by public health care facilities.38 These contraceptive drugs and devices, thus, become widely and easily accessible to the public. In fact, the IRR devolves the distribution of these contraceptives up to the barangay level with the DOH as the lead agency tasked with its procurement and distribution. Thus, an erroneous determination by the FDA has an immediate and widespread impact on the right to life of the unborn.

However, there is another even more crucial aspect in the implementation of the RH Law which has far greater impact on the right to life of the unborn than the FDA's determination of what are allowable contraceptives. It is found in the proviso of Section 9 which states "any product or supply included or to be included in the EDL must have a certification from the FDA that said product and supply is made available on the condition that it is not to be used as an abortifacient." In other words, under this section, products and supplies (hereinafter "subject products and supplies") which are abortifacients (or have abortifacient properties) will also be included in the EDL provided that these products and supplies will not be used as abortifacients as certified by the FDA.

I share the view of the ponencia that the aforesaid certification is empty and absurd. Such certification cannot guarantee that the subject products and supplies will not be used as abortifacients. The ponencia modifies the phrase from "it is not to be used" to "it cannot be used" in order to protect the right to life of the unborn.

With due respect, I am of the view that the change in wording will not alter the result. The certification is of limited value. Even with the change in wording, there will be no guarantee that the subject products and supplies will not be used as abortifacients. I submit that the proper area that should be strictly scrutinized is the implementing rules and regulations of Section 9 relative to the purchase and distribution of the subject products and supplies.

But before going to that, I find it necessary to discuss the rationale of this proviso in Section 9. The Senate Journal of October 8, 2012 summarizes the discussions leading to its final version, viz:

On page 9, line 8 of the bill, after the word "PRACTICE" and the period (.), Senator Lacson proposed the insertion of a new sentence to read: FOR THE PURPOSE OF THIS ACT, ANY FAMILY PLANNING PRODUCT OR SUPPLY INCLUDED OR TO BE INCLUDED IN THE ESSENTIAL DRUG LIST MUST HAVE A CERTIFICATION FROM THE FOOD AND DRUG ADMINISTRATION (FDA) OF THE PHILIPPINES THAT SAID PRODUCT AND SUPPLY HAS NO ABORTIF ACIENT OR ABORTICIDE EFFECT.

Senator Cayetano (P) expressed willingness to accept the amendment, subject to style, but she explained that there are certain medications which are effectively abortifacient but are not used for such purpose. These medications, she explained, cannot be simply banned because they are necessary drugs for purposes for which they were introduced and are prescribed under very strict guidelines by a medical practitioner.

She suggested that an amendment be made to require the issuance of a certification that such drugs should be used for their intended medical purpose and not as abortifacient.

Citing another example, Senator Cayetano (P) said that a particular drug is being prescribed to teenagers to treat the breakout of acne, provided an assurance is given that the patient is not pregnant or otherwise sexually active because it could cause severe physical abnormality to a fetus like being born without limbs. She noted that the said drug could not be banned because it has to be used for an intended purpose.

Senator Lacson expressed apprehension that a woman who has acne and wishes to have an abortion may take advantage of the essential drug being provided by the government to avail of its abortive side effect.

Senator Cayetano (P) agreed with Senator Lacson that the said essential medicine should not be used as abortifacients. However, she said that the medical consultants present in the gallery point out that a number of drugs with similar effect are actually available in the market and banning these drugs could pose a great danger as they are being prescribed for a particular purpose. In addition to the literature that come with the drugs, she suggested that stronger warnings be made by health professionals that in no case shall these drugs be prescribed and made available as abortifacients.

Upon query of Senator Lacson, Senator Cayetano (P) replied that these drugs that are prescribed to treat very serious medical conditions have been available in the market for the longest time such that withdrawing them from the market would be very detrimental to the health system in the country. For instance, she said that Oxytocin is used to induce labor in conditions necessitating that the baby be delivered right away, like in cases when the baby's umbilical cord has encircled his/her neck. She said that Oxytocin is actually intended to save a baby's life; thus, it should not be given to a two-month pregnant woman. She reiterated that withdrawing an essential medicine such as Oxytocin from the market would totally debilitate the maternity health care system.

Asked how it could be ensured that such and similar drugs would not be used as abortifacients. Senator Cayetano (P) replied that a health professional who prescribes a drug such as Oxytocin to a woman who is in her first trimester of pregnancy is clearly prescribing it as an abortifacient and should therefore be held liable under the Revised Penal Code.

Asked whether the government would be providing drugs such as Oxytocin. Senator Cayetano (P) said that health care providers involved in childbirth have expressed their desire to have access to such drugs because these are essential medicines that could actually improve maternal mortality rate since it could enable them to immediately save the life of a child. However, she underscored the importance of ensuring that the FDA would be very strict on its use.

At this juncture, Senator Sotto asked Senator Lacson what his particular proposed amendment would be, Senator Lacson replied that he would like to insert a provision, subject to style, that would ensure that the drugs cannot be used as abortifacients but they can be used for the purpose for which they were introduced in the market. Senator Sotto suggested that the Body be presented with the actual text of the amendment before it approves it. (Emphasis supplied)

As can be seen, the purpose of including the subject products and supplies in the EDL is their importance in treating certain diseases and/or their use as life-saving drugs. Yet, at the same time, these products and supplies can be used as abortifacients.

The inclusion of these products and supplies in the EDL, under Section 9 of the RH Law, will necessarily present numerous challenges. On the one hand, the State has a substantial interest in making available the subject products and supplies in order to treat various diseases and, in some instances, these products and supplies are necessary to save lives. On the other hand, by allowing the subject products and supplies to be included in the EDL, the right to life of the unborn may be jeopardized if access to these products and supplies are easily obtained by unscrupulous individuals.

The answer to the problem was touched on during the legislative deliberations. It lies in the strict regulation of these products and supplies. The IRR states:

Section 8.03 Review of &isting Guidelines. Within thirty (30) days from the effectivity of these Rules, the DOH shall review its existing guidelines for the procurement and distribution of reproductive health supplies and products including life-saving drugs, and shall issue new guidelines that are consistent with these Rules.

x x x x

Section 8.08 Logistics Management. The DOH shall be responsible for the transportation, storage, and distribution of reproductive health products and supplies to their respective destinations. Upon delivery to the local government units, the respective provincial, city, and/or municipal health officers shall assume responsibility for the supplies and shall ensure their prompt, continuous, and equitable distribution to all the applicable hospitals, health centers, or clinics within their respective areas of responsibility, taking into consideration existing storage facilities and other factors that may hinder the effective distribution/use of the said supplies.

The DOH shall designate a regional officer to oversee the supply chain management of reproductive health supplies and/or health products in his or her respective area, as assigned by the DOH The officer shall promote speedy and efficient delivery of supplies, with the end goal of expedited distribution of quality-checked health products to the local government units. Towards this end, innovations on logistics and supply management, such as direct delivery of goods to the points of distribution, consistent with the intent and scope of these Rules shall be encouraged.

Provided, That where practicable, the DOH or LGUs may engage civil society organizations or private sector distributors to accomplish the intent of this provision subject to the provisions of applicable rules and regulations.

Within sixty (60) days from the effectivity of these Rules, the DOH shall issue guidelines for the implementation of this provision.

Section 8.09 LGU-initiated Procurement. An LGU may implement its own procurement, distribution and monitoring program consistent with these Rules and the guidelines of the DOH.

Clearly, then, the primary responsibility for the regulation of the subject products and supplies lies with the DOH. It is not certain whether the DOH has issued the rules and regulations relative to the purchase and distribution of these products and supplies. The Temporary Restraining Order (TRO) issued by this Court may have pre-empted the issuance of the subject guidelines relative to the purchase and distribution of these products and supplies.

But, again, pursuant to the expanded jurisdiction of this Court and as a penumbra of its power to issue rules for the protection and enforcement of the right to life of the unborn as well as the exceptional need to protect such life, the Court can require that, in the promulgation by the DOH of the subject rules and regulations or guidelines, certain minimum requirements of due process shall be followed.

I find that, under these premises, publication, notice and hearing should precede the issuance of the rules and regulations or guidelines which will govern the purchase and distribution of the subject products and supplies. In other words, there should be public hearings and/or consultations. The Solicitor General should be mandated to represent the unborn and the State's interest in the protection of the life of the unborn in these proceedings before the DOH. And interested parties should be allowed to intervene.

Concededly, the DOH shall issue the rules and regulations or guidelines pursuant to its quasi-legislative (not quasi-judicial) powers, however, again, there is no obstacle to requiring that this rule-making process be subjected to a higher degree of due process, considering that the requirements of publication, notice and hearing are mandated in, say, the issuance of tax regulations where the lesser right to property is involved. With far greater reason should publication, notice and hearing be mandated because the subject rules will ultimately impact the right to life of the unborn. Also, while the Court cannot order the DOH to submit the subject rules for the Court's appropriate action since it involves a quasi-legislative function, there is nothing to prevent an aggrieved party from challenging the subject rules upon its issuance, ifthe circumstances warrant, based on grave abuse of discretion under the Court's expanded jurisdiction.

The rules and regulations or guidelines should provide sufficient detail as to how the subject products and supplies will be purchased and distributed or dispensed: what these products and supplies are, who shall be authorized to purchase them; who shall be authorized to store them; who shall be authorized to distribute or dispense them; the limits of what can be distributed or dispensed by particular individuals or entities; how the distribution or dispensation shall be strictly regulated; how accountability shall be enforced; and so forth.

Admittedly, the formulation of the proper rules and regulations or guidelines will necessarily present numerous challenges. The possible difficulties were already brought out in the afore-cited legislative deliberations.

Take the example of the girl with acne. The drug that is needed to treat the acne is an abortifacient. Several challenges will face the regulator in this regard. If the drug is given to her by prescription, nothing will prevent the girl, upon purchasing the drug, to give such drug to her pregnant friend who intends to have an abortion. One option that the regulator has is to require that the drug be personally administered by her (the girl's) physician so that there is no danger that the drug could be misused by the girl. The regulator must weigh whether the protection of the life of the unborn is greater than the inconvenience imposed on the girl of having to frequent the clinic of her physician so that the drug can be personally administered to her. Here, the answer is obvious although there may be other means of regulation that can achieve the same end. Or take the example of health workers being given life-saving drugs which may also be used as abortifacients. The regulator now faces the challenge of how to make sure that the health worker does not abuse the life-saving drugs that will be placed in his or her control and possession. This would involve, among others, strict monitoring and inventory procedures.

I do not intend to provide definite answers to the challenges that will face regulators relative to the regulation of the subject products and supplies. My goal is a modest one: to point out the difficulty and complexity of the problem of regulating these products and supplies. This provides greater reason why a higher level of due process is necessary in the proceedings which will result to the issuance of the rules and regulations or guidelines relative to the purchase and distribution or dispensation of the subject products and supplies. For very easily, given the complexity or difficulty of the problem of regulation, the interests of the unborn may be relegated to the sidelines.

In fine, the afore-discussed minimum due process requirements are the only meaningful way to give effect to the constitutional right to life of the unborn from conception/fertilization under the premises. It is worth repeating, as elsewhere stated, that the unborn cannot represent itself in the DOH's rule-making process which will ultimately bear upon its very right to life. Without the utmost care, transparency and proper representation of the unborn in the DOH's proceedings, which will result to the issuance of rules and regulations or guidelines on the purchase and distribution of the subject products and supplies, it is not difficult to discern how easily the right to life of the unborn may be trampled upon.

Pending the issuance and publication of these rules by the DOH, the TRO insofar as the proviso in Section 9 of the RH Law, as implemented by Section 7.0339 of the IRR, relative to the subject products and supplies, which are made available on the condition that they will not be used as an abortifacient, should remain in force.

OTHER ISSUES

With respect to the other constitutional issues raised in this case, I state my position in what follows- concurring in some, dissenting in others- relative to the results reached by the ponencia:

The ponencia ruled that the RH Law adequately protects the right to health.

While I agree that the right to health is not violated, I wish to address here

in greater detail petitioners claims.

Article II, Section 15 in relation to Article XIII, Sections 11 to 13 of the Constitution provides:

Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.

x x x x

Health

Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all people at affordable cost. There shall be priority for the needs of the underprivileged sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers.

Section 12. The State shall establish and maintain an effective food and drug regulatory system and undertake appropriate health manpower development and research, responsive to the country's health needs and problems.

Section 13. The State shall establish a special agency for disabled persons for rehabilitation, self-development and self-reliance, and their integration into the mainstream of society.

The right to health is, thus, recognized as a fundamental right.

Petitioners argue that the contraceptives that will be made available under the RH Law have grave side-effects that will adversely affect the users, especially women, in violation of the right to health.

I find petitioners' argument unavailing.

While indeed the RH Law will make available contraceptives that may have harmful side-effects, it is necessary to remember that the law does not impose their use upon any person. Understandably, from petitioners' point of view, it would seem "irrational" for (1) a person to take contraceptives, which have known harmful side effects and, in the long term, even lead to premature death, and (2) the government to subsidize the same in order to prevent pregnancy or to properly space childbearing given that there are other safer means and methods of family planning. But the weighing of which value is superior to the other is a matter left to the individual's sound judgment and conscience. It is his or her choice; an axiom of liberty; an attribute of free will. Men and women are free to make choices that harm themselves, like cigarette-smoking or excessive intake of alcohol, in order to attain a value that they perceive is more important than their own health and well-being. For as long as these choices are made freely (and do not harm the unborn from conception/fertilization insofar as this case is concerned), the State cannot intervene beyond ensuring that the choices are well-informed absent a clear and unequivocal constitutional or statutory40 command permitting it to do so.

Under the RH Law, there is nothing to suggest that the contraceptives will be made available without properly informing the target users of their possible harmful side effects. The law itself mandates complete information-dissemination and severely penalizes deliberate misinformation. Section 19(c) of the RH Law in relation to Sections 7.07 to 7.11 of the IRR cover this concern, viz:

SEC. 19. Duties and Responsibilities. – x x x

(c) The FDA shall issue strict guidelines with respect to the use of contraceptives, taking into consideration the side effects or other hannful effects of their use.

Section 7.07 Technical Requirements for Family Planning Products. Technical requirements for applications for product registration shall include a product insert or information leaflet for the consumers and health care providers. Appropriate information for the consumers, as determined by the FDA, shall be written in Filipino and/or local languages, as appropriate. The text or wording shall be in layman's terms. Graphics shall be used as appropriate for emphasis or guidance of the consumer using the product: Provided, That highly technical information such as medical terminology may be retained in its English version.

At a minimum, the information on the insert or leaflet for consumers or health professional/worker shall include the name of the product, pharmacological category (when applicable), use or indication, proper use, contraindications and any precaution or health warning, and possible side effects and potential health risks. Side effects, adverse effects and other possible health effects shall be clearly described.

Within thirty (30) days from the effectivity of these Rules, the FDA shall develop guidelines for the implementation of this provision.

Section 7.08 Provision of Product Iriformation. The FDA shall provide the public access to information regarding a registered reproductive health product. Among others, the FDA shall post in its website all approved reproductive health products (generic and branded) with all relevant information relevant to proper use, safety and effectiveness of the product, including possible side effects and adverse reactions or events. As appropriate, the FDA shall issue an advisory to inform the consumers about relevant developments regarding these products.

Section 7.09 Post-Marketing Surveillance. All reproductive health products shall be subjected to Post-Marketing Surveillance (PMS) in the country. The PMS shall include, but not be limited to: examining the health risk to the patient, and the risk of pregnancy because of contraceptive failure.

The FDA shall have a sub-unit dedicated to reproductive health products under the Adverse Drug Reaction Unit who will monitor and act on any adverse reaction or event reported by consumers and health professionals or workers. The system for reporting adverse drug reactions/events shall include online reporting at the FDA and DOH website, along with established reporting mechanisms, among others.

Companies with registered products shall be required to have a Post-Marketing Surveillance department, division, section, unit, or group that will monitor and investigate all health-related reactions or risks, or failure of the product to prevent pregnancy.

Section 7.10 Product Monitoring. To ensure the stability, safety, and efficacy of reproductive health products, the FDA shall oversee the provider and/or distributor's compliance with proper distribution, storage, and handling protocols. This shall be done in coordination with private or public reproductive health programs, and the company providing the supplies. The FDA inspectors shall inspect outlets for proper storage and handling of products and supplies, and act on complaints in the field in coordination with the office of the Deputy Director General for Field Office.

Section 7.11 Renewal of Product Registration. In the renewal of product registration of reproductive health products, the FDA shall consider, among others, the following: the Adverse Drug Reaction I Adverse Event Reports, PMS reports, and studies on the safety and effectiveness conducted by the PMS unit of the product company.

Section 7.12 Denial or Revocation of Product Registration. After the careful evaluation of PMS data and other supporting evidence, the FDA shall deny or revoke the registration of reproductive health products that are ineffective or have undesired side effects that may be found during testing, clinical trials and their general use.

We must, thus, reasonably presume that the health service provider will adequately inform the potential users of the contraceptives as to its possible hannful side effects. In any event, petitioners may come before the courts, at the proper time, if, in the implementation of the law, the right to health of the users of the contraceptives are not properly protected because they are given inaccurate information on the contraceptives' possible harmful effects.

3 - Freedom of Religion

3.a - Establishment Clause

I agree with the ponencia that the RH Law does not violate the Establishment Clause for the reasons stated in the ponencia.

3.b - Free Exercise Clause vis-a-vis
the Duty to Inform [Section 23(a)(l)) and
the Duty to Refer [Section 23(a)(3))

I shall jointly discuss the constitutional validity of the duty to inform and duty to refer under the RH Law because they are intricately related to each other.

The ponencia ruled that the duty to inform and duty to refer imposed on the conscientious objector is unconstitutional for being violative of the Free Exercise of Religion Clause, to wit:

Resultantly, the Court finds no compelling state interest which would limit the free exercise clause of the conscientious objectors, however few in number. Only the prevention of an immediate and grave danger to the security and welfare of the community can justify the infringement of religious freedom. If the government fails to show the seriousness and immediacy of the threat, State intrusion is constitutionally unacceptable.

xx xx

Apparently, in these cases, there is no immediate danger to the life or health of an individual in the perceived scenario of the subject provisions. After all, a couple who plans the timing, number and spacing of the birth of their children refers to a future event that is contingent on whether or not the mother decides to adopt or use the information, product, method or supply given to her or whether she decides to become pregnant at all. On the other hand, the burden placed upon those who object to contraceptive use is immediate and occurs the moment a patient seeks consultation on reproductive health matters.

Moreover, granting that a compelling interest exists to justify the infringement of the conscientious objector's religious freedom, the respondent have failed to demonstrate "the gravest abuses, endangering paramount interests" which could limit or override a person's fundamental right to religious freedom. Also, the respondents has not presented any government effort exerted to show that the means it seeks to achieve its legitimate state objective is the least intrusive means. Other than the assertion that the act ofreferring would only be momentary, considering that the act of referral by conscientious objector is the very action being contested as violative of religious freedom, it behooves the respondents to demonstrate that no other means can be undertaken by the State to achieve its objective without violating the rights of the conscientious objector. The health concerns of women may still be addressed by other practitioners who may perform reproductive health-related procedures with open willingness and motivation. Suffice it to say, a person who is forced to perform an act in utter reluctance deserves the protection of the Court as the last vanguard of constitutional freedoms.

x x x x

The Court need not belabor the issue of whether the right to be exempt from being obligated to render reproductive health service and modem family planning methods, includes exemption from being obligated to give reproductive health information and to render reproductive health procedures. Clearly, subject to the qualifications and exemptions earlier discussed, the right to be exempt from being obligated to render reproductive health service and modem family planning methods, necessarily includes exemption from being obligated to give reproductive health information and to render reproductive health procedures. The terms "service" and "methods" are broad enough to include the providing of information and the rendering of medical procedures.41

I agree that the duty to refer, under pain of penal liability, placed on the conscientious objector is unconstitutional, however, I find that the conscientious objector's duty to inform is constitutional.

To place the Free Exercise of Religion Clause challenge in its proper context, it is necessary to distinguish two key concepts in the RH Law: (1) the duty to inform, and (2) the duty to refer.

The main provisions42 on the duty to inform and duty to refer vis-a-vis the conscientious objector is found in Section 23(a)(l) in relation to 23(a)(3) of the RH Law, viz:

SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(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;

x x x x

(3) Refuse to extend quality health care services and information on account of the person's marital status, gender, age, religious convictions, personal circumstances, or nature of work: Provided, That the conscientious objection of a health care service provider based on his/her ethical or religious beliefs shall be respected; however, the conscientious objector shall immediately refer the person seeking such care and services to another health care service provider within the same facility or one which is conveniently accessible: Provided, farther, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344, which penalizes the refusal of hospitals and medical clinics to administer appropriate initial medical treatment and support in emergency and senous cases;

The duty to inform is embodied in the above-quoted Section 23(a)(1), which penalizes a public or private health care service provider for: (1) knowingly withholding information or restricting the dissemination of information, and/or (2) intentionally providing incorrect information; where "information" pertains to the 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.

This provision, thus, seeks to ensure that all persons, who are qualified to avail of the benefits provided by the law, shall be given complete and correct information on the reproductive health programs and services of the government under the RH Law. It does not provide any exception to the duty to inform. Thus, a conscientious objector is mandated to provide complete and correct information even if this will include information on artificial contraceptives to which he or she objects to on religious grounds. Otherwise, he or she shall suffer the penal liability under the law.

The duty to refer, on the other hand, is provided in the proviso of Section 23(a)(3), which is likewise quoted above. This provision penalizes a public or private health care service provider for refusing to extend quality health care services and information on account of a person's marital status, gender, age, religious convictions, personal circumstances, or nature of work. However, it respects the right of the conscientious objector by permitting him or her to refuse to perform or provide the health care services to which he or she objects to on religious or ethical grounds provided that he or she immediately refers the person seeking such care and services to another health care service provider within the same facility or one which is conveniently accessible. As an exception to the exception, the conscientious objector cannot refuse to perform or provide such health care services if it involves an emergency condition or serious case under Republic Act No. 8344.43

It should be noted that the first sentence of Section 23(a)(3) of the RH Law refers to the refusal to extend quality health care services and information. However, the proviso in the aforesaid section, which imposes the duty to refer on the conscientious objector, is limited to referring the person to another health care service provider for purposes of availing health care services only, not health care services and information. The implication is that the conscientious objector is required to provide complete and correct information, and, in the event that the person asks for health care services that the conscientious objector objects to on religious or ethical grounds, the conscientious objector has the duty to refer the person to another health care service provider. This interpretation is in accord with the wording of Section 23(a)(1) of the RH Law, which provides no exceptions to the duty to inform.

It should be further noted, and not insignificantly, that Section 23(a)(3) of the RH Law does not state that the conscientious objector should refer the person to another health care service provider who can perform or provide the heath care services to which the conscientious objector objects to on religious or ethical grounds. Thus, a literal reading of this provision would permit the conscientious objector to refer the person to another health care service provider who is himself a conscientious objector. The IRR attempts to fill this ambiguity in Section 5.24(b) to (e) thereof, viz:

Section 5.24 Public Skilled Health Professional as a Conscientious Objector. In order to legally refuse to deliver reproductive health care services or information as a conscientious objector, a public skilled health professional shall comply with the following requirements:

x x x x

b) Extraordinary diligence shall be exerted to refer the client seeking care to another skilled health professional or volunteer willing and capable of delivering the desired reproductive health care service within the same facility;

c) If within the same health facility, there is no other skilled health professional or volunteer willing and capable of delivering the desired reproductive health care service, the conscientious objector shall refer the client to another specific health facility or provider that is conveniently accessible in consideration of the client's travel arrangements and financial capacity;

d) Written documentation of compliance with the preceding requirements; and

e) Other requirements as determined by the DOH.

In the event where the public skilled health professional cannot comply with all of the above requirements, he or she shall deliver the client's desired reproductive health care service or information without further delay. x x x

This notwithstanding, and for purposes of the succeeding discussion on the Free Exercise of Religion Clause, the necessary premise is that the duty to refer involves referring the person to another health care service provider who will perform or provide the health care services to which the conscientious objector objects to on religious or ethical grounds. Though this is not explicitly stated in the RH Law, the law must be so reasonably construed given the policy of the law to provide universal access to modem methods of family planning.

As noted earlier, the duty to inform and the duty to refer are intricately related. The reason is that the duty to inform will normally precede the duty to refer. The process of availing reproductive health programs and services under the RH Law may be divided into two phases.

In the first phase, the person, who goes to a health service provider to inquire about the government's reproductive health programs and services under the RH Law, will be provided with complete and correct information thereon, including the right to informed choice and access to a full range of legal, medically-safe, non-abortifacient and effective family planning methods.

In the second phase, after receiving the information, the person would then ordinarily reach a decision on which reproductive health programs and services, if any, he or she wishes to avail. Once he or she makes a decision, he or she now asks the health service provider where and how he or she can avail of these programs or services.

From the point of view of the health care service provider, the first phase involves the transmission of information. Petitioners claim that this act of giving complete and correct information, including information on artificial contraceptives, imposes a burden on a conscientious objector, like a Catholic doctor, because he or she is required to give information on artificial contraceptives which he or she believes to be immoral or wrong.

I disagree.

Petitioners failed to convincingly show that the act of giving complete and correct information, including those on artificial contraceptives, burdens a Catholic doctor's religious . beliefs. Note that the law merely requires the health service provider to give complete and correct information. Presumably this can even be done by simply giving the person a handout containing the list of the government's reproductive health programs and services under the RH Law. The valid secular purpose of the duty to inform is readily apparent and the State interest in ensuring complete and correct information is direct and substantial in order that the person may make an informed and free choice.

The law does not command the health service provider to endorse a particular family planning method but merely requires the presentation of complete and correct information so that the person can make an informed choice. A conscientious objector, like a Catholic doctor, is, thus, not compelled to endorse artificial contraceptives as the preferred family planning method. On its face, therefore, there appears to be no burden imposed on the conscientious objector under the duty to inform.

To my mind, to successfully claim that a conscientious objector, like a Catholic doctor, is burdened by the duty to inform, petitioners should have demonstrated that, for a Catholic doctor, the mere mention of artificial contraceptives (what they are and how they work) to the person is immoral under the tenets of the Catholic faith. In the case at bar, petitioners failed to carry this onus. Moreover, after providing the complete and correct information as mandated by the RH Law, there is nothing to prevent the conscientious objector, like a Catholic doctor, from speaking against artificial contraceptives on religious or ethical grounds because the RH Law cannot curtail freedom of speech; the Constitution is deemed written into the law.

For the foregoing reasons, I find that petitioners failed to clearly show that the act of giving complete and correct information on reproductive health programs and services under the RH Law burdens a conscientious objector's religious beliefs. Thus, I find that the duty to inform under Section 23(a)(l) of the RH Law is constitutional even with respect to the conscientious objector. In other words, the conscientious objector has the duty to inform under the aforesaid section.

I now turn to the duty to refer. As already mentioned, I reach an opposite result here. The central reason is that the second phase involves a crucial distinguishing feature from the first phase. In the first phase, the person merely receives the complete and correct information from the health service provider but, in the second case, the person now decides to act on the information. He or she makes a decision to avail of one or more of the government's reproductive health programs and services under the RH Law. In case the person seeks to avail of a program or service which the conscientious objector objects to on religious or ethical grounds, Section 23(a)(3) imposes on the conscientious objector the duty to refer the person to a health service provider who can perform or provide such program and service.

This is an entirely different scenario. The person has already made a decision and now seeks to accomplish an act which the conscientious objector considers immoral or wrong on religious or ethical grounds. When the RH Law compels the conscientious objector to make such a referral, under pain of penal liability, the religious or ethical beliefs of the conscientious objector is clearly burdened because he or she is made to either (1) join in this intention or (2) aid in the accomplishment of this intention which he or she considers immoral or wrong.

To illustrate, a Catholic doctor, who objects to the use of artificial contraceptives, is compelled to refer a person who seeks such services to another health care service provider who will, in turn, perform or provide services related to artificial contraception. In such a case, the Catholic doctor is effectively commanded to either (1) join in the intention of the person to use artificial contraceptives or (2) aid in the accomplishment of this intention. From another perspective, the Catholic doctor may view the referral as an essential link in the chain of events which would lead to the availment of the person of such artificial contraceptives.

Consequently, in the above scenario, I am of the view that the religious or ethical beliefs of the conscientious objector are clearly burdened by the duty to refer, thus, calling for the application of the test enunciated in Estrada v. Escritor,44 to wit:

1. The sincerity and centrality of the religious belief and practice;

2. The State's compelling interest to override the conscientious objector's religious belief and practice; and

3. The means the State adopts in pursuing its interest is the least restrictive to the exercise of religious: freedom.45

Anent the first test, insofar as the Catholic health service provider is concerned vis-a-vis the use of artificial contraceptives, I find that petitioners have met the sincerity and centrality test. The Catholic Church's teaching on the use of artificial contraceptives as immoral, evil or sin is of time immemorial and well documented. Its sincerity and centrality to the Catholic faith cannot be seriously doubted as a papal encyclical, Humanae Vitae, has even been principally devoted to re-stating or expressing the Catholic Church's teaching on artificial contraceptives, to wit:

Faithfulness to God's Design

13. Men rightly observe that a conjugal act imposed on one's partner without regard to his or her condition or personal and reasonable wishes in the matter, is no true act of love, and therefore offends the moral order in its particular application to the intimate relationship of husband and wife. If they further reflect, they must also recognize that an act of mutual love which impairs the capacity to transmit life which God the Creator, through specific laws, has built into it, frustrates His design which constitutes the norm of marriage, and contradicts the will of the Author of life. Hence to use this divine gift while depriving it, even if only partially, of its meaning and purpose, is equally repugnant to the nature of man and of woman, and is consequently in opposition to the plan of God and His holy will. But to experience the gift of married love while respecting the laws of conception is to acknowledge that one is not the master of the sources of life but rather the minister of the design established by the Creator. Just as man does not have unlimited dominion over his body in general, so also, and with more particular reason, he has no such dominion over his specifically sexual faculties, for these are concerned by their very nature with the generation of life, of which God is the source. "Human life is sacred- all men must recognize that fact," Our predecessor Pope John XXIII recalled. "From its very inception it reveals the creating hand of God." (13)

Unlawful Birth Control Methods

14. Therefore We base Our words on the first principles of a human and Christian doctrine of marriage when We are obliged once more to declare that the direct interruption of the generative process already begun and, above all, all direct abortion, even for therapeutic reasons, are to be absolutely excluded as lawful means of regulating the number of children. (14) Equally to be condemned, as the magisterium of the Church has affirmed on many occasions, is direct sterilization, whether of the man or of the woman, whether permanent or temporary. (15)

Similarly excluded is any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation-whether as an end or as a means. (16)

Neither is it valid to argue, as a justification for sexual intercourse which is deliberately contraceptive, that a lesser evil is to be preferred to a greater one, or that such intercourse would merge with procreative acts of past and future to form a single entity, and so be qualified by exactly the same moral goodness as these. Though it is true that sometimes it is lawful to tolerate a lesser moral evil in order to avoid a greater evil or in order to promote a greater good," it is never lawful, even for the gravest reasons, to do evil that good may come of it (18)-in other words, to intend directly something which of its very nature contradicts the moral order, and which must therefore be judged unworthy of man, even though the intention is to protect or promote the welfare of an individual, of a family or of society in general. Consequently, it is a serious error to think that a whole married life of otherwise normal relations can justify sexual intercourse which is deliberately contraceptive and so intrinsically wrong.46

Because petitioners have met the first test, the burden shifts to the government to meet the last two tests in order for the constitutional validity of the duty to refer to pass muster.

Anent the second test, the government failed to establish a compelling State interest to justify the duty to refer under pain of penalty. The purpose of the duty to refer is to facilitate the availment of the government's reproductive health programs and services. That is, it is logically more convenient that, after receiving complete and correct information on the government's reproductive health programs and services from a conscientious objector, the person should be readily referred to another health service provider who can perform or provide the chosen program or service to which the conscientious objector objects to on religious grounds.

The primary State interest, therefore, that the duty to refer serves is the facility of availing such programs and services or, in short, the person's convenience. Put another way, if there were no duty to refer and, thus, the conscientious objector is allowed to say to the person, "Sorry, I do not know of and/or cannot refer you to such a health service provider because I would be helping you to accomplish something that I consider immoral or wrong," then, at most, the person suffers the inconvenience of having to look for the proper health service provider, on his or her own, who can provide or perform the chosen program or service. Plainly, the person's convenience cannot override the conscientious objector's religious freedom; a right founded on respect for the inviolability of the human conscience.47

Anent the third test, which is intimately related to the second test, there are clearly other means to achieve the purpose of the duty to refer. Upon the implementation of the RH Law, through Sections 5.22,48 5.23,49 and 5.2450 of the IRR, the government will already be able to identify both conscientious objectors and non-conscientious objectors. It can, therefore, map out an effective strategy to inform all potential patients or target beneficiaries where they can avail of the complete reproductive health programs and services under the RH Law (which refer simply to the identity and location of all non-conscientious objector health service providers). This is well-within the State's administrative and logistical capability given its enormous machinery and the mandate of Section 20 of the RH Law, which provides that:

"SEC. 20. Public Awareness. - The DOH and the LGUs shall initiate and sustain a heightened nationwide multimedia-campaign to raise the level of public awareness on the protection and promotion of reproductive health and rights including, but not limited to, maternal health and nutrition, family planning and responsible parenthood information and services, adolescent and youth reproductive health, guidance and counseling and other elements of reproductive health care under Section 4(q).

Education and information materials to be developed and disseminated for this purpose shall be reviewed regularly to ensure their effectiveness and relevance."

The information, then, as to which health service provider is not a conscientious objector can easily be disseminated through the information campaign of the government without having to burden the conscientious objector with the duty to refer.

Based on the foregoing, the duty to refer fails to meet the criteria set in Estrada v. Escritor.51 Thus, it is unconstitutional.

Before closing the discussion on the duty to inform and the duty to refer, I wish to highlight the preferred status that religious freedom occupies in the hierarchy of constitutional rights by way of analogy. Let us assume that the State promulgates a law which subsidizes the purchase of weapons due to rising criminality. The law requires store owners, in the business of selling such weapons, to fully inform their buyers of the available weapons subsidized by the government. A store owner is, thus, required to inform a buyer that the following are the government subsidized weapons: knives and guns. The store owner would have no problem acceding to this duty to inform. But suppose, one day, a buyer comes to his store and says that he wants to buy a gun in order to kill or murder his neighbor. The store owner, assuming he acts in accordance with his conscience, would ordinarily refuse to sell the gun. If the law, however, requires the store owner to refer the buyer to another store where the buyer can avail of this gun, despite the latter's motive for buying the gun, would this not impose a burden on the conscience of the store owner?

To a non-believer, the matter of the duty to refer relative to, say, artificial contraceptives may seem too inconsequential to merit constitutional protection. But the Court cannot judge the truth or falsity of a religious belief nor the seriousness of the consequences that its violation brings upon the conscience of the believer. For to the believer, referring a person to a health service provider where the latter can avail of artificial contraceptives may be of the same or similar level as referring a person to a store owner where he can purchase a gun to kill or murder his neighbor. It constitutes a breach of his or her covenant relationship with his or her God, and, thus, affects his or her eternal destiny. That, precisely, is the province of the Free Exercise of Religion Clause. That the believer may not have to choose between his or her earthly freedom (imprisonment) and his or her eternal destination.

In view of the foregoing, I find that the duty to refer imposed on the conscientious objector under Sections 7 and 23(a)(3) of the RH Law is unconstitutional for violating the Free Exercise of Religion Clause. Consequently, the phrase, "Provided, further, That these hospitals shall immediately refer the person seeking such care and services to another health facility which is conveniently accessible," in Section 7 and the phrase, "however, the conscientious objector shall immediately refer the person seeking such care and services to another health care service provider within the same facility or one which is conveniently accessible," in Section 23(a)(3) of the RH Law should be declared void. Consequently, Sections 5.24(b) to (e) and 5.25 of the IRR, which implements the aforesaid provisions of the RH Law, are void.

In another vein, I agree with the ponencia that the last paragraph of Section 5.24 of the IRR is ultra vires because it effectively amends Section 4(n) in relation to Section 23(a)(3) of the RH Law.

Under Section 4(n) of the RH Law, a public health care service provider is defined as follows:

SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:

(n) Public health care service provider refers to: (1) public health care institution, which is duly licensed and accredited and devoted primarily to the maintenance and operation of facilities for health promotion, disease prevention, diagnosis, treatment and care of individuals suffering from illness, disease, injury, disability or deformity, or in need of obstetrical or other medical and nursing care; (2) public health care professional, who is a doctor of medicine, a nurse or a midwife; (3) public health worker engaged in the delivery of health care services; or (4) barangay health worker who has undergone training programs under any accredited government and NGO and who voluntarily renders primarily health care services in the community after having been accredited to function as such by the local health board in accordance with the guidelines promulgated by the Department of Health (DOH).

While last paragraph of Section 5.24 of the IRR states:

Provided, That skilled health professionals such as provincial, city, or municipal health officers, chiefs of hospital, head nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the duty to implement the provisions of the RPRH Act and these Rules, cannot be considered as conscientious objectors. (Emphasis supplied)

The above-enumerated skilled health professionals fall within the definition of a "public health care service provider" under Section 4(n) of the RH Law. Under Section 23(a)(3) of the RH Law, both public and private health service providers may invoke the right of a conscientious objector. The last paragraph of Section 5.24 of the IRR is, thus, void insofar as it deprives the skilled health professionals enumerated therein from the right to conscientious objection.

I also agree with the ponencia that the last paragraph of Section 5.24 of the IRR is unconstitutional for being violative of the Equal Protection Clause although I find that the proper standard of review is the strict scrutiny test.

The IRR effectively creates two classes with differential treatment with respect to the capacity to invoke the right of a conscientious objector: (1) skilled health professionals such as provincial, city, or municipal health officers, chiefs of hospital, head nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the duty to implement the provisions of the RH Law and its IRR, and (2) skilled health professionals not belonging to (1). Those belonging to the first class cannot invoke the right of a conscientious objector while those in the second class are granted that right.

In our jurisdiction, equal protection analysis has generally followed the rational basis test coupled with a deferential attitude to legislative classifications and a reluctance to invalidate a law absent a clear and unequivocal showing of a breach of the Constitution.52 However, when the classification burdens a suspect class or impinges on fundamental rights, the proper standard of review is the strict scrutiny test.53

Under the strict scrutiny test, the government must show a compelling or overriding end to justify either: (1) the limitation on fundamental rights or (2) the implication of suspect classes.54 The classification will only be upheld if it is shown to be suitably tailored to serve a compelling State interest.55 Suspect classes include classifications based on race, nationality, alienage or denominational preference while classifications impinging on fundamental rights include those affecting marriage, procreation, voting, speech and interstate travel.56

Here, the classification impinges on the fundamental right of free exercise of religion, as operationalized through the right of a conscientious objector, which the RH Law recognizes and respects. The government must, therefore, show that the differential treatment between the first class and second class of skilled health professionals serves a compelling State interest.

I find that the State has failed to prove how curtailing the right of conscientious objection of those belonging to the first class will further a compelling State interest. One perceptible reason for depriving the right of conscientious objection to those belonging to the first class appears to be the fear that this will paralyze or substantially degrade the effective implementation of the RH Law considering that these skilled health professionals are employed in public health institutions and local government units.

This fear rests on at least two assumptions: (1) most, if not all, skilled health professionals belonging to the first class are conscientious objectors, and (2) the State is incapable of securing the services of an adequate number of skilled health professionals who are not conscientious objectors. Both assumptions have not been proven by the State. And, even if it were so proven, it must be recalled that the right of the conscientious objector is a limited one: he or she may refuse to perform or provide reproductive health services to which he or she objects to on religious grounds. In such a case, the solution is for the person to avail of such services elsewhere. Consequently, the State would now have to show that the inconvenience caused on the part of the person, who must secure such services elsewhere (which could be as near as the doctor in the next room or as far-flung as the doctor in another province or region) overrides the freedom of religion of conscientious objectors belonging to the first class. As earlier noted it is self-evident that the person's convenience cannot override the freedom of religion of the conscientious objector; a constitutionally protected right predicated on respect for the inviolability of the human conscience. (Even if this inconvenience would entail, for example, added transportation costs, it cannot be seriously argued that one can place a monetary value on the inviolability of the human conscience.)

Hence, I find that the last paragraph of Section 5 .24 of the IRR is unconstitutional on equal protection grounds.

3.c- Family Planning Seminars

I agree with the ponencia that Section 15 of the RH Law mandating a family planning seminar as a condition for the issuance of a marriage license is constitutional for reasons stated in the ponencia.

4- The Family Planning And The Right To Privacy

4.a. Decision-making by the spouses

I agree with the ponencia that Section 23(a)(2)(i) of the RH Law is unconstitutional but for different reasons.

The ponencia ruled that the aforesaid provision contravenes Article XV, Section 3 of the Constitution and the constitutional right to privacy of the spouses relative to the decision-making process on whether one spouse should undergo a reproductive health procedure like tubal ligation and vasectomy. According to the ponencia, the decision-making process on reproductive health procedures must involve both spouses, that is, the decision belongs exclusively to both spouses, in consonance with the right of the spouses to found a family. Otherwise, this will destroy family unity. Further, this process involves a private matter that the State cannot intrude into without violating the constitutional right to marital privacy. The spouses must, thus, be left alone to chart their own destiny.

Section 23(a)(2)(i) of the RH Law provides that:

"SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

x x x x

(2) Refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the ground of lack of consent or authorization of the following persons in the following instances:

(i) Spousal consent in case of married persons: Provided, That in case of disagreement, the decision of the one undergoing the procedure shall prevail; x x x (Emphasis supplied)

This provision contemplates a situation where the spouses are unable to agree if one of them should undergo a reproductive health procedure like tubal ligation or vasectomy. It does not dispense with consulting the other spouse but provides a mechanism to settle the disagreement, if one should arise.

Indeed, the decision-making process in this area is a delicate and private matter intimately related to the founding of a family. The matter should, thus, be decided by both spouses under the assumption that they will amicably settle their differences and forthwith act in the best interest of the marriage and family. But, as in all relations between and among individuals, irreconcilable disagreements may arise. The law, therefore, steps in to break the impasse.

The law, however, settles the dispute by giving the spouse, who will undergo the procedure, the absolute and final authority to decide the matter. The rationale seems to be that the spouse, who will undergo the procedure, should ultimately make the decision since it involves his or her body.

Like the ponencia, I am of the view that this provision in the RH Law clearly violates Article II, Section 12 in relation to Article XV, Sections 1 and 3(1) of the Constitution, which are quoted hereunder:

Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. x x x

x x x x

Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. x x x

x x x x

Section 3. The State shall defend:

(1) The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood; x x x

Taken together, these constitutional provisions are intended to, among others, prohibit the State from adopting measures which impair the solidarity of the Filipino family.57 In particular, Section 3(1) explicitly guarantees the right of the spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood. This necessarily refers to, among others, the number of children that the spouses will bring into this world.

The provision speaks of this right as properly belonging to both spouses. The right is, thus, conferred on both of them and they are to exercise this right jointly. Implicit in this provision is that the spouses equally possess this right particularly when read in light of Article II, Section 1458 of the Constitution which enjoins the State to ensure the fundamental equality before the law of women and men.

Thus, the spouse, who will undergo the reproductive health procedure, cannot be given the absolute and final authority to decide this matter because it will destroy the solidarity of the family, in general, and do violence to the equal right of each spouse to found the family in accordance with their religious convictions and the demands of responsible parenthood, in particular.

My disagreement with the ruling of the ponencia, however, is that it falls on the other extreme. When the ponencia states that the aforesaid decision-making process must be settled through the spouses' mutual consent and that the State cannot intrude in such process because of the right to marital privacy, the implicit result is that the other spouse, who refuses to give his or her consent, is given the absolute and final authority to decide this matter. In other words, the result reached by the ponencia is merely the opposite of that under the RH Law. That is, the non-consenting spouse is effectively given the absolute and final authority in the decision-making process.

I find this result equally repugnant to the afore-discussed constitutional provisions.

To my mind, the State can intervene in marital rights and obligations when there are genuine and serious disagreements between the spouses. This is a basic postulate of our Constitution relative to marriage and family relations as well as our existing family laws and rules of procedure. The constitutional right to privacy does not apply in this situation because the conflict of rights and obligations is between one spouse and the other, and does not involve a dispute between the State and the spouses.

This view is consistent with the provisions of the Family Code on dispute resolution between spouses which preserves and adheres to the constitutional precept on the solidarity of the family and the right, belonging to both spouses, to found the family. State intervention, which provides the solution to the problem, involves calling upon the courts to ultimately settle the dispute in case of disagreement between the spouses. To illustrate, the Family Code explicitly provides how disagreements shall be settled in various marital and family relations' controversies, to wit:

ARTICLE 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide.

The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family.

x x x x

ARTICLE 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds.

In case of disagreement, the court shall decide whether or not:

(1) The objection is proper, and

(2) Benefit has accrued to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent.

The foregoing provisions shall not prejudice the rights of creditors who acted in good faith.

x x x x

ARTICLE 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. x x x

xx xx

ARTICLE 211. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary.

x x x x

ARTICLE 225 . The father and the mother shall jointly exercise legal guardianship over the property of their unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary. (Emphasis supplied)

While there appears to be no law prior to the RH Law specifically dealing with the decision-making process on undergoing reproductive health procedures by one spouse, there is no obstacle to the application of the above principle (i.e., "in case of disagreement, the court will decide") because such decision-making process is properly subsumed in the mass of marital rights and obligations, and the general principles governing them, provided in our Constitution and family laws and is, therefore, within the ambit of the judicial power of courts to settle actual controversies involving rights which are legally demandable and enforceable.59 The principle of "in case of disagreement, the court will decide" properly governs how conflicts involving marital rights and obligations shall be resolved, without giving to one spouse the absolute and final authority to resolve the conflict, and, thus, preserving the equal right of the spouses to found the family and maintaining the solidarity of the family in consonance with the Constitution.

Of course, unlike most of the above-quoted Family Code provisions, neither the husband nor wife's decision in this particular situation can, in the meantime, prevail considering that the effects of the reproductive health procedures may be permanent or irreversible. Thus, the decision-making process on undergoing reproductive health procedures by one spouse requires the consent of both spouses but, in case of disagreement, the courts will decide.

The key principle is that no spouse has the absolute and final authority to decide this matter because it will run counter to the constitutional edict protecting the solidarity of the family and equally conferring the right to found the family on both spouses. Consequently, while I agree that Section 23(a)(2)(i) of the RH Law is unconstitutional, the declaration of unconstitutionality should not be construed as giving the non-consenting spouse the absolute and final authority in the decision-making process relative to undergoing a reproductive health procedure by one spouse. The proper state of the law and rules of procedure on the matter is that the decision shall require the consent of both spouses, and, in case of disagreement, the matter shall be brought before the courts for its just adjudication.

4.b. - The need of parental consent

I agree with the ponencia that the phrase, "except when the minor is already a parent or has had a miscarriage," in Section 7 of the RH Law is unconstitutional but for different reasons. This provision states, in part, that:

SEC. 7. Access to Family Planning. – x x x

No person shall be denied information and access to family planning services, whether natural or artificial: Provided, That minors will not be allowed access to modem methods of family planning without written consent from their parents or guardian/s except when the minor is already a parent or has had a miscarriage. (Emphasis supplied)

Article II, Section 12 of the Constitution states, in part:

Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. x x x

The description of the family as a "basic" social institution is "an assertion that the family is anterior to the state and is not a creature of the state"60 while the reference to the family as "autonomous" is "meant to protect the family against the instrurnentalization by the state."61

This provision is, thus, a guarantee against unwarranted State intrusion on matters dealing with family life.

The subject of parental authority and responsibility is specifically dealt with in the last sentence of the above constitutional provision which reads:

The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.

As a natural right, parental authority is recognized as an inherent right, not created by the State or decisions of the courts, but derives from the nature of the parental relationship.62 More important, as pertinent in this controversy, the present Constitution refers to such right as "primary" which "imports the assertion that the right of parents is superior to that of the state."63

Title IX of the Family Code is the principal governing law on parental authority. Chapter 3, Section 220 thereof provides:

Chapter 3. Effect of Parental Authority Upon the Persons of Children

ARTICLE 220. The parents and those exercising parental authority shall have with respect to their unemancipated children or wards the following rights and duties:

(1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means;

(2) To give them love and affection, advice and counsel, companionship and understanding;

(3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship;

(4) To enhance, protect, preserve and maintain their physical and mental health at all times;

(5) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals;

(6) To represent them in all matters affecting their interests;

(7) To demand from them respect and obedience;

(8) To impose discipline on them as may be required under the circumstances; and

(9) To perform such other duties as are imposed by law upon parents and guardians.

As can be seen from the foregoing, the constitutional and statutory recognition of parental authority (for as afore-stated such authority precedes the State and laws) is broad and indivisible, full and complete in all matters relating to the rearing and care of minors in order to promote their welfare and best interest. Further, the deprivation or loss of parental authority, which is governed by the judicial process, arises only in exceptional cases when the best interest of the minor so requires. There is, therefore, an inherent public policy recognizing the necessity of keeping parental authority intact and shielding it from undue State intrusion or interference.

Viewed in this light, Section 7 of the RH Law is a radical departure from the afore-discussed public policy as embodied in our Constitution and family laws. The decision on access to modem methods of family planning by minors evidently falls within the ambit of parental authority, in general, and Article 220 of the Family Code, in particular, which recognizes the parents' right and duty to provide advice and counsel, moral and spiritual guidance, as well as to protect, preserve and maintain the minor's physical and mental health. It cannot be doubted that the use of modem methods of family planning by a minor will greatly impact his or her physical, mental, moral, social and spiritual life. And yet Section 7 would exempt such a decision by a minor, who is already a parent or has had a miscarriage, from parental authority by allowing access to modem methods of family planning without parental consent.

I find that this proviso in the RH Law is unconstitutional in view of the nature and scope of parental authority.

Because parental authority is a constitutionally recognized natural and primary right of the parents, with emphasis on "primary" as giving parents a superior right over the State, the State cannot carve out an exception to such authority without showing or providing a sufficiently compelling State interest to do so. A limited but blanket exception from parental authority, such as that found in Section 7 of the RH Law, will undoubtedly destroy the solidarity of the family as well as foster disrespect and disobedience on the part of the minor. It disrupts the natural state of parent-child relationship and is wholly inconsistent with the pUtpose and essence of parental authority granting the parents the natural and primary right in all matters relating to the rearing and care of the minor in order to safeguard his or her well-being.

In the case at bar, the State failed to prove such sufficiently compelling State interest. The rationale of Section 7 seems to be that a minor, who is already a parent or has had a miscarriage, by reason of such fact alone, automatically and definitively attains a level of maturity that demands that he or she no longer be placed under the parental authority of his or her parents relative to decisions involving access to modem methods of family planning. However, there is no basis to reach this conclusion. The State has provided none. And the opposite is probably more true; in that the early parenthood or miscarriage of the minor is a sign of immaturity which, therefore, necessitates greater parental guidance, supervision and support for the minor, including decisions relative to access to modem methods of family planning. This is especially true in the case of the minor who faces the early prospect of raising a child or children.

Further, if the pUtpose of Section 7 of the RH Law is to uphold the interest of the minor, who is already a parent or has had a miscarriage, from his or her parents who unjustifiably withholds consent for him or her to have access to modem methods of family planning, there are less intrusive means to achieve this pUtpose considering that a judicial remedy, where the courts can look into the particular circumstances of a case and decide thereon based on the best interest of the minor, may be availed of by the minor.

The State has, therefore, not only failed to prove a sufficiently compelling State interest to carve out an exception to the constitutionally recognized parental authority of parents but also failed to prove that the apparent goal of this provision cannot be attained by less intrusive means. Hence, Section 7 of the RH Law, particularly the phrase, "except when the minor is already a parent or has had a miscarriage," is unconstitutional for violating the natural and primary right of parents in rearing their minor children as recognized under Article II, Section 12 of the Constitution.

Additionally, the distinction based on the predicament of the minor, as already being a parent or has had a miscarriage, vis-a-vis the requirement of parental consent on matters relating to access to modem methods of family planning is unconstitutional on equal protection grounds. A parallel standard of review leads to the same end result.

The proviso in Section 7 of the RH Law effectively creates two groups with varying treatments: (1) minors who are already parents or have had a miscarriage, and (2) minors who are not parents or have not had a miscarriage. The first group is exempt from parental consent while the second is not.

For convenience, I reproduce below the baseline principles on equal protection analysis which I utilized in a previous section:

In our jurisdiction, equal protection analysis has generally followed the rational basis test coupled with a deferential attitude to legislative classifications and a reluctance to invalidate a law absent a clear and unequivocal showing of a breach of the Constitution. However, when the classification burdens a suspect class or impinges on fundamental rights, the proper standard of review is the strict scrutiny test.

Under the strict scrutiny test, the government must show a compelling or overriding end to justify (1) the limitation on fundamental rights or (2) the implication of suspect classes. The classification will only be upheld if it is shown to be suitably tailored to serve a compelling State interest. Suspect classes include classifications based on race or nationality while classifications impinging on fundamental rights include those affecting marriage, procreation, voting, speech and interstate travel.

As stated earlier, the fundamental right involving the parental authority of parents over their minor children is unduly limited by the proviso in Section 7 of the RH Law, thus, calling for the application of the strict scrutiny test. The government must show that a compelling State interest justifies the curtailment of parental authority of parents whose minor children belong to the first group (i.e., minors who are already parents or have had a miscarriage) vis-a-vis parents whose minor children belong to the second group (i.e., minors who are not parents or have not had a miscarriage). However, for reasons already discussed as to the maturity level of such group of minors and the apparent purpose of the subject legal provision, the government has failed to show such compelling State interest. Hence, the phrase "except when the minor is already a parent or has had a miscarriage" in Section 7 of the RH Law is, likewise, unconstitutional on equal protection grounds.

4.c- Access to information

I agree with the ponencia that there is nothing unconstitutional about the capacity of a minor to access information on family planning services under Section 7 of the RH Law for the reasons stated in the ponencia. In addition, for practical reasons, the State or parents of the minor cannot prevent or restrict access to such information considering that they will be readily available on various platforms of media, if they are not already available at present. It is only when the minor decides to act on the information by seeking access to the family planning services themselves that parental authority cannot be dispensed with (as discussed in a previous section).

5- Age-And Development-Appropritate Reproductive Health Education

I agree with the ponencia that the constitutional challenge against Section 1464 of the RH Law is unavailing insofar as it is claimed to violate Article II, Section 12 of the Constitution on the natural and primary right and duty of parents to rear their children. Indeed, the State has a substantial interest in the education of the youth. Pursuant to its police power, the State may regulate the content of the matters taught to adolescents particularly with respect to reproductive health education in order to, among others, propagate proper attitudes and behavior relative to human sexuality and sexual relations as well as properly prepare the young for marriage and family life. The topics to be covered by the curriculum include values formation; knowledge and skills in self-protection against discrimination; sexual abuse and violence against women and children and other forms of gender based violence and teen pregnancy; physical, social and emotional changes in adolescents; women's rights and children's rights; responsible teenage behavior; gender and development; and responsible parenthood. The curriculum is, thus, intended to achieve valid secular objectives. As the ponencia aptly noted, the RH Law seeks to supplement, not supplant, the natural and primary right and duty of parents to rear their children.

Further, the constitutional challenge against Section 14 relative to the Free Exercise of Religion Clause is premature because, as noted by the ponencia, the Department of Education, Culture and Sports (DECS) has yet to formulate the curriculum on age- and development-appropriate reproductive health education. A Free Exercise of Religion Clause challenge would necessarily require the challenger to state what specific religious belief of his or hers is burdened by the subject curriculum as well as the specific content of the curriculum he or she objects to on religious grounds. Moreover, the proper party to mount such a challenge would be the student and/or his or her parents upon learning of the specific content of the curriculum and upon deciding what aspects of their religious beliefs are burdened. It would be inappropriate for the Court to speculate on these aspects of a potential Free Exercise of Religion Clause litigation involving a curriculum that has yet to be formulated by the DECS.

As to the equal protection challenge against Section 14, I agree with the ponencia that there are substantial distinctions between public and private educational institutions which justify the optional teaching of reproductive health education in private educational institutions. (By giving private educational institutions the option to adopt the curriculum to be formulated by the DECS, the RH Law effectively makes the teaching of reproductive health education in private educational institutions optional because the aforesaid institutions may completely discard such curriculum).

However, I disagree that the academic freedom of private educational institutions should be a basis of such justification. Article XIV, Section 5(2) of the Constitution provides that, "[a]cademic freedom shall be enjoyed in all institutions of higher learning." Thus, only institutions of higher learning enjoy academic freedom. Considering that the students who will be subjected to reproductive health education are adolescents or "young people between the ages often (10) to nineteen (19) years who are in transition from childhood to adulthood,"65 then this would presumably be taught in elementary and high schools which are not covered by academic freedom.

Nonetheless, I agree with the ponencia that, by effectively decreeing optional teaching of reproductive health education in private educational institutions, the RH Law seeks to respect the religious belief system of the aforesaid institutions. I find this to be a reasonable basis for the differential treatment between public and private educational institutions.

As previously discussed, the general approach in resolving equal protection challenges in our jurisdiction is to utilize the rational basis test. Here, the classification between public and private educational institutions neither contains a suspect classification nor impinges on a fundamental right, thus, the rational basis test is apropos.66 In British American Tobacco v. Sec. Camacho,67 we explained that –

Under this test, a legislative classification, to survive an equal protection challenge, must be shown to rationally further a legitimate state interest. The classifications must be reasonable and rest upon some ground of difference having a fair and substantial relation to the object of the legislation. Since every law has in its favor the preswnption of constitutionality, the burden of proof is on the one attacking the constitutionality of the law to prove beyond reasonable doubt that the legislative classification is without rational basis. The presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes, and that there is no conceivable basis which might support it.68

Noticeably, the RH Law is replete with provisions respecting the religious freedoms of individuals. In fact, one of its central and guiding principles is free and informed choice, thus, negating the imposition of any family planning method on an individual who objects on religious grounds. The same principle appears to have been carried over relative to the teaching of reproductive health education in private educational institutions. Congress may have legitimately concluded that the State interests in societal peace, tolerance or benevolent-neutrality accommodation, as the case may be, vis-a-vis the various religious belief systems of private educational institutions in our nation will be better served by making the teaching of reproductive health education (which may touch on or impact delicate or sensitive religious beliefs) as merely optional in such institutions. We can take judicial notice of the fact that majority of the private educational institutions in our nation were established and are run by religious groups or sects.

The classification in Section 14 of the RH Law, thus, rests on substantial distinctions and rationally furthers a legitimate State interest. It seeks to further no less than the constitutional principle on the separation of State and Church as well as the Free Exercise of Religion Clause. In fine, it is not for this Court to look into the wisdom of this legislative classification but only to determine its rational basis. For the foregoing reasons, I find that the differential treatment between public and private educational institutions in the law passes the rational basis test and is, thus, constitutional insofar as the equal protection challenge is concerned.

6- Due Process and Free Speech Clause

I agree with the ponencia that the void for vagueness doctrine is inapplicable to the challenged portions of the RH Law for reasons stated in the ponencia.

However, I find it necessary to discuss in greater detail why the void for vagueness doctrine is not applicable particularly with respect to the duty to inform under Section 23(a)(l) of the RH Law. The reason is that the void for vagueness challenge is inextricably related to freedom of speech which, under the exceptional circumstances of this case, once again requires the Court to take steps to protect this constitutional right pursuant to its expanded jurisdiction and as a penumbra to its power to issue rules for the protection and enforcement of constitutional rights.

As previously discussed, Section 23(a)(l) of the RH Law imposes a duty to inform on both public and private health care service providers:

SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(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;

In effect, the law requires that complete and correct information on the government's reproductive health programs and services, including the right to informed choice and access to a full range of legal, medically-safe, non-abortifacient and effective family planning methods, be given to all persons who are qualified beneficiaries under the RH Law. The law and its IRR however, does not define the nature and extent of "complete and correct information." Petitioners claim that, without this definition, the duty to inform should be nullified under the void for vagueness doctrine.

I disagree.

The RH Law enjoys the presumption of constitutionality and should be given a construction which will avoid its nullity. The phrase "[k]nowingly withhold information or restrict the dissemination thereof, and/or intentionally provide incorrect information regarding programs and services" under Section 23(a)(l) of the RH Law should be reasonably and narrowly construed as merely requiring the health care service provider to provide and explain to persons the list of the government's reproductive health programs and services under the RH Law. To illustrate, ifthe government's reproductive health programs and services under the RH Law consists of A, B, C and D, then a health care service provider is required to transmit this information to a person qualified to avail of the benefits under the law.

But it is not as simple as that

The RH Law itself provides that the individual should be allowed to make a free and informed choice. As a result, the government has set a self-limiting policy that it will not endorse any particular family planning method. Yet, invariably, potential beneficiaries of these programs and services will seek the advice or counsel of health care service providers as to which programs and services they should avail of.

When this occurs, can the government control the opinions that health care service providers will give the potential beneficiaries by limiting the content of such opinions? That is, can the government prevent health care service providers from giving their opinions or controlling the content of their opinions, in favor or against, a particular reproductive health service or program by mandating that only a particular opinion will comply with the "complete and correct information" standard under Section 23(a)(l) of the RH Law?

I submit that the government cannot do so without violating the Free Speech Clause.

The "complete and correct information" standard cannot be construed as covering matters regarding the professional opinions (including the opinions of a conscientious objector on religious or ethical grounds as previously discussed) of health service providers, either for or against, these programs and services because this would constitute an abridgement of freedom of speech through subsequent punishment. The government cannot curtail such opinions without showing a clear and present danger that will bring about the substantive evils that Congress has a right to prevent.69 In the case at bar, there is no attempt on the part of the government to satisfy the clear and present danger test. Consequently, the "complete and correct information" standard under Section 23(a)(l) should be narrowly construed in order not to violate the Free Speech Clause. As earlier noted, the only way to save it from constitutional infirmity is to construe the "complete and correct information" standard as referring to information containing the list of the government's reproductive health programs and services under the RH Law. Anything beyond that would transgress the free speech guarantee of the Constitution.

Indubitably, an expansive and broad intetpretation of the "complete and correct information" standard will give the government the unbridled capacity to censor speech by only allowing opinions on the reproductive health programs and services under the RH Law which it favors. The government can use the "complete and correct information" standard to force health care service providers to endorse the former's preferred family planning method despite the clear policy of the RH Law granting free and informed choice to the individual. This cannot be done without violating the Free Speech Clause.

Of course, this would mean that health care service providers, who are for or against certain programs and services under the RH Law, will be able to influence potential beneficiaries over which family planning method or means to avail of. This is the price of living in a democratic polity, under our constitutional order, where opinions are freely expressed and exchanged. The Constitution guarantees freedom of speech and, thus, tilts the balance in favor of the individual's right to free speech unless the State can show that controlling the individual's speech can pass the clear and present danger test. Here, as afore-stated, the government has failed to satisfy this test. If the government desires to push a preferred family planning method, it has the full machinery of the State to back up its information campaign under Section 20 of the RH Law. However, it cannot force individual health care service providers, under pain of penal liability, to express opinions that are favorable to certain reproductive health programs and services under the RH Law. Government may try to convince health care service providers, but not force them.1âwphi1

The above disquisition should not, of course, be taken to mean that health care service providers shall be exempt from their professional or ethical responsibilities which they owe to their patients and which may result to administrative, civil or criminal liabilities of the former based on their code of ethical conduct not unlike the code of ethics for lawyers. But, unavoidably, the professional opinion or advice of health care service providers will be sought by potential beneficiaries under the RH Law and, in that instance, the "complete and correct information" standard cannot be utilized by the State to curtail the health care service provider's freedom of speech.

Thus, I find that the "complete and correct information" standard under Section 23(a)(l) of the RH Law and, hence, the duty to inform (as discussed in a previous subsection) is constitutional only insofar as it requires health care service providers to provide a list of the government's reproductive health programs and services under the RH Law to qualified beneficiaries. Further, given the afore-discussed peculiar circumstances of this case and in order to adequately protect the right to free speech of health care service providers, it is necessary for the Court to issue an order directing the DOH to generate the complete and correct list of the government's reproductive health programs and services under the RH Law which will serve as the template for the "complete and correct information " standard and, hence, the duty to inform under Section 23(a)(I) of the RH Law. The DOH should be directed to distribute this template to all health care service providers covered by the RH Law. This will forestall any confusion on the nature and scope of the "complete and correct information" standard which is necessary given the penal clause under the duty to inform.

7- Equal Protection

I agree with the ponencia that the RH Law does not violate the equal protection clause insofar as it is claimed to single out the poor to reduce their numbers and that the poor may be the subject of government subsidy for the programs under the RH Law for reasons stated in ponencia.

8. Section 7 (Involuntary Service)

I am fully in accord with the ruling of the ponencia that Section 17 of the RH Law does not violate the constitutional prohibition against involuntary servitude and that it is unconstitutional insofar as it imposes a duty to conscientious objectors to render pro bona reproductive health care services to which the conscientious objector objects to on religious or ethical grounds for reasons stated in the ponencia. Corrorarily, the conscientious objector can be required to render pro bona reproductive health care services for as long as it involves services that he or she does not object to on religious or ethical grounds.

9. Delegation of Authority To The FDA

I am fully in accord with the ruling of the ponencia that Congress can validly delegate to the FDA the authority or power to determine whether the drugs, devices, methods or services to be used under the RH Law comply with constitutional and statutory standards for reasons stated in the ponencia.

10. Autonomy Of The Local Government Units (LGUs)
And The Autonomous Region of Muslim Mindanao (ARMM)

I concur with the ponencia that the RH Law does not violate the local autonomy ofLGUs and the ARM1v1 guaranteed under Article II, Section 2570 and Article X, Section 271 of the Constitution.

I have reservations, however, with regard to the following statements in the ponencia:

In this case, a reading of the RH Law clearly shows that whether it pertains to the establishment of health care facilities, the hiring of skilled health professionals, or the training of barangay health workers, it would be the national government that would provide for the funding of its implementation. Local autonomy is not absolute. The national government still has the say when it comes to national priority programs which the local government is called upon to implement like the RH Law.

Moreover, from the use of the word "endeavour", the local government units are merely encouraged to provide these services. There is nothing in the wording of the law which can be construed as making the availability of these services mandatory for the local government units. For said reason, it cannot be said that the RH Law amounts to an undue encroachment by the national government upon the autonomy enjoyed by the local governments.72

First, under Sections 5,73 1074 and 1375 of the RH Law, the LGUs are not prevented from using their own funds to provide the specified services therein. The law appears to encourage LGUs to spend for these specified services on the assumption that the LGUs will see for themselves that these services are beneficial to them and, thus, warrant their own expenditure therefor.

Second, the use of the phrase "shall endeavor" appears only in Sections 5 and 6 of the RH Law. Sections 8,76 1377 (last sentence) and 1678 use the word "shall" relative to the duties required of the LGUs therein. Thus, the duties of the LGUs under these sections are mandatory.

Third, the ponencia's construction of the word "endeavor" under Sections 5 and 6 of the RH Law might give the wrong impression that the LGUs are not mandated to cooperate with the national government in the implementation of the programs set under these sections. However, the framework of action of the RH Law is based, among others, on the effective partnership between the national government and LGUs.79

In fact, the LGUs are effectively designated as implementing agencies of certain aspects of the programs under the RH Law.

In line with this policy, a more reasonable interpretation of the phrase "shall endeavor" under Sections 5 and 6 is to read it in conjunction with the proviso (which is identical for both sections) stating that, "Provided, further, That the national government shall provide additional and necessary funding and other necessary assistance for the effective implementation of this provision." Thus, the use of the phrase "shall endeavor" should be understood as a recognition by Congress of the realities on the ground where the LGUs may not have enough funds to fulfill their mandate under these sections. However, if the national government provides for the needed funds, the LGUs cannot refuse to cooperate and do its part in the implementation of these sections. In other words, under these sections, the law mandates, not merely encourages, LGUs to fulfill their duties unless prevented from doing so for justifiable reasons such as the lack of available funds.

11. Natural Law

I agree with the ponencia that natural law may not, under the particular circumstances of this case, be used to invalidate the RH Law. However, I disagree with the following statements:

While every law enacted by man emananted from what is perceived as natural law, the Court is not obliged to see if a statute, executive issuance or ordinance is in conformity to it. To begin with, it is not enacted by an acceptable legitimate body. Moreover, natural laws are mere thoughts and notions on inherent rights espoused by theorists, philosophers and theologists. The jurists of the philosophical school are interested in the law as an abstraction, rather than in the actual law of the past or present.80

These statements, I submit, are not necessary in the disposition of this case and appear to be an inaccurate description of natural law. The Court need not foreclose the usefulness of natural law in resolving future cases. I submit that the statement that natural law is not applicable in the resolution of this particular case suffices.

ACCORDINGLY, I vote to PARTIALLY GRANT the petitions.

1. The word "primarily" in Sections 3.01(a) and 3.01(J) of the Implementing Rules and Regulations is VOID for contravening Section 4(a) of Republic Act No. 10354 and Article II, Section 12 of Constitution.

2. The phrase, "Provided, further, That these hospitals shall immediately refer the person seeking such care and services to another health facility which is conveniently accessible," in Section 7 and the phrase, "however, the conscientious objector shall immediately refer the person seeking such care and services to another health care service provider within the same facility or one which is conveniently accessible," in Section 23(a)(3) of Republic Act No. 10354 are UNCONSTITUTIONAL for violating the Free Exercise of Religion Clause under Article III, Section 5 of the Constitution. Consequently, Sections 5.24(b) to (e) and 5.25 of the Implementing Rules and Regulations, insofar as they implement the aforesaid provisions, are VOID.

3. The last paragraph of Section 5 .24 of the Implementing Rules and Regulations is VOID insofar as it deprives the skilled health professionals enumerated therein of the right to conscientious objection for violating Section 4(n) in relation to Section 23(a)(3) of Republic Act No. 10354 and Equal Protection Clause under Article III, Section 1 of the Constitution.

4. Section 23(a)(2)(i) of Republic Act No. 10354 is UNCONSTITUTIONAL for violating the constitutional right of both spouses to found a family under Article XV, Section 3(1) of the Constitution.

5. The phrase "except when the minor is already a parent or has had a miscarriage" in Section 7 of Republic Act No. 10354 is UNCONSTITUTIONAL for violating the natural and primary right of parents to rear their minor children under Article II, Section 12 of the Constitution.

6. Section 17 of Republic Act No. 10354 is UNCONSTITUTIONAL insofar as it requires conscientious objectors to render pro bono reproductive health care services to which the conscientious objector objects to on religious or ethical grounds as a prerequisite to PhilHealth accreditation.

Pursuant to the expanded jurisdiction of this Court and its power to issue rules for the protection and enforcement of constitutional rights, the Court should issue an order:

1. DIRECTING the Food and Drug Administration to formulate the rules of procedure in the screening, evaluation and approval of all contraceptive drugs and devices that will be used under Republic Act No. 10354. The rules of procedure shall contain the following minimum requirements of due process: (a) publication, notice and hearing, (b) the Solicitor General shall be mandated to appear to represent the unborn and the State's interest in the protection of the life of the unborn, (c) interested parties shall be allowed to intervene, (d) the standard laid down in the Constitution, as adopted under Republic Act No. 10354, as to what constitutes allowable contraceptives shall be strictly followed, i.e., those which do not hann or destroy the life of the unborn from conception/fertilization, (e) in weighing the evidence, all reasonable doubts shall be resolved in favor of the protection and preservation of the right to life of the unborn from conception/fertilization, and (f) the other requirements of administrative due process, as summarized in Ang Tibay, shall be complied with.

The Food and Drug Administration is DIRECTED to submit these rules of procedure, within thirty (30) from receipt of this decision, for the Court's appropriate action.

2. DIRECTING the Food and Drug Administration to IMMEDIATELY, and in no case to exceed five days from the receipt of this decision, INFORM this Court if the contraceptives that it previously approved for use and distribution in the Philippines were screened, evaluated and/or tested against the standard laid down in the Constitution, as adopted under Republic Act No. 10354, on allowable contraceptives, i.e., those which do not harm or destroy the life of the unborn from conception/fertilization; and those which do not prevent the implantation of the fertilized ovum. The contraceptive drugs and devices previously approved by the Food and Drug Administrationshould not include contraceptives which (1) do not provide a 100% guarantee of preventing fertilization and (2) has a fail-safe mechanism which destroys the fertilized ovum if fertilization occurs (e.g., prevents the implantation of the fertilized ovum on the uterus).

3. DIRECTING the Department of Health in coordination with other concerned agencies to formulate the rules and regulations or guidelines which will govern the purchase and distribution/dispensation of the products or supplies under Section 9 of Republic Act No. 10354 covered by the certification from the Food and Drug Admnistration that said product and supply is made available on the condition that it is not to be used as an abortifacient subject to the following minimum due process requirements: (a) publication, notice and hearing, (b) the Solicitor General shall be mandated to represent the unborn and the State's interest in the protection of the life of the unborn, and (c) interested parties shall be allowed to intervene. The rules and regulations or guidelines shall provide sufficient detail as to the manner by which said product and supply shall be strictly regulated in order that they will not be used as an abortifacient and in order to sufficiently safeguard the right to life of the unborn. Pending the issuance and publication of these rules by the Department of Health, the Temporary Restraining Order insofar as the proviso in Section 9 of Republic Act No. 10354, as implemented by Section 7.03 of the IRR, relative to the subject products and supplies, which are made available on the condition that they will not be used as an abortifacient, shall remain in force.

4. DIRECTING the Department of Health to generate the complete and correct list of the government's reproductive health programs and services under Republic Act No. 10354 which will serve as the template for the complete and correct information standard and, hence, the duty to inform under Section 23(a)(l) of Republic Act No. 10354. The Department of Health is DIRECTED to distribute copies of this template to all health care service providers covered by Republic Act No. 10354.

MARIANO C. DEL CASTILLO
Associate Justice


Footnotes

1 Responsible Parenthood and Reproductive Health Act of 2012.

2 CONSTITUTION, Article VUI, Section I.

3 CONSTITUTION, Article VIII, Section 5(5).

4 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. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. (Emphasis supplied)

5 IV RECORD, CONSTITUTIONAL COMMISSION 579 (September 12, 1986).

6 IV RECORD, CONSTITUT IONAL COMMISSION 597 (September 12, 1986).

7 IV RECORD, CONSTITUTIONAL COMMISSION 599 (September 12, 1986).

8 IV RECORD, CONSTITUTIONAL COMMlSSION 600(September 12, 1986).

9 IV RECORD, CONSTITUTIONAL COMMJSSION 602 (September 12, 1986).

10 IV RECORD, CONSTITUTIONAL COMMISSION 683 (September 16, 1986).

11 410U.S. 11 3 (1973).

12 IV RECORD, CONSTITUTIONAL COMMISSION 682 (September 16, 1986).

13 IV RECORD, CONSTITUTIONAL COMMISSION 707 (September 17, 1986).

14 IV RECORD, CONSTITUTIONAL COMMISSION 683 (September 16, 1986).

15 IV RECORD, CONSTITUTIONAL COMMISSION 698(September1 7, 1986).

16 IV RECORD, CONSTITUTIONAL COMMISSION 803 (September 19, 1986).

17 IV RECORD, CONSTITUT IONAL COMMISSION 800 (September 19, 1986).

18 IV RECORD, CONSTITUT IONAL COMMISSION 668 (September 16, 1986).

19 IV RECORD, CONSTITUTIONAL COMMJSSION 669 (September 16, 1986).

20 IV RECORD, CONSTITUTIONAL COMMISSION 711 (September 17, 1986).

21 IV RECORD, CONSTITUTIONAL COMM ISSION 745 (September 17, 1986).

22 IV RECORD, CONSTITUTIONAL COMMlSSION 801-802 (September 19, 1986).

23 IV RECORD, CONSTITUTIONAL COMMISSION 668 (September 16, 1986); IV RECORD, CONSTITUTIONAL COMMISSION 705, 708, 724 (September 17, 1986); IV RECORD, CONSTITUTIONAL COMMISSION 800 (September 19, 1986).

24 IV RECORD, CONSTITUTIONAL COMMJSSION 807 (September 19, 1986).

25 IV RECORD, CONSTITUTIONAL COMMISSION 808 (September 19, 1986).

26 Memorandum for Alliance for the Family Foundation Philippines, Inc. (ALFI) et al. (Vol. 1), pp. 41-43.

27 See Civil Liberties Union v. Executive Secretary, G.R. No. 83896 , February 22, 1991, 194 SCRA 317, 337-338.

28 Supra note 10.

29 RULES OF PROCEDURE FOR E NVIRONMENTAL CASES, Rule 7.

30 Memorandum for Petitioners ALFI, et al. (Vol. 1), pp. 168-169.

31 361 Phil. 73 (1999).

32 Id. at 88.

33 TSN, July 9, 20 I 3, pp. 49-51.

34 As previously discussed, the word "primarily" is void.

35 See Oposa v. Factoran, G.R. No. 10 I 083, July 30, 1993, 224 SCRA 792, 802-803.

36 69 Phil. 635 (1940).

37 Memorandum for the Solicitor General, p. 17.

38 Id. at 7.

39 Section 7.03 Drugs, Medicines, and Health Products Already in the EDL. Drugs, medicines, and health products for reproductive health services already included in the EDL as of the effectivity of these Rules shall remain in the EDL, pending FDA certification that these are not to be used as abortifacients.

40 Like a law banning alcohol or cigarettes.

41 Ponencia, pp. 70-71, 82.

42 But it should be noted that Section 7 of the RH Law effectively grants to non-maternity specialty hospitals and hospitals owned and operated by a religious group the same right of a conscientious objector under Section 23 although the term "conscientious objector" is not specifically used in Section 7, to wit:

SEC. 7. Access to Family Planning. - All accredited public health facilities shall provide a full range of modern family planning methods, which shall also include medical consultations, 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 patients with the option to grant free care and services to indigents, except in the case of non-maternity specialty hospitals and hospitals owned and operated by a religious group, but they have the option to provide such full range of modem family planning methods: Provided, farther, That these hospitals shall immediately refer the person seeking such care and services to another health facility which is conveniently accessible: Provided, finally, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344.

43 REPUBLIC ACT NO. 8344 dated August 25, 1997 pertinently provides that:

Section 2. Section 2 of Batas Pambansa Bilang 702 is hereby deleted and in place thereof new sections 2, 3 and 4 are added, to read as follows:

"SEC. 2. For purposes of this Act, the following definitions shall govern:

"(a) 'Emergency' - a condition or state of a patient wherein based on the objective findings of a prudent medical officer on duty for the day there is immediate danger and where delay in initial support and treatment may cause loss of life or cause permanent disability to the patient.

"(b) 'Serious case' - refers to a condition of a patient characterized by gravity or danger wherein based on the objective findings of a prudent medical officer on duty for the day when left unattended to, may cause loss of life or cause permanent disability to the patient.x x x"

44 Estrada v. Escritor, 455 Phil. 411 (2003).

45 Id. at 600.

46 http://www.vatican.va/holy father/paul vi/encyclicals/documents/hf p-vi enc 25071968 humanae-vitae en.html last accessed on March 24, 2014.

47 Bernas, The 1987 Constitution of the Republic of the Phjlippines: A Commentary (2009) at 330.

48 Section 5.22 Exemption of Private Hospitals from Providing Family Planning Services. Private health facilities shall provide a full range of modem family planning methods to clients, unless the hospital is owned and operated by a religious group, or is c lassified as a non-maternity specialty hospital, as part of their annual licensing and accreditation requirements.

In order to receive exemption from providing the full range of modem famil y planning methods, the health care facility must comply with the following requirements:

a) Submission of proof of hospital ownership and management by a religious group or its status as a non-maternity specialty hospital;

b) Submission to the DOH of an affidavit stating the modem fam ily planning methods that the facility refuses to provide and the reasons for its objection;

c) Posting of a notice at the entrance of the facility, in a prominent location and using a clear/legible layout and font, enumerating the reproductive health services the facility does not provide; and

d) Other requirements as determined by the DOH.

Within sixty (60) days from the effectivity of these Rules, the DOH shall develop guidelines for the implementation ofthls provision.

49 Section 5.23 Private Skilled Health Professional as a Conscientious Objector. ln order to legally refuse to deliver reproductive health care services or information as a conscientious objector, a private skilled health professional shall comply with the following requirements:

a) Submission to the DOH of an affidavit stating the modem family planning methods that he or she refuses to provide and hls or her reasons for objection;

b) Posting of a notice at the entrance of the clinic or place of practice, in a prominent location and using a clear/legible font, enumerating the reproductive health services he or she refuses to provide; and

c) Other requirements as determined by the DOH.

Within sixty (60) days from the effectivity of these Rules, the DOH shall develop guidelines for the implementation of this provision.

50 Section 5.24 Public Skilled Health Professional as a Conscientious Objector. In order to legally refuse to deliver reproductive health care services or information as a conscientious objector, a public skilled health professional shall comply with the following requirements:

a) The skilled health professional shall explain to the client the limited range of services he/she can provide;

b) Extraordinary diligence shall be exerted to refer the client seeking care to another skilled health professional or volunteer willing and capable of delivering the desired reproductive health care service within the same facility;

c) If within the same health facility, there is no other skilled health professional or volunteer willing and capable of delivering the desired reproductive health care service, the conscientious objector shall refer the client to another specific health facility or provider that is conveniently accessible in consideration of the client's travel arrangements and financial capacity;

d) Written documentation of compliance with the preceding requirements; and

e) Other requirements as determined by the DOH.

In the event where the public skilled health professional cannot comply with all of the above requirements, he or she shall de liver the client's desired reproductive health care service or information without further delay.

Provided, That skilled health professionals such as provincial, city, or municipal health officers, chiefs of hospital, head nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the duty to implement the provisions of the RPRH Act and these Rules, cannot be considered as conscientious objectors.

Within sixty (60) days from the effectivity of these rules, the DOH shall develop guide lines for the implementation of this provision.

51 Supra note 44.

52 Central Bank Employees Assoc., Inc. v. Bangko Sentral ng Pilipinas, 487 Phil. 531 , 583-584 (2004).

53 Id. at 585.

54 Id. at 644. (Panganiban, J. dissenting)

55 Id.

56 Id. at 645-646.

57 Supra note 47 at 83.

58 The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.

59 CONSTITUTION, Article VIII , Section I.

60 Supra note 47 at 83.

61 Id.

62 Vancil v. Belmes, 411 Phil. 359, 365 (2001).

63 Supra note 47 at 85.

64 Section 14 of the RH Law states:

SEC. 14. Age- and Development-Appropriate Reproductive Health Education. - The State shall provide age- and development-appropriate reproductive health education to adolescents which shall be taught by adequately trained teachers infonnal and nonfonna l educational system and integrated in relevant subjects such as, but not limited to, values formation; knowledge and skills in self-protection against discrimination; sexual abuse and violence against women and children and other forms of gender based violence and teen pregnancy; physical, social and emotional changes in adolescents; women's rights and children's rights; responsible teenage behavior; gender and development; and responsible parenthood: Provided, That flexibility in the fonnulation and adoption of appropriate course content, scope and methodology in each educational level or group shall be allowed onl y after consultations with parents-teachers-community associations, school officials and other interest groups. The Department of Education (DepED) shall formulate a curriculum which shall be used by public schools and may be adopted by private schools.

65 Section 4(b), RH Law.

66 British American Tobacco v. Camacho, 584 Phil. 489 (2008).

67 Id.

68 Id.

69 See Cruz, Constitutional Law (2007), at 213-215.

70 The State shall ensure the autonomy of local governments.

71 The territorial and political subdivisions shall enjoy local autonomy.

72 Ponencia, p. 91.

73 SEC. 5. Hiring of Skilled Health Professionals for Maternal Health Care and Skilled Birth Attendance. -The LGUs shall endeavor to hire an adequate number of nurses, midwives and other skilled health professionals for maternal health care and skilled birth attendance to achieve an ideal skilled health professional-to-patient ratio taking into consideration DOH targets: Provided, That people in geographically isolated or highly populated and depressed areas shall be provided the same level of access to health care: Provided, further, That the national government shall provide additional and necessary funding and other necessary assistance for the effective implementation of this provision. [Emphasis supplied]

74 SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall procure, distribute to LGUs and monitor the usage of family planning supplies for the whole country. The DOH shall coordinate with all appropriate local government bodies to plan and implement this procurement and distribution program. The supply and budget allotments shall be based on, among others, the current levels and projections of the following:

(a) Number of women ofreproductive age and couples who want to space or limit their children;

(b) Contraceptive prevalence rate, by type of method used; and

(c) Cost of family planning supplies.

Provided, That LGUs may implement its own procurement, distribution and monitoring program consistent with the overall provisions of this Act and the guidelines of the DOH. [Emphasis supplied]

75 SEC. 13. Mobile Health Care Service. - The national or the local government may provide each provincial, city, municipal and district hospital with a Mobile Health Care Service (MHCS) in the form of a van or other means of transportation appropriate to its terrain, taking into consideration the health care needs of each LGU. The MHCS shall deliver health care goods and services to its constituents, more particularly to the poor and needy, as well as disseminate knowledge and information on reproductive health. The MHCS shall be operated by skilled health providers and adequately equipped with a wide range of health care materials and information dissemination devices and equipment, the latter including, but not limited to, a television set for audio-visual presentations. All MHCS shall be operated by LGUs of provinces and highly urbanized cities. [Emphasis supplied]

76 SEC. 8. Maternal Death Review and Fetal and Infant Death Review. - All LGUs, national and local government hospitals, and other public health units shall conduct an annual Maternal Death Review and Fetal and Infant Death Review in accordance with the guidelines set by the DOH. Such review should result in an evidence-based programming and budgeting process that would contribute to the development of more responsive reproductive health services to promote women's health and safe motherhood. [Emphasis supplied]

77 SEC. 13. Mobile Health Care Service. - The national or the local government may provide each provincial, city, municipal and district hospital with a Mobile Health Care Service (MHCS) in the form of a van or other means of transportation appropriate to its terrain, taking into consideration the health care needs of each LGU. The MHCS shall deliver health care goods and services to its constituents, more particularly to the poor and needy, as well as disseminate knowledge and information on reproductive health. The MHCS shall be operated by skilled health providers and adequately equipped with a wide range of health care materials and information dissemination devices and equipment, the latter including, but not limited to, a television set for audio-visual presentations. All MHCS shall be operated by LGUs of provinces and highly urbanized cities. (Emphasis supplied)

78 SEC. 16. Capacity Building of Barangay Health Workers (BHWs). - The DOH shall be responsible for disseminating information and providing training programs to the LGUs. The LGUs, with the technical assistance of the DOH, shall be responsible for the training of BHWs and other barangay volunteers on the promotion ofreproductive health. The DOH shall provide the LGUs with medical supplies and equipment needed by BHWs to carry out their functions effectively: Provided, further, That the national government shall provide additional and necessary funding and other necessary assistance for the effective implementation of this provision including the possible provision of additional honoraria for BHWs. (Emphasis supplied)

79 Section f(3)(2), RH Law:

SEC. 3. Guiding Principles for Implementation. - This Act declares the following as guiding principles:

(f) The State shall promote programs that: xxx

(3) ensure effective partnership among national government, local government units (LGUs) and the private sector in the design, implementation, coordination, integration, monitoring and evaluation of people-centered programs to enhance the quality oflife and environmental protection; (Emphasis supplied)

80 Ponencia, p. 92.


The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING OPINION

REYES, J.:

I concur with the ponencia's declaration that Republic Act (R.A.) No. 10354, otherwise known as the Responsible Parenthood and Reproductive Health Act of 2012, perused in its entirety, is not recusant of the various rights enshrined in our Constitution. Particularly, I concur that: (1) R.A. No. 10354, in making contraceptives and other reproductive health products and services more accessible, does not run counter to the constitutional right to life; (2) R.A. No. 10354, in giving priority to the poor in the implementation of government programs to promote basic reproductive health care, does not violate the equal protection clause of the Constitution; (3) Section 9,1 in mandating the inclusion of family planning products and supplies in the Philippine National Drug Formulary System, does not violate the right to health of the people; (4) Section 152 is not anathema to freedom of religion; (5) Section 173 does not amount to involuntary servitude; (6) the delegation by Congress to the Food and Drug Administration (FDA) of the power to determine whether a supply or product is to be included in the Essential Drugs List constitutes permissible delegation of legislative powers; and (7) Sections 5,4 6,5 and 166 do not amount to an encroachment on the autonomy of local governments.

The ponencia declared Section 7, insofar as it dispensed with the requirement of written parental consent for minors who are already parents or have had a miscarriage, with regard to access to modem methods of family planning, unconstitutional as it infringes on the right to privacy with respect to one's family. I agree that Section 7, inasmuch as it dispensed with the requirement of parental consent, is unconstitutional. Nevertheless, in addition to ponencia's ratiocination on the right to privacy, I would discuss further that Section 7, by dispensing with the requirement of parental consent for minors in certain cases, violates Section 12, Article II of the 1987 Constitution.

I agree with the ponencia's conclusion that the attack on the constitutionality of Section 14, which provides for age-and development-appropriate reproductive health education to adolescents, must fail. However, I disagree with the ponencia insofar as it declared that the issues raised against the constitutionality of Section 14 are premature as the Department of Education (DepEd) has yet to prepare a curriculum on age-and development-appropriate reproductive health education. The Court has already made pronouncements on the constitutionality of the other provisions of R.A. No. 10354 despite the lack of an actual case or controversy, the issues presented being matters of transcendental importance. There is thus no reason for the Court to avoid a definitive ruling on the constitutionality of Section 14. It is my view, which I will expound later, that Section 14 does not: (1) violate the academic freedom of educational institutions; (2) intrude into the natural and primary right of parents to rear their children; and (3) amount to an infringement of the freedom of religion.

I dissent, however, from the ponencia's conclusion that the following provisions of R.A. No. 10354 are unconstitutional:

(1) Section 7, insofar as it imposes on non-maternity specialty hospitals and hospitals owned and operated by a religious group the duty to refer a person seeking access to modem family planning methods to another health facility , for being violative of the freedom of religion;

(2) Section 23(a)(1), which punishes any health care service provider who withholds information or restricts the dissemination thereof regarding programs and services on reproductive health, and Section 23(a)(2), which punishes any health care service providers who refuse to perform reproductive health procedures on the ground of lack of consent or authorization in certain cases, for being violative of the freedom of religion;

(3) Section 23(a)(2)(i), which allows a married individual to undergo reproductive health procedure sans the consent of his/her spouse, for being contrary to one's right to privacy;

(4) Section 23(a)(3), insofar as it requires a conscientious objector to immediately refer a person seeking reproductive health care and service to another health care service provider, for being violative of the freedom of religion;

(5) Section 23(b), which punishes any public officer charged with the duty to implement the provision of R.A. No. 10354 who prohibits or restricts the delivery of reproductive health care services, and Section 5.24 of the Implementing Rules and Regulations (IRR) of R.A. No. 10354, which, inter alia, provides that those charged with the duty to implement the provisions of R.A. No. 10354 cannot be considered as conscientious objectors, for being violative of the freedom of religion; and

(6) Section 17, insofar as it included the rendition of at least forty-eight (48) hours annual pro bona reproductive health services as a prerequisite in the accreditation under PhilHealth.

Section 7, inasmuch as it dispenses
with the requirement of written
parental consent, violates Section
12, Article II of the Constitution.

Parents have the natural and primary right and duty to nurture their children. This right is recognized by Section 12, Article II of the Constitution, which pertinently provides that:

Section 12. xxx The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.

Concomitant to their natural and primary right and duty to provide for, care, and nurture their children, parents exercise parental authority over the persons of their unemancipated children. In this regard, Article 209 of the Family Code7 provides that:

Article 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being. (Emphasis ours)

The authority that is exercised by parents over their unemancipated children includes the right and duty to enhance, protect, preserve, and maintain their physical and mental health and to represent them in all matters affecting their interests.8 The authority exercised by parents over their unemancipated children is terminated, inter alia, upon emancipation of the child.9 Emancipation takes place upon attainment of the age of majority, which commences at the age of eighteen years.10

Section 7 of R.A. No. 10354 pertinently provides that:

Section 7. Access to Family Planning. - All accredited public health facilities shall provide a full range of modern family planning methods, which shall also include medical consultations, 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 patients with the option to grant free care and services to indigents, except in the case of non-maternity specialty hospitals and hospitals owned and operated by a religious group, but they have the option to provide such full range of modern family planning methods:

Provided, further, That these hospitals shall immediately refer the person seeking such care and services to another health facility which is conveniently accessible: Provided, finally, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344.

No person shall be denied information and access to family planning services, whether natural or artificial: Provided, That minors will not be allowed access to modern methods of family planning without written consent from their parents or guardian/s except when the minor is already a parent or has had a miscarriage.

Section 7 seeks to make modem family planning methods more accessible to the public. The provision mandates that no person shall be denied information and access to family planning services, whether natural or artificial. However, the last proviso of Section 7 restricts the access of minors to modem methods of family planning; it requires a written parental consent before a minor may be allowed access thereto. This is but recognition of the parental authority that is exercised by parents over the persons of their unemancipated children. That it is both a duty and a right of the parents to protect the physical health of their unemancipated children.

However, Section 7 provided an exception to the requirement of written parental consent for minors. A minor who is already a parent or has had a miscarriage may be allowed access to modern methods of family planning notwithstanding the absence of a written parental consent therefor. This runs afoul of the natural and primary right and duty of parents in the rearing of their children, which, under Section 12, Article II of the Constitution, should receive the support of the government.

There exists no substantial distinction as between a minor who is already a parent or has had a miscarriage and a minor who is not yet a parent or never had a miscarriage. There is no cogent reason to require a written parental consent for a minor who seeks access to modern family planning methods and dispense with such requirement if the minor is already a parent or has had a miscarriage. Under the Family Code, all minors, generally, regardless of his/her circumstances, are still covered by the parental authority exercised by their parents. That a minor is already a parent or has had a miscarriage does not operate to divest his/her parents of their parental authority; such circumstances do not emancipate a minor.

It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the State can neither supply nor hinder.11 Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments.12

Considering that the last proviso of Section 7 operates to divest parents of their parental authority over the persons of their minor child who is already a parent or has had a miscarriage, the same must be struck down for being contrary to the natural and primary right and duty of parents under Section 12, Article II of the Constitution.

Section 14 does not violate the
academic freedom of educational
institutions nor infringe on the
natural and primary right and duty
of parents to rear their children.

G.R. Nos. 204819, 204934, et al.

Section 1413 of R.A. No. 10354 mandates the provision of age- and development-appropriate reproductive health education, which would be taught to adolescents14 in public schools by adequately trained teachers. The curriculum on age- and development-appropriate reproductive health education, which shall be formulated by the DepEd after consultation with parents-teachers-community associations, shall include subjects such as: values formation; knowledge and skills in self-protection against discrimination; sexual abuse and violence against women and children and other forms of gender based violence and teen pregnancy; physical, social and emotional changes in adolescents; women's rights and children's rights; responsible teenage behavior; gender and development; and responsible parenthood.

The petitioners claim that Section 14, by mandating the inclusion of age- and development-appropriate reproductive health education to adolescents, violates the academic freedom of educational institutions since they will be compelled to include in their curriculum a subject, which, based on their religious beliefs, should not be taught to students.15

The petitioners' claim is utterly baseless. Section 5(2), Article XIV of the Constitution guarantees all institutions of higher learning academic freedom. The institutional academic freedom includes the right of the school or college to decide and adopt its aims and objectives, and to determine how these objections can best be attained, free from outside coercion or interference, save possibly when the overriding public welfare calls for some restraint. The essential freedoms subsumed in the term "academic freedom" encompass the freedom of the school or college to determine for itself: (1) who may teach; (2) what may be taught; (3) how lessons shall be taught; and (4) who may be admitted to study.16

An analysis of the foregoing claim requires a dichotomy between public and private educational institutions. The last sentence of Section 14 provides that the age- and development-appropriate reproductive health curriculum that would be formulated by the DepEd "shall be used by public schools and may be adopted by private schools." The mandated reproductive health education would only be compulsory for public schools. Thus, as regards private educational institutions, there being no compulsion, their constitutional right to academic freedom is not thereby violated.

As regards public educational institutions, though they are mandatorily required to adopt an age- and development-appropriate reproductive health education curriculum, the claimed curtailment of academic freedom is still untenable. Section 4(1), Article XIV of the Constitution provides that "[t]he State x x x shall exercise reasonable supervision and regulation of all educational institutions." The constitutional grant of academic freedom does not withdraw from the State the power to supervise and regulate educational institutions, whether public or private. The only requirement imposed by the Constitution on the State's supervision and regulation of educational institutions is that the exercise thereof must be reasonable.

Congress deemed it appropriate to include a provision on age- and development-appropriate reproductive health education as a means to address the rise of teenage pregnancies.17 In a 2002 survey conducted by the University of the Philippines Population Institute, it was shown that 23% of young people aged 15 to 24 years old had already engaged in pre-marital sex; that pre-marital sex was prevalent among 31.1% of the boys and 15.4% among the girls.18 The survey, after a consideration of other factors, concluded that many young people, despite having inadequate knowledge on reproductive health problems, engage in risky sexual behavior.19 That, despite having liberal views on sex and related matters, they rarely seek medical help for reproductive health problems.20 Poignantly, given this factual milieu, the provision on age- and development-appropriate reproductive health education under Section 14 is reasonable.

The importance of integrating the subject of the dangers and dire consequences of alcohol abuse or even the menace of dangerous drugs in the curricula of primary and secondary educational institutions cannot be disputed. The prevalence of teenage pregnancy and the risks surrounding it is just as equally alarming as the dangers of alcohol and substance abuse. Accordingly, I find nothing objectionable in the integration of age- and development-appropriate reproductive health education in the curricula of primary and secondary schools.

The petitioners further assert that Section 14 violates the right to privacy of the parents as it amounts to a denigration of "the sanctity of the family home" and has "usurped the rights and duties of parents to rear and educate their children in accordance with their religious conviction by forcing some rules and State programs for reproductive health contrary to their religious beliefs." The petitioners claim that parents have the primary duty to educate their children, especially on matters affecting reproductive health. They thus allege that the State's interference in such a delicate parental task is unwarranted and should not be countenanced.

It is conceded that parents, as stated earlier, indeed have the natural and primary right and duty in the rearing of their children.21 The Constitution further affirms such right and duty by mandating that the State, in providing compulsory elementary education for all children of school age, is proscribed from imposing a limitation on the natural rights of parents to rear their children.22

At the core of the foregoing constitutional guarantees is

the right to privacy of the parents in the rearing of their children.

Essentially, the question that has to be resolved is whether the inclusion of age- and development-appropriate reproductive health education in the curriculum of primary and secondary schools violates the right to privacy of the parents in the rearing of their children. The standard to be used in determining the validity of a government regulation, which is claimed to infringe the right to privacy of the people, was explained by the United States (US) Supreme Court in the land mark case of Griswold v. Connecticut23 in this wise:

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.24 (Emphasis ours)

Thus, when a government regulation is claimed to infringe on the right to privacy, courts are required to weigh the State's objective against the privacy rights of the people. Although considered a fundamental right, the right to privacy may nevertheless succumb to a narrowly drawn government regulation, which advances a legitimate and overriding State interest.25

As explained earlier, Section 14 aims to address the increasing rate of teenage pregnancies in the country and the risks arising therefrom, which is undeniably a legitimate and overriding State interest. The question that has to be asked then is whether Section 14, in advancing such legitimate and overriding State interest, has employed means, which are narrowly tailored so as not to intrude into the right to privacy of the people.

Under Section 14, the formulation of the curriculum on age- and development-appropriate reproductive health education is a collaborative process. It provides "[t]hat flexibility in the formulation and adoption of appropriate course content, scope and methodology in each educational level or group shall be allowed only after consultations with parents-teachers-community associations, school officials and other interest groups." Section 14 thus takes into account the relevant concerns of parents and other interest groups in the adoption and implementation of the proposed age- and development-appropriate reproductive health education; any and all objections thereto based on religious beliefs would be considered during the formulation of the curriculum. In this sense, Section 14, in taking into account the relevant concerns of parents and other interest groups in the formulation of the curriculum, has been narrowly tailored so as not to invade the right to privacy of the parents.

Equally untenable is the petitioners' claim that the provision of age-and development-appropriate reproductive health education under Section 14 unduly burdens their freedom of religion.26 A similar claim was resolved by the Supreme Court of Hawaii in Medeiros v. Kiyosaki.27 In Medeiros , Hawaii's Department of Education, as part of its family life and sex education program, exhibits a film series entitled "Time of Your Life" to fifth and sixth grade students in public schools. The plaintiffs therein, parents and guardians of fifth and sixth grade students, sought to enjoin the exhibition of the said film series, claiming, inter alia, that the said program unduly interferes with their religious freedom.

The Supreme Court of Hawaii held that the Department of Education's family life and sex education program does not infringe on the religious freedom of the plaintiffs therein. Relying on the case of Epperson v. Arkansas,28 the Supreme Court of Hawaii stressed that upholding the claim of the plaintiffs therein would amount to tailoring the teaching and learning in their schools to the principles or prohibitions of a religious sect, which is anathema to the non-establishment clause.

Epperson involves a challenge to the constitutionality of the "anti-evolution" statute adopted by the State of Arkansas in 1928, which makes it unlawful for a teacher in any State-supported school or university to teach the theory or doctrine that mankind ascended or descended from a lower order of animals, or to adopt or use in any such institution a textbook that teaches this theory. In declaring the statute unconstitutional, the US Supreme Court declared that:

Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion, and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.

As early as 1872, this Court said: "The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect." Watson v. Jones, 13 Wall. 679, 80 U.S. 728. This has been the interpretation of the great First Amendment which this Court has applied in the many and subtle problems which the ferment of our national life has presented for decision within the Amendment's broad command.

x x x x

There is and can be no doubt that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma. In Everson v. Board of Education, this Court, in upholding a state law to provide free bus service to school children, including those attending parochial schools, said: "Neither [a] State nor the Federal Government can pass laws which aid one religion, aid all religions, or prefer one religion over another." 330 U.S. 1, 330 U.S. 15 (1947).29 (Emphasis ours)

Declaring the provision of an age- and development-appropriate reproductive health education to primary and secondary students unconstitutional on the pretext that it conflicts with the religious convictions of others would amount to an endorsement of religion contrary to the non- establishment clause.30 The petitioners' claimed infringement of their religious freedom is flawed in two ways: first, Section 14 takes into account the religious beliefs of parents by soliciting their participation in the formulation of the curriculum on age- and development-appropriate reproductive health education; and second, to permit the petitioners to control what others may study because the subject may be offensive to their religious or moral scruples would violate the non-establishment clause.31

The "duty to refer" under Sections
7 and 23(a)(3) does not restrict the
freedom of religion.

The ponencia declared that the "duty to refer" imposed by Sections 7 and 23(a)(3) of R.A. No. 10354 is repugnant to the constitutional right to freedom of religion and, thus, should be struck down as unconstitutional. The ponencia explained that "once the medical practitioner, against his will, refers a patient seeking information on modem reproductive health products, services, procedures and methods, his conscience is immediately burdened as he has been compelled to perform an act against his beliefs." The ponencia further described the said "duty to refer" as "a false compromise because it makes pro-life health providers complicit in the performance of an act that they find morally repugnant or offensive."

I do not agree.

In order to properly assess the constitutionality of Sections 7 and 23(a)(3), the provisions thereof must be considered in its entirety. Judicial scrutiny of the subject provisions cannot be delimited to a particular provision thereof, i.e., the "duty to refer," lest the Court lose sight of the objectives sought to be achieved by Congress and the ramifications thereof with regard to the free exercise clause. The "duty to refer" must be construed with due regard to the other provisions in Sections 7 and 23(a)(3) and the objectives sought to be achieved by R.A. No. 10354 in its entirety.

The Constitution guarantees that no law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof; that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.32 Religious freedom forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship, and conversely, it safeguards the free exercise of the chosen form of religion.33

The twin clauses of free exercise clause and non-establishment clause express an underlying relational concept of separation between religion and secular government.34 The idea advocated by the principle of separation of church and State is to delineate the boundaries between the two institutions and thus avoid encroachments by one against the other because of a misunderstanding of the limits of their respective exclusive jurisdictions. While the State is prohibited from interfering in purely ecclesiastical affairs, the Church is likewise barred from meddling in purely secular matters.35

Freedom of religion embraces two aspects - freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.36 The free exercise clause does not unconditionally inhibit the State from requiring the performance of an act, or the omission thereof, on religious pretenses.37 Religious freedom, like all other rights in the Constitution, can be enjoyed only with a proper regard for the rights of others.38 It is error to think that the mere invocation of religious freedom will stalemate the State and render it impotent in protecting the general welfare.39

Nonetheless, the State, in prescribing regulations with regard to health, morals, peace, education, good order or safety, and general welfare of the people, must give due deference to the free exercise clause; it must ensure that its regulation would not invidiously interfere with the religious freedom of the people. In such cases, the legitimate secular objectives of the State in promoting the general welfare of the people must be assessed against the religious scruples of the people.

In Estrada v. Escritor,40 the Court held that the standard of benevolent neutrality "is the lens with which the Court ought to view religion clause cases[.]"41 The Court explained the benevolent neutrality/ accommodation standard in this wise:

With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain circumstances. Accommodations are government policies that take religion specifically into account not to promote the government's favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the exercise of a person's or institution's religion. As Justice Brennan explained, the "government [may] take religion into account . . . to exempt, when possible, from generally applicable governmental regulation individuals whose religious beliefs and practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in which voluntary religious exercise may flourish." x x x Accomodation is forbearance and not alliance. It does not reflect agreement with the minority, but respect for the conflict between the temporal and spiritual authority in which the minority finds itself.42 (Emphasis ours and citations omitted)

In ascertaining the limits of the exercise of religious freedom, in cases where government regulations collide with the free exercise clause, the Court further declared that, following the benevolent neutrality/accommodation standard, the "compelling state interest" test should be applied.43 Under the "compelling state interest test," a State regulation, which is challenged as being contrary to the free exercise clause, would only be upheld upon showing that: (1) the regulation does not infringe on an individual's constitutional right of free exercise; or (2) any incidental burden on the free exercise of an individual's religion maybe justified by a compelling state interest in the regulation of a subject within the State's constitutional power to regulate by means, which imposed the least burden on religious practices.44

With the foregoing principles in mind, it is my view that Sections 7 and 23(a)(3) of R.A. No. 10354 d9es not run afoul of religious freedom. On the contrary, the said provisions explicitly recognize the religious freedom of conscientious objectors by granting accommodation to their religious scruples.

The right to health is a universally recognized human right.45 In this regard, the Constitution mandates the State to "protect and promote the right to health of the people and instill health consciousness among them."46 The Constitution further requires the State to "adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost;" that in the provision of health care service to the people, the needs of the underprivileged, sick, elderly, disabled, women, and children should be prioritized.47

Heeding the constitutional mandate to protect and promote the right to health of the people, Congress enacted R.A. No. 10354. Section 2 of R.A. No. 10354 thus pertinently states that:

Section 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all persons including their right to equality and nondiscrimination of these rights, the right to sustainable human development, the right to health which includes reproductive health, the right to education and information, and the right to choose and make decisions for themselves in accordance with their religious convictions, ethics, cultural beliefs, and the demands of responsible parenthood.

x x x x (Emphasis ours)

Particularly, R.A. No. 10354 seeks to provide "effective and quality reproductive health care services and supplies,"48 which would "ensure maternal and child health, the health of the unborn, safe delivery and birth of healthy children, and sound replacement rate, in line with the State's duty to promote the right to health, responsible parenthood, social justice and full human development."49 R.A. No. 10354, as a corollary measure for the protection of the right to health of the people, likewise recognizes necessity to "promote and provide information and access, without bias, to all methods of family planning."50 Primarily, the objective of R.A. No. 10354 is to provide marginalized sectors of society, particularly the women and the poor, access to reproductive health care services, and to health care in general, of which they have been deprived for many decades due to discrimination and lack of access to information.51

Sections 7 and 23(a)(3) effectuate the foregoing objectives that R.A . No. 10354 seeks to attain. Section 7, as stated earlier, facilitates the access by the public, especially the poor and marginalized couples having infertility issues desiring to have children, to modern family planning methods. It thus mandates all accredited public health facilities to provide a full range of modern family planning methods, which includes medical consultations, supplies and procedures. Private health facilities are likewise required to extend family planning services to paying patients.

On the other hand, Section 23(a)(3) penalizes the refusal of any health care service provider to extend quality reproductive health care services and information on account of the patient's marital status, gender, age, religious convictions, personal circumstances, or nature of work. Thus:

Section 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

x x x x

(3) Refuse to extend quality health care services and information on account of the person's marital status, gender, age, religious convictions, personal circumstances, or nature of work: Provided, That the conscientious objection of a health care service provider based on his/her ethical or religious beliefs shall be respected; however, the conscientious objector shall immediately refer the person seeking such care and services to another health care service provider within the same facility or one which is conveniently accessible: Provided, further, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344, which penalizes the refusal of hospitals and medical clinics to administer appropriate initial medical treatment and support in emergency and serious cases;

x x x x (Emphasis ours)

Nevertheless, although Section 7 provides "that family planning services shall likewise be extended by private health facilities to paying patients," it nevertheless exempts "non-maternity specialty hospitals and hospitals owned and operated by a religious group" from providing full range of modern family planning methods. Instead, Section 7 imposes on non-maternity specialty hospitals and hospitals owned and operated by a religious group the duty to immediately refer patients seeking reproductive health care and services to another health facility that is conveniently accessible.

In the same manner, the prohibition imposed under Section 23(a)(3) is not absolute; it recognizes that a health care service provider may validly refuse to render reproductive health services and information if he/she conscientiously objects thereto "based on his/her ethical or religious beliefs." Nevertheless, Section 23(a)(3) likewise imposes a corresponding duty on such conscientious objector to immediately refer the person seeking reproductive health services to another health care service provider within the same facility or one, which is conveniently accessible.

It cannot be denied that the State has a legitimate interest in the promotion and protection of the right to reproductive health of the people. The question that has to be resolved then is whether such interest can be considered compelling as to justify any incidental burden on the free exercise of religion.

The determination of whether there exists a compelling state interest that would justify an incidental burden involves balancing the interest of the State against religious liberty to determine which is more compelling under the particular set of facts. In assessing the state interest, the court will have to determine the importance of the secular interest and the extent to which that interest will be impaired by an exemption for the religious practice.52 Accordingly, the supposed burden on the religious freedom of conscientious objectors in complying with the "duty to refer" would have to be weighed against the State's interest in promoting the right of the people to reproductive health.

According to the 2010 State of World Population prepared by the United Nations Population Fund, in the Philippines, 230 mothers die out of every 100,000 live births while 21 infants die out of every 1,000 live births.53 Daily, there are about 15 women dying due to childbirth and pregnancy related complications.54 About 11% of all deaths among women of reproductive age in the Philippines are due to maternal death.55 Further, for every minute, 3 babies are born, and for every 1000 babies born, 33 die before reaching age five.56 The foregoing statistics paints a harrowing tale of the state of the country's reproductive health. It is quite unfortunate that the country has a high rate of maternal and infant deaths, when it can be significantly reduced with proper and effective reproductive health care.

No less distressing is the state of unintended pregnancies, and its equally harrowing consequences, in the country. According to a study prepared by the Alan Guttmacher Institute (AGI), there were 1.9 million unintended pregnancies in the Philippines in 2008, resulting in two main outcomes-unplanned births and unsafe abortions. In the Philippines, 37% of all births are either not wanted at the time of pregnancy (mistimed) or entirely unwanted, and 54% of all pregnancies are unintended. The AGI further discovered that, on average, Filipino women give birth to more children than they want, which is particularly striking among the poorest Filipino women, who have nearly two children more than they intend to have.57

The AGI stressed that the foregoing statistics can be attributed to low contraceptive use and high levels of unmet need for contraception. The AGI pointed out that in 2008, more than 90% of unintended pregnancies occurred among women using traditional, ineffective methods or no method at all. The study further showed that poor women are less likely to use a contraceptive method than non-poor women (43% vs. 51%), and in regions where poverty is common, contraceptive use is substantially lower than the national average-e.g., 38% in the Zamboanga Peninsula and 24% in the Autonomous Region in Muslim Mindanao.58

The present condition of the country's reproductive health care, taken together with the Constitution's mandate to promote and protect the right to health of the people, constitutes a compelling state interest as would justify an incidental burden on the religious freedom of conscientious objectors. Sections 7 and 23(a)(3) of R.A. No. 10354 were crafted to ensure that the government's effort in disseminating information and providing access to services and programs on reproductive health would not be stymied. The said provisions seek to improve the condition of the reproductive health care in the country.

Nevertheless, Congress recognized that, in enacting regulations to further the reproductive health of the people, including access to modem family planning methods, resistance thereto based on religious scruples would abound. Notwithstanding the presence of a compelling state interest in the promotion and protection of reproductive health, Congress deemed it proper to carve out exemptions that specifically take into account the religious dissensions of conscientious objectors, which effectively exempts them from the requirements imposed under Sections 7 and 23(a)(3). In this regard, it cannot thus be claimed that the said provisions invidiously interfere with the free exercise of religion.

Nevertheless, it cannot be denied that the government's effort to provide increased access to information, programs, and services regarding reproductive health would be seriously hampered by the exemption accorded to conscientious objectors. A considerable number of health facilities in the country are owned and operated by religious institutions. Likewise, being a predominantly Catholic country, there are a considerable number of health service providers who, due to their religious convictions, view modern methods of family planning, a major component of reproductive health under R.A. No. 10354, as immoral.

In view of the accommodation granted to conscientious objectors under Sections 7 and 23(a)(3), a great portion of the public would still be denied access to information, programs, and services regarding reproductive health, thus, effectively defeating the lofty objectives of R.A. No. 10354. Thus, Congress, still recognizing the religious freedom of conscientious objectors, instead imposed on them the "duty to refer" the patients seeking reproductive health care and service to another health facility or reproductive health care service provider. Under the circumstances, the "duty to refer" imposes the least possible interference to the religious liberties of conscientious objectors.

Thus, the "duty to refer" imposed by Sections 7 and 23(a)(3) does not invidiously interfere with the religious freedom of conscientious objectors; any discomfort that it would cause the conscientious objectors is but an incidental burden brought about by the operation of a facially neutral and secular regulation. Not all infringements of religious beliefs are constitutionally impermissible. Just as the religious freedom of conscientious objectors must be respected, the higher interest of the State should likewise be afforded utmost protection.

Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved an individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs,59 particularly in this case where the provisions in question have already given accommodation to religious dissensions. Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process.60

Further, the health care industry is one that is imbued with public interest. Their religious scruples aside, health facilities and health care service providers owe it to the public to give them choice on matters affecting reproductive health. Conscientious objectors cannot be permitted to impose their religious beliefs on others by denying them the choice to do so as it would amount to according a preferred status to their rights over the rights of others.

The duty to provide information
regarding programs and services on
reproductive health under Section
23(a)(1) does not run afoul of
religious freedom.

Section 23(a)(1)61 punishes any health care service provider who either: (1) knowingly withhold information regarding programs and services on reproductive health; (2) knowingly restrict the dissemination of information regarding programs and services on reproductive health; and/or (3) intentionally provide incorrect information regarding programs and services on reproductive health.

The ponencia struck down Section 23(a)(1) as being unconstitutional as it supposedly impinges on the religious freedom of health care service providers. That in the dissemination of information regarding programs and services on reproductive health, the religious freedom of health care service providers should be respected.

I do not agree.

Contrary to the insinuation of the ponencia, Section 23(a)(1) does not compel health care service providers to violate their religious beliefs and convictions. Section 23(a)(1) does not absolutely prohibit a health care service provider from withholding information regarding programs and services on reproductive health.

A rule of statutory construction is that a statute must be construed as a whole. The meaning of the law is not to be extracted from a single part, portion or section or from isolated words and phrases, clauses or sentences, but from a general consideration or view of the act as a whole. Every part of the statute must be interpreted with reference to the context.62

In line with this rule, Section 23(a)(1) should be read in conjunction with Section 23(a)(3), which provides that "the conscientious objection of a health care service provider based on his/her ethical or religious belief shall be respected."

Accordingly, a health care service provider who conscientiously objects, based on his/her ethical or religious beliefs, to programs and services regarding reproductive health is exempted from the effects of Section 23(a)(1) only insofar as it punishes a health care service provider who knowingly withholds information on said programs and services. Section 23(a)(1), in relation to Section 23(a)(3), recognizes that a conscientious objector cannot be compelled to provide information on reproductive health if the same would go against his/her religious convictions. In such cases, however, the conscientious objector, pursuant to Section 23(a)(3), has the correlative duty to immediately refer the person seeking information on programs and services on reproductive health to another health care service provider within the same facility or one which is conveniently accessible.

However, a health care service provider who knowingly restricts the dissemination of information or intentionally provides incorrect information on programs and services regarding reproductive health, though the said acts are based on his/her conscientious objections, would still be liable under Section 23(a)(1).

Section 23(a)(1) recognizes the primacy of the right of an individual to be informed and, accordingly, exercise his/her right to choose and make decisions on matters affecting his/her reproductive health. The provision aims to assure that every Filipino will have access to unbiased and correct information on the available choices he/she have with regard to reproductive health.63

It is conceded that the rights of those who oppose modem family planning methods, based on ethical or religious beliefs, should be respected. This is the reason why Section 23(a)(1), in relation to Section 23(a)(3), exempts a conscientious objector from the duty of disclosing information on programs and services regarding reproductive health.

However, such accommodation does not give license to the conscientious objectors to maliciously provide wrong information or intentionally restrict the dissemination thereof to those who seek access to information or services on reproductive health. Just as their rights must be respected, conscientious objectors must likewise respect the right of other individuals to be informed and make decisions on matter affecting their reproductive health. The freedom to act on one's belief, as a necessary segment of religious freedom, like all other rights, comes with a correlative duty of a responsible exercise of that right. The recognition of a right is not free license for the one claiming it to run roughshod over the rights of others.64

Further, it cannot be gainsaid that the health care industry is one, which is imbued with paramount public interest. The State, thus, have the right and duty to ensure that health care service providers would not knowingly restrict the dissemination of information or intentionally provide incorrect information on programs and services regarding reproductive health on the pretense of their religious scruples.

Section 23(b) and Section 5.24 of
the IRR. are not anathema to the
equal protection clause.

Section 23(b)65 penalizes any public officer specifically charged with the implementation of the provisions of R.A. No. 10354 who either: (1) restricts or prohibits the delivery of reproductive health care services; (2) forces, coerces or induces any person to use reproductive health care services; (3) refuses to allocate, approve or release any budget for reproductive health care services; (4) refuses to support reproductive health programs; or (5) does any act that hinders the full implementation of a reproductive health program.

On the other hand, the last paragraph of Section 5.24 of the IRR, provides that "[public] skilled health professionals such as provincial, city, or municipal health officers, chiefs of hospital, head nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the duty to implement the provisions of [R.A. No. 10354 and its IRR] cannot be considered as conscientious objectors."

The ponencia declared Section 23(b) and the last paragraph of Section 5.24 of the IRR as unconstitutional for being violative of the equal protection clause. The ponencia held that the "conscientious objection clause" under Section 23(a)(3) "should equally be protective of the religious belief of public health officers;" that the "protection accorded to other conscientious objectors should equally apply to all medical practitioners without distinction whether he belongs to the public or private sector."

I do not agree.

Equal protection simply provides that all persons or things similarly situated should be treated in a similar manner, both as to rights conferred and responsibilities imposed. The purpose of the equal protection clause is to secure every person within a State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a statute or by its improper execution through the state's duly constituted authorities.66

Persons or things ostensibly similarly situated may, nonetheless, be treated differently if there is a basis for valid classification.67 The legislature is allowed to classify the subjects of legislation; if the classification is reasonable, the law may operate only on some and not all of the people without violating the equal protection clause.68 Classification, to be valid, must (1) rest on substantial distinctions, (2) be germane to the purpose of the law, (3) not be limited to existing conditions only, and (4) apply equally to all members of the same class.69

Contrary to the ponencia's ratiocination, I find that a valid classification exists as would justify the withholding of the religious accommodation extended to health care service providers under Section 23(a)(3) from public officers who are specifically charged with the implementation of the provisions of R.A. No. 10354 and its IRR.

There is a substantial distinction as regards a conscientious objector under Section 23(a)(3), who may be a public or private health care service provider, and a public officer specifically charged with the duty to implement the provisions of R.A. No. 10354 and its IRR. The Constitution provides that a public office is a public trust.70 An important characteristic of a public office is that its creation and conferment involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive, or judicial, attaches, for the time being, to be exercised for the public benefit.71

That a public officer is specifically delegated with the a sovereign function of the government, i.e. the implementation of the provisions of RA 10354 and its IRR, is what sets him apart from a health care service provider under Section 23(a)(3). It should be clarified, however, that the religious accommodation extended to conscientious objectors under Section 23(a)(3) covers public health care service providers, who are likewise considered public officers.72 However, unlike the public officers under Section 23(b) and Section 5.24 of the IRR, public health care service providers under Section 23(a)(3) are not specifically charged with the implementation of the provisions of R.A. No. 10354 and its IRR.

Further, classifying a public officer charged with the implementation of the provisions of R.A. No. 10354 and its IRR apart from health care service providers under Section 23(a)(3) is not only germane, but also necessary to the purpose of the law. To reiterate, the primary objective of R.A. No. 10354 is to provide an increased access to information, programs, and services regarding reproductive health. Allowing the same religious accommodation extended under Section 23(a)(3) to public officers charged with the implementation of the law would seriously hamper the delivery of the various programs and services regarding reproductive health under R.A. No. 10354. In this regard, a public officer specifically charged with the implementation of the provisions of R.A. No. 10354 and its IRR is considered an agent of the State; he cannot thus be allowed to effectively frustrate the legitimate interest of the State in enacting R.A. No. 10354 by refusing to discharge the sovereign functions delegated to him to the detriment of the public.

Moreover, the duration of the said classification is not limited to existing conditions. Also, the prohibition imposed under Section 23(b) and Section 5.24 of the IRR applies equally to all public officers specifically charged with the implementation of the law. Accordingly, the equal protection claim against Sections 23 (b) and 5.24 of the IRR must evidently fail.

I agree though with the ponencia's declaration that "the freedom to believe is intrinsic in every individual and the protective robe that guarantees its free exercise is not taken off even if one acquires employment in the government." Indeed, it is undeniable that a man does not shed his spirituality once he assumes public office. However, it cannot equally be denied that the State, in the pursuit of its legitimate secular objectives, should not be unnecessarily impeded by the religious scruples of its agents. Pursuant to the principle of separation of Church and State, it is not only the State that is prohibited from in purely ecclesiastical affairs; the Church is likewise barred from meddling in purely secular matters.73

Thus, in People v. Veneracion,74 the Court, in resolving the question of whether a judge, after a finding that the accused had committed a crime punishable by the penalty of death, when the death penalty law was still in effect, has the discretion to impose the penalty of reclusion perpetua on account of his religious beliefs, stated that:

We are aware of the trial judge's misgivings in imposing the death sentence because of his religious convictions. While this Court sympathizes with his predicament, it is its bounden duty to emphasize that a court of law is no place for a protracted debate on the morality or propriety of the sentence, where the law itself provides for the sentence of death as a penalty in specific and well-defined instances. The discomfort faced by those forced by law to impose the death penalty is an ancient one, but it is a matter upon which judges have no choice. Courts are not concerned with the wisdom, efficacy or morality of laws. x x x.75

Reason demands that public officers who are specifically charged with the implementation of the provisions of R.A. No. 10354 and its IRR be classified differently from public and private health care service providers under Section 23(a)(3); they cannot be allowed to avail of the religious accommodation granted to conscientious objectors lest the lofty objectives of the law be disparaged. Any discomfort that would be caused to such public officers is but a mere incidental burden in the exercise of their religious belief, which is justified by the compelling state interest in the enactment of R.A. No. 10354.

Section 23(a)(2) punishes the
refusal to perform reproductive
health procedures due to lack of
spousal consent and/or parental
consent; it is not inimical to
freedom of religion.

Section 23(a)(2)76 penalizes any health care service provider who refuses to perform legal and medically-safe reproductive health procedures on the ground of lack of consent or authorization of either: (1) the spouse, in the case of married persons; or (2) the parents or person exercising parental authority, in the case of abused minors, where the parent or the person exercising parental authority is the respondent, accused, or convicted perpetrator. The ponencia struck down Section 23(a)(2) for being unconstitutional, pointing out that, "in the performance of reproductive health procedures, the religious freedom of health care service providers should be respected." The ponencia's conclusion stems from a misapprehension of the acts penalized under Section 23(a)(2); it does not, in any manner, invidiously interfere with the religious rights of health care service providers.

Section 23(a)(2) does not penalize the refusal of a health care service provider to perform reproductive health procedures per se. What is being penalized by the provision is the refusal of a health care service provider to perform such procedures on the ground of lack of spousal consent or parental consent in certain cases. Indeed, for reasons to be explained at length later, a health care service provider cannot avoid the performance of reproductive health procedure, in case of married persons, solely on the ground of lack of spousal consent since there would be no justifiable reason for such refusal.

Likewise, it is quite absurd to expect that the parent of or one exercising parental authority over an abused minor would give consent for the latter's reproductive health procedure if he/she is the one responsible for the abuse. Thus, Section 23(a)(2) dispenses with the requirement of parental authority from the abusive parent or person exercising parental authority. In such case, a health care service provider cannot refuse the performance of reproductive health procedure on the abused minor solely on the ground of lack of parental consent.

Nevertheless, even in cases where the individual seeking reproductive health procedure is married or is an abused minor, a health care service provider may validly refuse to perform such procedure if the objection thereto is based on his/her ethical or religious beliefs. Section 23(a)(2) must be read in conjunction with Section 23(a)(3), which provides for religious accommodation of conscientious objectors. However, in such cases, the health care service provider would still have the duty to immediately refer the married individual or the abused minor to another health care service provider within the same facility or one, which is conveniently accessible.

Section 23(a)(2)(i) merely upholds
the primacy of an individual's
choice on matters affecting his/her
health; it does not intrude into the
right to marital privacy.

Essentially, Section 23(a)(2)(i)77 provides that a married individual may undergo a reproductive health procedure sans the consent/authorization of his/her spouse; that any health care service provider who would obstinately refuse to perform such procedure on a married individual on the pretext of the lack of spousal consent would be penalized accordingly.

The ponencia declared Section 23(a)(2)(i) as being contrary to Section 3, Article XV of the Constitution, which requires the State to defend the "right of the spouses to found a family," thus unduly infringing on the right to marital privacy. The ponencia explained that the said provision "refers to reproductive health procedures like tubal ligation and vasectomy which, by their very nature, require mutual consent and decision between the husband and wife as they affect issues intimately related to the founding of the family." The ponencia pointed out that decision-making concerning reproductive health procedure "falls within the protected zone of marital privacy" from which State intrusion is proscribed. Thus, the ponencia concluded, dispensing with the spousal consent is "disruptive of family unity" and "a marked departure from the policy of the State to protect marriage as an inviolable social institution."

It is conceded that intimate relations between husband and wife fall within the right of privacy formed by emanations of the various guarantees in the Bill of Rights, to which State intrusion is proscribed.78 However, I do not agree that upholding a married individual's choice to submit to reproductive health procedure despite the absence of the consent or authorization of his/her spouse would be disruptive of the family.

The ponencia harps on the right to privacy that inheres in marital relationships. Yet the marital couple is not an independent entity, with a mind and heart of its own, but an association of two individuals, each with a separate intellectual and emotional makeup.79 While the law affirms that the right of privacy inheres in marital relationships, it likewise recognizes that a spouse, as an individual per se, equally has personal autonomy and privacy rights apart from the right to marital privacy guaranteed by the Constitution. A spouse's personal autonomy and privacy rights, as an individual per se, among others, necessitates that his/her decision on matters affecting his/her health, including reproductive health, be respected and given preference.

At the heart of Section 23(a)(2)(i) is the fundamental liberty of an individual to personal autonomy, i.e., to decide on matters affecting his/her reproductive health. Section 23(a)(2)(i), contrary to the ponencia's insinuation, does not hinder a married individual from conferring with his/her spouse on his/her intended reproductive health procedure. There is nothing in the said provision, which prevents a husband/wife from obtaining the consent/authorization for an intended reproductive health procedure. Nevertheless, the objection of the other spouse thereto, as common sense would suggest, should not prevent a married individual from proceeding with the reproductive health procedure since it is his/her bodily integrity that is at stake.

In this regard, the ruling of the US Supreme Court Planned Parenthood v. Danforth80 is instructive. Danforth involves a Missouri abortion statute, which, inter alia, required the written consent of the husband before a woman may be allowed to submit to an abortion81 during the first 12 weeks of pregnancy. The US Supreme Court declared the spousal consent requirement unconstitutional for unduly intruding into the right to privacy of the woman. Thus:

We now hold that the State may not constitutionally require the consent of the spouse, as is specified under § 3(3) of the Missouri Act, as a condition for abortion during the first 12 weeks of pregnancy. We thus agree with the dissenting judge in the present case, and with the courts whose decisions are cited above, that the State cannot delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.

x x x Clearly, since the State cannot regulate or proscribe abortion during the first stage, when the physician and his patient make that decision, the State cannot delegate authority to any particular person, even the spouse, to prevent abortion during that same period.

We are not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife's pregnancy and in the growth and development of the fetus she is carrying. Neither has this Court failed to appreciate the importance of the marital relationship in our society. x x x Moreover, we recognize that the decision whether to undergo or to forgo an abortion may have profound effects on the future of any marriage, effects that are both physical and mental, and possibly deleterious. Notwithstanding these factors, we cannot hold that the State has the constitutional authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy when the State itself lacks that right. x x x.

It seems manifest that, ideally, the decision to terminate a pregnancy should be one concurred in by both the wife and her husband. No marriage may be viewed as harmonious or successful if the marriage partners are fundamentally divided on so important and vital an issue. But it is difficult to believe that the goal of fostering mutuality and trust in a marriage, and of strengthening the marital relationship and the marriage institution, will be achieved by giving the husband a veto power exercisable for any reason whatsoever or for no reason at all. Even if the State had the ability to delegate to the husband a power it itself could not exercise, it is not at all likely that such action would further, as the District Court majority phrased it, the "interest of the state in protecting the mutuality of decisions vital to the marriage relationship."

x x x x

We recognize, of course, that, when a woman, with the approval of her physician but without the approval of her husband, decides to terminate her pregnancy, it could be said that she is acting unilaterally. The obvious fact is that, when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor. x x x. (Emphases ours)82

It is indeed ideal that the decision whether to submit to reproductive health procedure be a joint undertaking of the spouses, especially on such a vital and sensitive matter. It is inevitable, however, for cases to abound wherein a husband/wife would object to the intended procedure of his/her spouse. In such cases, the right to reproductive health of a spouse would be rendered effectively inutile. I do not see how fostering such stalemate, which can hardly be considered as a harmonious and blissful marital relationship, could "protect the marriage as an inviolable social institution."

Thus, the law, in case of disagreement, recognizes that the decision of the spouse undergoing the reproductive health procedure should prevail. In so declaring, Section 23(a)(2)(i) does not invidiously interfere with the privacy rights of the spouses. In dispensing with the spousal consent/authorization in case of disagreement, the law is not declaring a substantive right for the first time; even in the absence of such declaration, the decision of the spouse undergoing the reproductive health procedure would still prevail. Section 23(a)(2)(i) is but a mere recognition and affirmation of a married individual's constitutionally guaranteed personal autonomy and his/her right to reproductive health.

Requiring the rendition of pro bono
reproductive health services to
indigent women for PhilHealth
accreditation does not infringe on
religious freedom.

Section 17 encourages private and non-government reproductive health care service providers "to provide at least forty-eight (48) hours annually of reproductive health services, ranging from providing information and education to rendering medical services, free of charge to indigent and low-income patients." It further mandated that the pro bona reproductive health services shall be included as a prerequisite in the accreditation under the PhilHealth.

The ponencia declared that Section 17, contrary to the petitioners' stance, does not amount to involuntary servitude; that it merely encourages reproductive health care service providers to render pro bona services. The ponencia likewise held that requiring the rendition of said pro bona services for PhilHealth accreditation is not an unreasonable burden, but a necessary incentive imposed by Congress in the furtherance of a legitimate State interest. Nevertheless, the ponencia declared Section 17 unconstitutional insofar as it affects conscientious objectors in securing PhilHealth accreditation; that conscientious objectors are exempt from rendition of reproductive health services, pro bona or otherwise.

While I agree with the ponencia that Section 17 does not amount to involuntary servitude and that requiring the rendition of pro bona reproductive health services for PhilHealth accreditation is not an unreasonable burden to health care service providers, I disagree that Section 17 is unconstitutional as applied to conscientious objectors.

As pointed out earlier, it is conceded that health care service providers may not be compelled to provide certain information or service regarding reproductive health if it would be anathema to his/her religious convictions. Specifically, under Section 17, a health care service provider may not be denied the opportunity to be accredited under R.A. No. 7875, otherwise known as the National Health Insurance Act of 1995, as amended by R.A. No. 10606, for his/her refusal to render pro bono reproductive health services that are contrary to his/her religious beliefs.

However, that a health care service provider has religious objections to certain reproductive health care services does not mean that he/she is already exempted from the requirement under Section 17 for PhilHealth accreditation. The requirement under Section 17 is stated in general terms and is religion-neutral; it merely states that health care service providers, as a condition for PhilHealth accreditation, must render pro bono reproductive health service. The phrase "reproductive health care service" is quite expansive and is not limited only to those services, which may be deemed objectionable based on religious beliefs.

Reproductive health care includes: (1) family planning information and services; (2) maternal, infant and child health and nutrition, including breastfeeding; (3) proscription of abortion and management of abortion complications; (4) adolescent and youth reproductive health guidance and counseling; (5) prevention, treatment, and management of reproductive tract infections, HIV and AIDS, and other sexually transmittable infections; (6) elimination of violence against women and children, and other forms of sexual and gender-based violence; (7) education and counseling on sexuality and reproductive health; (8) treatment of breast and reproductive tract cancers, and other gynecological conditions and disorders; (9) male responsibility and involvement, and men's reproductive health; (10) prevention, treatment, and management of infertility and sexual dysfunction; (11) reproductive health education for adolescents; and (12) mental health aspect of reproductive health care.83

Thus, a health care service provider, his/her religious objections to certain reproductive health care services aside, may still render pro bono reproductive health care service, as a prerequisite for PhilHealth accreditation, by providing information or medical services, for instance, on treatment of breast and reproductive tract cancers, and other gynecological conditions and disorders or on maternal, infant and child health and nutrition.

ACCORDINGLY, I vote to DECLARE UNCONSTITUTIONAL only Section 7 of Republic Act No. 10354, insofar as it dispenses with the requirement of parental consent for minors who are already parents or have had a miscarriage, for being contrary to Section 12, Article II of the Constitution.

BIENVENIDO L. REYES
Associate Justice


Footnotes

1 Section 9. The Philippine National Drug Formulary System and Family Planning Supplies. - The National Drug Formulary shall include hormonal contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family planning products and supplies. The Philippine National Drug Formulary System (PNDFS) shall be observed in selecting drugs including family planning supplies that will be included or removed from the Essential Drugs List (EDL) in accordance with existing practice and in consultation with reputable medical associations in the Philippines. For the purpose of this Act, any product or supply included or to be included in the EDL must have a certification from the FDA that said product and supply is made available on the condition that it is not to be used as an abortifacient.

These products and supplies shall also be included in the regular purchase of essential medicines and supplies of all national hospitals: Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency contraceptive pills, postcoital pills, abortifacients that will be used for such purpose and their other forms or equivalent.

2 Section 15. Certificate of Compliance. - No marriage license shall be issued by the Local Civil Registrar unless the applicants present a Certificate of Compliance issued for free by the local Family Planning Office certifying that they had duly received adequate instructions and information on responsible parenthood, family planning, breastfeeding and infant nutrition.

3 Section 17. Pro Bono Services for In digent Women. - Private and nongovernment reproductive healthcare service providers including, but not limited to, gynecologists and obstetricians, are encouraged to provide at least forty-eight (48) hours annually of reproductive health services, ranging from providing information and education to rendering medical services, free of charge to indigent and low-income patients as identified through the NHTS-PR and other government measures of identifying marginalization, especially to pregnant adolescents. The forty-eight (48) hours annual pro bono services shall be included as a prerequisite in the accreditation under the PhilHealth.

4 Section 5. Hiring of Skilled Health Professionals for Maternal Health Care and Skilled Birth Attendance. - The LGUs shall endeavor to hire an adequate number of nurses, midwives and other skilled health professionals for maternal health care and skilled birth attendance to achieve an ideal skilled health professional-to-patient ratio taking into consideration DOH targets: Provided, That people in geographically isolated or highly populated and depressed areas shall be provided the same level of access to health care: Provided, further, That the national government shall provide additional and necessary funding and other necessary assistance for the effective implementation of this provision.

x x x x

5 Section 6. Health Care Facilities. - Each LGU, upon its determination of the necessity based on well-supported data provided by its local health office shall endeavor to establish or upgrade hospitals and facilities with adequate and qualified personnel, equipment and supplies to be able to provide emergency obstetric and newborn care: Provided, That people in geographically isolated or highly populated and depressed areas shall have the same level of access and shall not be neglected by providing other means such as home visits or mobile health care clinics as needed: Provided, further, That the national government shall provide additional and necessary funding and other necessary assistance for the effective implementation of this provision.

6 Section 16. Capacity Building of Barangay Health Workers (BHWs). - The DOH shall be responsible for disseminating information and providing training programs to the LGUs. The LGUs, with the technical assistance of the DOH, shall be responsible for the training of BHWs and other barangay volunteers on the promotion of reproductive health. The DOH shall provide the LGUs with medical supplies and equipment needed by BHWs to carry out their functions effectively: Provided, further, That the national government shall provide additional and necessary funding and other necessary assistance for the effective implementation of this provision including the possible provision of additional honoraria for BHWs.

7 Executive Order No. 209.

8 FAMILY CODE, Article 220(4) and (6).

9 FAMILY CODE, Article 228(3).

10 FAMILY CODE, Article 234, as amended by Republic Act No. 6809.

11 Prince v. Massachusetts, 321 U.S. 158, 166 (1944).

12 Parham v. J.R., 442 U.S. 584, 604 (1977).

13 Section 14. Age- and Development-Appropriate Reproductive Health Education. - The State shall provide age- and development-appropriate reproductive health education to adolescents which shall be taught by adequately trained teachers informal and nonformal educational system and integrated in relevant subjects such as, but not limited to, values formation; knowledge and skills in self-protection against discrimination; sexual abuse and violence against women and children and other forms of gender based violence and teen pregnancy; physical, social and emotional changes in adolescents; women's rights and children's rights; responsible teenage behavior; gender and development; and responsible parenthood: Provided, That flexibility in the formulation and adoption of appropriate course content, scope and methodology in each educational level or group shall be allowed only after consultations with parents-teachers-community associations, school officials and other interest groups. The Department of Education (DepED) shall formulate a curriculum which shall be used by public schools and may be adopted by private schools.

14 Section 4(b) of R.A. No. 10354 defines the term "adolescent" as referring to "young people between the ages often (10) to nineteen (19) years who are in transition from childhood to adulthood."

15 Petition (G.R. No. 205478), Echavez, M.D., et al. v. Ochoa, Jr., et al., pp. 13-14.

16 Mercado v. AMA Computer College-Paranaque City, Inc., G.R. No. 183572, April 13, 2010, 618 SCRA 218, 236; Miriam College Foundation, Inc. v. Court of Appeals, 401 Phil. 431, 455-456 (2000).

17 Senate Journal, Session No. 25, October 15, 2012, Fifteenth Congress, p. 565.

18 Sponsorship speech of Senator Miriam Defensor-Santiago on Senate Bill 2865, the senate version of R.A. No. 10354, citing Young Adolescent Fertility Survey 2002 by UP Population Institute; http://miriam.com.ph/newsblog/2011/08/17/the-reproductive-health-act-sponsorship-speech-parts-2-and-3/, last accessed on March 24, 2014.

19 Id.

20 Id.

21 CONSTITUTION, Article II, Section 12.

22 CONSTITUTION, Article XIV, Section 2 (2).

23 381 U.S. 479 (1968).

24 Id.

25 See Gamboa v. Chan, G.R. No. 193636, July 24, 2012, 677 SCRA 385, 399; Opie v. Torres, 354 Phil. 948 (1998); Morfe v. Mutuc, et al., 130 Phil. 415 (1968).

26 Petition (G.R. No. 205478), Echavez, MD., et al. v. Ochoa, Jr., et al., p. 4.

27 478 P.2d 314 (1970).

28 393 U.S. 97 (1968).

29 Id.

30 See Edwards v. Aguillard, 482 U.S. 578 (1987).

31 See also Smith v. Ricci, 89 N.J. 514 (1982) where the Supreme Court of New Jersey upheld the State's "family life education program" in the public elementary and secondary curricul a over objections that it infringes on the religious freedom of the parents.

32 CONSTITUTION, Article III, Section 5.

33 See Corwin, The Constitution and What It Means Today, 14th ed., p. 97, citing Cantwell v. Connecticut, 310 U.S. 296 at 303 (1940).

34 Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 2003 ed., p. 314.

35 See Austria v. National Labor Relations Commission, 371 Phil. 340, 353 (1999) ; Cruz, Constitutional Law, 2000 ed., pp. 178-179.

36 Cantwell v. Connecticut, 310 U.S. 296 (1940).

37 See Reynolds v. United States, 98 U.S. 145 (1879); Prince v. Massachusetts, 321 U.S. 158 (1944); Employment Division v. Smith, 494 U.S. 872 (1990).

38 Cruz, Constitutional Law, 2000 ed., p. 187.

39 Id.

40 455 Phil. 411 (2003).

41 Id. at 576.

42 Id. at 522-523.

43 Id. at 577-578.

44 Braunfeldv. Brown, 366 U.S. 599 (1961); Sherbert v. Verner, 374 U.S. 398 (1963).

45Article 25 of the United Nations' Universal Declaration of Human Rights states that:

Article 25.

(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

46 CONSTITUTION, Article II, Section 15.

47 CONSTITUTION, Article XIII, Section 11.

48 R.A. No. 10354, Section 3(d).

49 R.A. No. 10354, Section 3(c).

50 R.A. No. 10354, Section 3(e).

51 Senate Journal, Session No. 18, September 13, 2011, Fifteenth Congress, p. 292.

52 Estrada v. Escritor, supra note 40 at 531.

53 Comment-in-Intervention, The Filipino Catholic Voices for Reproductive Health, Inc., pp. 36-37.

54 Id. at 37.

55 Sponsorship speech of Senator Miriam Defensor-Santiago on Senate Bill 2865, the senate version of R.A. No. 10354; http://miriam.corn.ph/newsblog/2011/08/17/the-reproductive-health-act-sponsorship-speech-parts-2-and-3/, last accessed on March 24, 2014.

56 Sponsorship speech of Senator Pia S. Cayetano on Senate Bill 2865, the senate version of R.A. No. 10354; http://senatorpiacayetano.com/?p=412, last accessed on March 24, 2014.

57 Unintended Pregnancy and Unsafe Abortion in the Philippines: Context and Consequences; http://www.guttmacher.org!pubs/IB-unintended-pregnancy-philippines.html, last accessed on March 24, 2014.

58 Id.

59 Employment Division v. Smith, supra note 37.

60 Id.

61 SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(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;

x x x x

62 Aquino v. Quezon City, 529 Phil. 486, 498 (2006).

63 Senate Journal, Session No. 27, October 5, 2011, Fifteenth Congress, p. 433.

64 Tulfo v. People, G.R. No. 161032, September 16, 2008, 565 SCRA 283, 305.

65 Section 23. Prohibited Acts. - The following acts are prohibited:

x x x x

(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, or 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;

x x x x

66 Bureau of Customs Employees Association (BOCEA) v. Teves, G.R. No. 181704, December 6, 2011, 661 SCRA 589, 609.

67 Nachura, Outline Reviewer in Political Law, 2006 ed., p. 95.

68 Epperson v. Arkansas, supra note 28, at 126.

69 Tiu v. Court of Appeals, 361 Phil. 229, 242 (1999).

70 CONSTITUTION, Article XI, Section 1.

71 See Cruz, The Law on Public Officers, 2007 ed., p. 3.

72 Section 5.24 of the IRR recognizes that public officers, i.e., public skilled health professionals may be conscientious objectors, albeit after complying with certain requisites, viz:

Section 5.24. Public Skilled Health Professional as a Conscientious Objector. In order to legally refuse to deliver reproductive health care services or information as a conscientious objector, a public skilled health professional shall comply with the following requirements:

a) The skilled health professional shall explain to the client the limited range of services he/she can provide;

b) Extraordinary diligence shall be exerted to refer the client seeking care to another skilled health professional or volunteer willing and capable of delivering the desired reproductive health care service within the same facility;

c) If within the same health facility, there is no other skilled health professional or volunteer willing and capable of delivering the desired reproductive health care service, the conscientious objector shall refer the client to another specific health facility or provider that is conveniently accessible in consideration of the client's travel arrangements and financial capacity;

d) Written documentation of compliance with the preceding requirements; and

e) Other requirements as determined by the DOH.

In the event where the public skilled health professional cannot comply with all of the above requirements, he or she shall deliver the client's desired reproductive health care service or information without further delay.

73 Cruz, Constitutional Law, 2000 ed., p. 179.

74 319 Phil. 364 (1995).

75 Id. at 373.

76 SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

x x x x

(2) Refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the ground of lack of consent or authorization of the following persons in the following instances:

(i) Spousal consent in case of married persons: Provided, That in case of disagreement, the decision of the one undergoing the procedure shall prevail; and

(ii) Parental consent or that of the person exercising parental authority in the case of abused minors, where the parent or the person exercising parental authority is the respondent, accused or convicted perpetrator as certified by the proper prosecutorial office of the court. In the case of minors, the written consent of parents or legal guardian or, in their absence, persons exercising parental authority or next-of-kin shall be required only in elective surgical procedures and in no case shall consent be required in emergency or serious cases as defined in Republic Act No. 8344; and

x x x x

77 Id.

78 See Griswold v. Connecticut, supra note 23.

79 Eisenstadt v. Baird, 405 U.S. 438 (1972).

80 428 U.S. 52 (1976); see also Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

81 In the US, Abortion, pursuant to Roe v. Wade, (410 U.S. 113 [1973]) is a recognized right of the woman before a fetus is viable outside the womb, which is generally during the first trimester of the pregnancy.

82 Id.

83 R.A. No. 10354, Section 4(q).


The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING OPINION

PERLAS-BERNABE, J.:

There never was a law yet made, I conceive, that hit the taste exactly of every man, or every part of the community; of course, if this be a reason for opposition, no law can be executed at all without force, and every man or set of men will in that case cut and carve for themselves; the consequences of which must be deprecated by all classes of men, who are friends to order, and to the peace and happiness of the country.

- George Washington, in a Letter to Major-General Daniel Morgan1

Perhaps the most functional effect of law in a representative democratic society2 like ours is its ability to curb the gridlocking tendencies of divergence. Social order dictates that the law shall be binding and obligatory against all, notwithstanding our differences in belief and opinion. The solution to social disagreement ought to be achieved only through legislative process, and not through this Court. Time and again, it has been enunciated that "[t]he judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government."3 Consequently, as an overriding principle of judicial review, courts are bound to adopt an attitude of liberality in favor of sustaining a statute. Unless its provisions clearly and unequivocally, and not merely doubtfully, breach the Constitution, it must not be stricken down.4 If any reasonable basis may be conceived which supports the statute, it will be upheld, and the challenger must negate all possible bases.5

With these principles in mind, I submit that Republic Act No. 10354,6 otherwise known as "The Responsible Parenthood and Reproductive Health Act of 2012" (RH Law) should be declared constitutional. I therefore join the ponencia in upholding the constitutionality of several assailed provisions7 of the RH Law and invalidating Sections 3.0l(a)8 and 3.01(j)9 of its Implementing Rules and Regulations (RH-IRR), but dissent in striking down Sections 7, 23(a)(l), 23(a)(2), 23(a)(2)(i), 23(a)(3), 23(b), and 17 thereof, as well as its counterpart RH-IRR provisions, with the exception of Section 5.24 thereof which I find invalid fo"r being ultra vires. I deem it unnecessary to expound on the reasons for my concurrence; the ponencia and my colleagues' opinions on that front already reflect the wealth of argument in favor of sustaining several of the law's provisions,10 to which I find no impetus to add more.

Also, I, similar to the views shared by Justice Antonio T. Carpio11 and Justice Marvic Mario Victor F. Leonen,12 further dissent insofar as the ponencia seeks to foist a judicial determination on the beginning of life. Absent a proper presentation of established scientific facts which becomes more realizable today due to the advances in medicine and technology, the ponencia, by mere reference to the exchanges of the Framers during the constitutional deliberations, treads on dangerous territory by making a final adjudication on this issue. Section 12,13 Article II of the 1987 Philippine Constitution is not a definitive guidepost to the question on when does life begin, but rather a declaration of the State's policy to equally protect the life of the mother and the life of the unborn from conception, to which the objectives and provisions of the RH Law, to my mind, remain consistent and faithful to.14

That being said, I proceed to briefly explain the reasons behind my other points of dissent.

I. The Duty to Refer, Perform, and Inform
vis-a-vis Conscientious Objection.

Utilizing the parameters of strict scrutiny in accord with the doctrine of benevolent neutrality, the ponencia finds Section 715 of the RH Law and its corresponding provision in the RH-IRR upconstitutional insofar as they require private health facilities and non-maternity specialty hospitals and hospitals owned and operated by a religious group to immediately refer patients not in an emergency or life-threatening case, as defined under the RH Law, to another health facility which is conveniently accessible.

The ponencia further relates16 Section 7 to Sections 23(a)(1)17 and 23(a)(2)18 of the RH Law, as well as their counterpart RH-IRR provisions, particularly Section 5.24 thereof, insofar as they, as to the first provision stated, punish any health care service provider who fails and or refuses to disseminate information regarding programs and services on reproductive health (supposedly) regardless of his or her religious beliefs, and insofar as they, as to the second provision stated, punish any health care service provider who refuses to perform reproductive health procedures on account of their religious beliefs. Stating jurisprudential precepts on the Free Exercise Clause, the ponencia applies its religious freedom take on Section 7 to Sections 23(a)(1) and 23(a)(2) of the RH.Law, "considering that in the dissemination of information regarding programs and services and in the performance of reproductive health procedures the religious freedom of health care service providers should be respected."19

Equally treated as unconstitutional is Section 23(a)(3)20 and its corresponding provision in the RH-IRR, particularly Section 5.2421 thereof, insofar as they punish any health care 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 health care service provider within the same facility or one which is conveniently accessible regardless of his or her religious beliefs.

I disagree.

Under the benevolent-neutrality theory utilized by the ponencia in support of its position, religious freedom is seen as a substantive right and not merely a privilege against discriminatory legislation. With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain circumstances. As case law instructs, it is the strict scrutiny-compelling state interest test which is most in line with the benevolent neutrality-accommodation approach.22 This method of analysis operates under three (3) parameters, namely: (a) the sincerity of the religious belief which is burdened by a statute or a government action; (b) the existence of a compelling state interest which justifies such burden on the free exercise of religion; and (c) in the furtherance of its legitimate state objective, the state has employed the least intrusive means to such exercise of religious beliefs.

There is no striking objection to the concurrence of the first parameter given that the burden of proving the same lies on the person asserting a religious freedom violation, as petitioners in these consolidated cases.

As to the second parameter, the ponencia misplaces its conclusion that there exists no compelling state interest to justify the burden of the conscientious objector's duty to refer on statistical data showing that the maternal mortality rate had actually dropped even before the enactment of the RH Law.23 What seems to be lost in the equation is the substantive value advanced by the legislative policy, namely, the right to health, an inextricable adjunct of one's right to life, which is sought to be protected by increasing the public's awareness of reproductive health options. Notwithstanding the premise that maternal deaths have substantially decreased during the last two (2) decades, it cannot be seriously doubted that the State has a compelling interest to protect its citizen's right to health and life. The denial (or the threat of denial) of these rights even only against one, to my mind, is enough to conclude that the second parameter of scrutiny has been passed.

With respect to the third parameter, the ponencia submits that the State has not used the least intrusive means in advancing its interest by imposing the duty to refer on health care service providers who are conscientious objectors since they cannot be compelled, "in conscience, (to) do indirectly what they cannot do directly."24 But again, what is apparently discounted is the inherent professional responsibility of health care service providers to apprise patients of their available options concerning reproductive health. Health care service providers cannot - as they should not - absolutely keep mum on objective data on reproductive health, lest they deprive their patients of sound professional advice or deny them the right to make informed choices regarding their own reproductive health. Religious beliefs may exempt the conscientious objector from directly performing the act objected to, but the least intrusive means, in this scenario, is to impose upon them, at the very least, the duty to refer the patient to another health care service provider within the same facility or one which is conveniently accessible to the end of realizing the patient's health choice. After all, nothing in the assailed provisions on the duty to refer prevents the conscientious objector from sharing his or her religious beliefs on the reproductive health method the patient is informed of. The conscientious objector can preach on his or her religious beliefs notwithstanding the secular command of sharing objective information on reproductive health methods or referring the patient to another health care service provider who may possibly subscribe to a different belief. I also see no burden on the conscience through what the ponencia dubs as indirect complicity. I believe that when the health care service provider refers the patient to another, the former, in fact, manifests his or her conviction against the objected method. Thus, the argument can be made that the act of referral is in itself the objection. Inviolability of conscience should not be used as a carte blanche excuse to escape the strong arm of the law and its legitimate objectives. Our liberties may flourish within reasonable limitations.

Neither do I find Section 23(a)(1) of the RH Law, as well as its RH-IRR provision counterpart, invidious of religious freedom, particularly, of the Free Exercise Clause, for the reason that information dissemination on health advice, including that on reproductive health, constitutes, as mentioned, an inherent professional responsibility of health care service providers to their patients. Informing the patient of his or her health options does not, in any way, preclude the conscientious objector from, as also earlier stated, sharing his or her religious beliefs on the matter. After disseminating the information, and when the -patient affirmatively decides to take the reproductive health procedure, then the conscientious objector may opt not to perform such procedure himself or herself and, instead, refer the patient to another health care service provider based only on the qualification of accessibility; nothing in the law requires the conscientious objector to refer the patient to a health care service provider capable and willing to perform the reproductive health procedure objected to.

In the same light, I find Section 23(a)(2) clear from any religious freedom infraction for the reason that conscientious objectors are given the choice not to perform reproductive health procedures on account of their religious beliefs, albeit they are dutifully required to refer their patients to another health care service provider within the same facility or one which is conveniently accessible to the end of realizing the patient's health choice. The same reasons stated in my previous discussions equally obtain in this respect. Accordingly, I submit that the RH Law and the RH-IRR provisions governing the conscientious objector's duty to refer and its correlative provisions on information dissemination and performance be upheld as constitutional.

II. Section 23(b) of the RH Law in relation to
Section 5.24 of the RH-IRR vis-a-vis
the Conscientious Objector Exception.

Section 23(b) of the RH Law provides a general proscription on non-performance, restriction, and/or hindrance of delivering reproductive health care services against a public officer specifically charged with the implementation of the RH Law, viz.: SEC. 23. Prohibited Acts. - The following acts are prohibited: x x x x

(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, or 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;

x x x x

Nothing in the provision's text or any provision of the entire RH Law negates the availability of the conscientious objector exception to the public officers above-described.

This notwithstanding, Section 5.24 of the RH-IRR states that skilled health professionals such as provincial, city, or municipal health officers, chiefs of hospital, head nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the duty to implement the provisions of the RH Law cannot be deemed as conscientious objectors, viz.:

SEC. 5.24 Public Skilled Health Professional as a Conscientious Objector. In order to legally refuse to deliver reproductive health care services or information as a conscientious objector, a public skilled health professional shall comply with the following requirements:

a) The skilled health professional shall explain to the client the limited range of services he/she can provide;

b) Extraordinary diligence shall be exerted to refer the client seeking care to another skilled health professional or volunteer willing and capable of delivering the desired reproductive health care service within the same facility;

c) If within the same health facility, there is no other skilled health professional or volunteer willing and capable of delivering the desired reproductive health care service, the conscientious objector shall refer the client to another specific health facility or provider that is conveniently accessible in consideration of the client's travel arrangements and financial capacity;

d) Written documentation of compliance with the preceding requirements; and

e) Other requirements as determined by the DOH.

In the event where the public skilled health professional cannot comply with all of the above requirements, he or she shall deliver the client's desired reproductive health care service or information without further delay.

Provided, That skilled health professionals such as provincial, city, or municipal health officers, chiefs of hospital, head nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the duty to implement the provisions of the RPRH Act and these Rules, cannot be considered as conscientious objectors.

Within sixty (60) days from the effectivity of these rules, the DOH shall develop guidelines for the implementation of this provision. (Emphasis supplied)

The ponencia declared Section. 5.24 of the RH-IRR as unconstitutional for being discriminatory and violative of the equal protection clause. It held that there is no perceptible distinction between skilled health professionals who by virtue of their office are specifically charged with the duty to implement the provisions of the RH Law and other public health care service providers so as to preclude the former from availing of the conscientious objector exemption, considering that they are also accorded the right to the free exercise of religion. It opined that "the freedom to believe is intrinsic in every individual and the protective robe that guarantees its free exercise is not taken off even if one acquires employment in the government."25

I concur with the ponencia only in striking down Section 5 .24 of the RH-IRR but dissent against its undertaking of an equal protection analysis.

As I see it, the problem lies only with Section 5.24 of the RH-IRR going beyond26 what is provided for in the RH Law. Section 5.24 of the RH-IRR is an erroneous construction of Section 23(b) of the RH Law which must stand as constitutional. As earlier mentioned, the latter provision only states general prohibitions to public officers specifically charged with the implementation of the RH Law; nothing in its text negates the availability of the conscientious objector exception to them, or to "skilled health professionals such as provincial, city, or municipal health officers, chiefs of hospital, head nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the duty to implement the provisions of the [RH Law and the RH-IRR]." Section 23(b) of the RH Law must be construed in the context of its surrounding provisions which afford the conscientious objector the ability to opt-out from performing reproductive health practices on account of his or her religious beliefs. As the aforementioned RH-IRR provision would be stricken down as invalid on ultra vires grounds, I believe that an equal protection analysis is unnecessary.

III. Minority Exceptions to Parental Consent.

The ponencia also holds Section 727 and its corresponding RH-IRR provision unconstitutional insofar as they allow minor-parents or minors who have suffered a miscarriage access to modem methods of family planning without written consent from their parents or guardian/s. The ponencia deemed this as a premature severing of the parents' parental authority over their children even if she is not yet emancipated, and thus, declared unconstitutional as well.28

Again, I disagree.

The provision only states that minor children who are already parents or have had a miscarriage are entitled to information and access to modem day methods of family planning without the. need of their parents' consent. There is nothing in the RH Law which forecloses the exercise of parental authority. Parents may still determine if modem day family planning methods are beneficial to the physical well-being of their child, who is a minor-parent or a minor who has suffered a miscarriage. The RH Law provision should be read complementarily with Articles 209 and 220 of the Family Code of the Philippines29 which state that:

Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.

Art. 220. The parents and those exercising parental authority shall have with the respect to their unemancipated children or wards the following rights and duties:

x x x x

(4) To furnish them with good and whole~ome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals ; (Emphases and underscoring supplied)

The RH Law provision on parental consent does not amount to a negation or even a dilution of the parent's right to care for and rear their minor child who is already a parent or has undergone an abortion towards the end of developing her physical character and well-being. Neither does the provision inhibit the minor's parents from preventing their child from acquiring detrimental health habits. Recognizing that these minors have distinct reproductive health needs due to their existing situation, the law simply does away with the necessity of presenting to reproductive health care service providers prior parental consent before they are given information and access to modem day methods of family planning. In a predominantly conservative culture like ours, wherein the thought that pre-marital sex is taboo pervades, a minor who is already a parent or one who has undergone a previous miscarriage is, more often than not, subject to some kind of social stigma. Said minor, given her predisposition when viewed against social perception, may find it difficult, or rather uncomfortable, to approach her parents on the sensitive subject of reproductive health, and, much more, to procure their consent. The RH Law does away with this complication and makes modem methods of family planning easily accessible to the minor, all in the interest of her health and physical well-being. On all accounts, nothing stops the minor's parents to, in the exercise of their parental authority, intervene, having in mind the best interest of their child insofar as her health and physical well-being are concerned.

Besides, in addition to its limited availability to a distinct class of minors, i.e., minor children who are already parents or have had a miscarriage, the provision only dispenses with the need for prior parental consent in reference to mere information dissemination and access to modem day methods of family planning. When the minor elects to undergo the required surgical procedure, the law makes it clear that the need for prior parental consent is preserved, but, understandably, in no case shall consent be required in emergency or serious cases. Section 23(a)(2)(ii) of the RH Law states this rule:

SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

x x x x

(2) Refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the ground of lack of consent or authorization of the following persons in the following instances:

x x x x

(ii) Parental consent or that of the person exercising parental authority in the case of abused minors, where the parent or the person exercising parental authority is the respondent, accused or convicted perpetrator as certified by the proper prosecutorial office of the court. ln the case of minors, the written consent of parents or legal guardian or, in their absence, persons exercising parental aut hority or next-of-kin shall be required only in elective surgical procedures and in no case shall consent be required in emergency or serious cases as defined in Republic Act No. 8344; and

x x x x (Emphasis supplied)

IV. Spousal Consent.

Section 23(a)(2)(i)30 of the RH Law provides that spousal consent is needed before a married person may undergo certain reproductive health procedures, such as vasectomy for males and tubal ligation for females, provided, that in case of disagreement, it is the decision of the one undergoing the procedure which shall prevail.

In declaring this provision as unconstitutional, the ponencia explained that since a decision to undergo a reproductive health procedure principally affects the right to found a family, such decision should not be left solely to the one undergoing the procedure, but rather, should be made and shared by both spouses as one cohesive unit.31

I would, once more, have to disagree with the ponencia.

There is nothing in the RH Law that would completely alienate the other spouse in the decision-making process nor obviate any real dialogue between them. This is a purely private affair left for the spouses to experience for themselves. Ideally and as much as possible, spouses should, as the ponencia puts it, act as "one cohesive unit" in the decision-making process in undergoing a reproductive health procedure. However, when there is a complete disagreement between the spouses, the assailed RH Law provision provides, by way of exception, a deadlock-mechanism whereby the decision of the one undergoing the procedure shall prevail if only to prevent any unsettling conflict between the married couple on the issue. To add, the assailed provision, in my view, also provides a practical solution to situations of estrangement which complicates the process of procuring the other spouse's consent.

Verily, on matters involving medical procedures, it cannot be seriously doubted that the choice of the person undergoing the procedure is of paramount importance precisely because it is his or her right to health, as an inextricable adjunct of his or her right to life, which remains at stake. The right to individual choice is the main thrust of the doctrine of personal autonomy and self-determination which provides that "[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law."32 Under this doctrine, a competent adult has the right to refuse medical treatment, even treatment necessary to sustain life;33 all the more, should the adult have the right to, on the flip side, avail of medical treatment necessary to sustain his or her life. Aptly citing American jurisprudence, Chief Justice Maria Lourdes P.A. Sereno, in her opinion, enunciates that "every human being of adult years and sound mind has a right to determine what shall be done with his own body."34 I share this sentiment.

In the final analysis, the constitutional right to found a family should not be shallowly premised on the mere decision on the number of children; the right to found a family, more importantly, looks towards the well-being of its members, such as the reproductive health of the spouse undergoing the disputed procedure. To this end, the decision of said family member should be respected and not be overruled by either his/her spouse or by the courts. Respect for individual autonomy, especially in cases involving the individual's physical well-being, is a reasonable limitation and, even, a corollary to the spouses' collective right to found a family.

V. Pro Bono Services as Pre-requisite
for PhilHealth Accreditation.

Section 1735 of the RH Law provides that public and private healthcare service providers are encouraged to provide at least 48 hours of pro bona reproductive health services annually, ranging from providing information and education to rendering medical services. The same proviso also states that such annual pro bona service is a pre-requisite for the healthcare service provider's accreditation wi.th the PhilHealth.

In declaring this provision as unconstitutional, the ponencia while recognizing that said provision only encourages and does not compel under pain of penal sanction the rendition of pro bona reproductive health care services, nonetheless held that it violates the conscientious objectors' freedom to exercise their religion.36

On this last point, I still disagree.

As there is no form of compulsion, then the conscientious objector remains free to choose whether to render pro bona reproductive health care services or not. In the event, however, that he or she decides not to render such services, the State has the right to deny him or her PhilHealth accreditation. Being a mere privilege, the State, through its exercise of police power, is free to impose reasonable concessions that would further its policies, i.e., dissemination of information and rendering of services on reproductive health, in exchange for the grant of such accreditation.

VI. A Final Word.

The sacredness of human life and the primacy of the family are values we, despite our differences, have all come to hold true. The people who, through their elected representatives in Congress, have given the RH Law their stamp of approval, I believe, do not cherish these values any less. It is by trusting that we all share a common respect for the core values that we can all afford the RH Law a chance to foster its legitimate objectives. There is no question that we, by the blessings of democracy, all have the right to differ on how we chart our nation's destiny. But the exercise of one's freedoms must always come with the recognition of another's. We have built our political institutions not only as a venue for liberty to thrive, but also as a unifying space to reconcile disparity in thought. While we may have now reached a verdict on the path to take on the issue of reproductive health, let us not forget that, in the fire of free exchange, the process is a continuous one: we are all contributors to constant refinement; nothing precludes us from positive change. As a noted philosopher even once remarked, freedom is nothing but a chance to be better.37 I share this belief, but I also know this: that in the greater scheme of things, there is a time and place for everything.

IN VIEW OF THE FOREGOING, I vote to declare Republic Act No. 10354 as CONSTITUTIONAL, and, on the other hand, Section 5.24 of its Implementing Rules and Regulations as INVALID for the reasons stated in this opinion.

ESTELA M. PERLAS-BERNABE
Associate Justice


Footnotes

1 <http ://acbanews.wordpress.com/2014/02117 /george-washington/> (visited April 5, 2014).

2 Section 1, Article II of the 1987 Philippine Constitution provides:

SEC. 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them .

3 Lozano v. Nograles, G.R. Nos. 187883 & 187910, 607 Phil. 334, 340 (2009), citing Angara v. Electoral commission, 63 Phil. 139 (1936).

4 See Lawyers Against Monopoly and Poverty (LAMP) v. Secretary of Budget and Management, G.R. No. 164987, April 24, 2012, 670 SCRA 373, 386-387, citing ABAKADA GURO Party List v. Purisima, 584 Phil. 246, 268 (2008); emphasis supplied.

5 Victoriano v. Elizalde Rope Workers' Union, 158 Phil. 60 (1974).

6 Entitled "AN ACT PROVIDING FOR A NATIONAL POLICY ON RESPONSIBLE PARENTHOOD AND REPRODUCTIVE HEAL TH."

7 Sections 9, 14 and 15, among others.

8 Section 3.01 For purposes of these Rules, the terms shall be defined as fo llows:

a) Abortifacient refers to any drug or device that primarily 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 Food and Drug Administration (FDA).

9 Section 3.01 For purposes of these Rules, the terms shall be defined as follows :

x x x x

j) Contraceptive refers to any safe, legal, effective , and scientifically proven modern family planning method, device, or health product, whether natural or artificial, that prevents pregnancy but does not primarily destroy a fertilized ovum or prevent a fertilized ovum from being implanted in the mother's womb in doses of its approved indication as determined by the Food and Drug Administration (FDA).

10 Id.

11 See Concurring Opinion of Justice Antonio T. Carpio, pp. 2-3.

12 See Dissenting Opinion of Justice Marvic Mario Victor F. Leonen, pp. 3, 43-77.

13 SEC. 12. 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. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. (E mphasis supplied)

14 Section 2 of the RH Law provides:

SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all persons including their right to equality and nondiscrimination of these rights, the right to sustainable human development, the right to health which includes reproductive health, the right to education and information, and the right to choose and make decisions for themselves in accordance with their religious convictions, ethics, cultural beliefs, and the demands of responsible parenthood.

Pursuant to the declaration of State policies under Section 12, Article II of the 1987 Philippine Constitution, it is the duty of the State to protect and strengthen the family as a basic autonomous social institution and equally protect the life of the mother and the life of the unborn from conception. The State shall protect and promote the right to health of women especially mothers in particular and of the people in general and instill health consciousness a mong them. The family is the natural and fundam ental unit of society. The State shall likewise protect and advance the right of families in particular and the people in general to a balanced and healthful environment in accord with the rhythm and harmony of nature. The State also recognizes and guarantees the promotion and equal protection of the welfare and rights of children, the youth, and the unborn.

x x x x (Emphasis supplied)

15 SEC. 7. Access to Family Planning. - All accredited public health facilities shall provide a full range of modern family planning methods, which shall also include medical consultations, 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 patients with the option to grant free care and services to indigents, except in the case of non-maternity specialty hospitals and hospitals owned and operated by a religious group, but they have the option to provide such full range of modern family planning methods: Provided, further, That these hospitals shall immediately refer the person seeking such care and services to another health facility which is conveniently accessible: Provided, finally, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344. (Emphasis and underscoring supplied)

16 See ponencia, pp. 66-71.

17 SEC. 23. Prohibited Acts. - The fo llowing acts are prohibited:

(a) Any health care service provider, whether public or; private, who shall :

(I) Knowingly withhold information or restrict the d issemination 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;

x x x x (Emphasis supplied)

18 SEC. 23 . Prohibited Acts. The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall :

x x x x

(2) Refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the ground of lack of consent or authorization on the following persons in the following instances:

x x x x (Emphasis supplied)

19 Ponencia, pp. 68-69.

20 SEC. 23. Prohibited Acts. The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

xx xx

(3) Refuse to extend quality health care services and information on account of the person's marital status, gender, age, religious convictions, personal circumstances, or nature of work: Provided, That the conscientious objection of a health care service provider based on his/her ethical or religious beliefs shall be respected; however, the conscientious objector shall immediately refer the person seeking such care and services to another health care service provider within the same facility or one which is conveniently accessible: Provided, further, That the person in not in an emergency condition or serious case as defined in Republic Act No. 8344, which penalizes the refusal of hospital and medical clinics to administer appropriate initial medical treatment and support in emergency and serious cases;

x x x x (Emphasis and underscoring supplied)

21 SEC. 5.24. Public Skilled Health Professional as a Conscientious Objector. – x x x.

x x x x

Provided, That skilled health professionals such as provincial, city, or municipal health officers, chiefs of hospital, head nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the duty to implement the provisions of the RPRH Act [RH Law] and these Rules, cannot be considered as conscientious objectors.

x x x x

22 See Estrada v. Escritor, 525 Phil. 110 (2006).

23 See ponencia, pp. 74-75, citations omitted.

24 Id. at 67.

25 Id. at 69.

26 " It is settled rule that in case of discrepancy between the basic law and a rule or regulation issued to implement said law, the basic law prevails , because the said rule or regulation cannot go beyond the terms and provisions of the basic Jaw." (Hijo Plantation, Inc. v. Central Bank, 247 Phil. 154, 162 [1988], citing People v. Lim, 108 Phil. 1091 [1960]).

27 SEC. 7. Access to Family Planning. – x x x.

x x x x.

No person shall be denied information and access to family planning services, whether natural or artificial: Provided, That minors will not be allowed access to modern methods of family planning without written consent from their parents or guardian/s except when the minor is already a parent or has had a miscarriage. (Emphasis and underscoring supplied)

28 See ponencia, pp. 79-80.

29 Executive Order No. 209, as amended.

30 SEC. 23. Prohibited Acts. The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

x x x x

(2) Refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the ground of lack of consent or authorization on the following persons in the fo llowing instances:

(i) Spousal consent in case of married persons: Provided, That in case of disagreement, the decision of the one undergoing the procedure shall prevail; and

x x x x (Emphasis and underscoring supplied)

31 See ponencia, pp. 78-79.

32 Conservatorship of Wendland, 26 Cal. 4th 519 (2001), citing Union Pacific Railway Co. v. Botsf ord, 141 U.S. 250 (1891).

33 Id.

34 Chief Justice Sereno's Opinion, p. 14, citing Schloendorffv. Society of New York Hospital, 105 N. E. 92.

35 SEC. 17. Pro Bono Services for Indigent Women. - Private and nongovemment reproductive healthcare service providers including, but not lim ited to, gynecologists and obstetricians, are encouraged to provide at least forty-eight (48) hours annually of reproductive health services, ranging from providing information and education to rendering medical services, free of charge to indigent and low-income patients as identified through the NHTS-PR and other government measures of identifying marginalization, especially to pregnant adolescents. The forty-eight (48) hours annual pro bono services shall be included as a prerequisite in the accreditation under the Phil Health.

36 See ponencia, pp. 88-89.

37 Albert Camus, "Resistance, Rebellion, and Death: Essays," p. 103 (1961).


The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION

CARPIO, J.:

I concur in the ponencia of Justice Jose Catral Mendoza. However, my opinion is that at this stage, the Court is simply not competent to declare when human life begins, whether upon fertilization of the ovum or upon attachment of the fertilized ovum to the uterus wall. The issue of when life begins is a scientific and medical issue that cannot be decided by this Court without the proper hearing and evidence. This issue has not even been settled within the scientific and medical community.

R.A . No. 10354, however, protects the ovum upon its fertilization without saying that life begins upon fertilization. This should be sufficient for purposes of resolving this case - for whether life begins upon fertilization or upon implantation of the fertilized ovum on the uterus wall, R.A. No. 10354 protects both asserted starting points of human life. Absent a definitive consensus from the scientific and medical community, this Court cannot ventµre to pronounce which starting point of human life is correct. We can only reiterate what Section 12, Article II of the Constitution provides, that the State shall "equally protect the life of the mother and the life of the unborn from conception x x x."

Section 12, Article II of the Constitution is repeated in Section 2 of R.A. No. 10354. The law does not provide a definition of conception. However, the law is replete with provisions that embody the policy of the State to protect the travel of the ferti lized ovum to the uterus wall. In fact, the law guarantees that the State will provide access only to "medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive health care services, methods, devices, supplies which do not prevent the implantation of a fertilized ovum as determined by the Food and Drug Administration."1 R.A. No. 10354 protects the fertilized ovum by prohibiting services, methods, devices or supplies that prevent its implantation on the uterus wall.

Accordingly, I concur in the ponencia of Justice Jose Catral Mendoza.

ANTONIO T. CARPIO
Associate Justice


Footnotes

1 Section 2(d), second paragraph, R.A. No. 10354.


The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION

LEONARDO-DE CASTRO, J.:

The question of validity or nullity of laws is not determined by who makes the most popular of arguments in legislative or academic hills, or the most passionate of pleas in the parliament of the streets. The issue of validity of laws is not a matter of popularily or passion but is a question of conformity with the Contitution. And in our legal system, this Court, as the final interpreter or the Constitution and the articulator of its underlying principles, has been conferred the power to determ ine whether a law is in harmony with the Constitution.

Arguably, no law has been as controversial under the regime or the 1987 Constitution as Republic Act No. 10354, otherwise known as "The Responsible Parenthood and Reproductive Health Act of 2012," and more commonly known as the "Reproductive Health (RH) Law." It is not merely a collision of the conservative and liberal sectors of Philippine society, or a colossal clash between the (Catholic) Church and the State as some project it to be, or the paradox of an irresistible force meeting an immovable object. It is perceived to have started a cultural war and spawned these consolidated cases, which highlight a deep disagreement and an intense debate on the implications of the law on various fundamental rights .

I submit this Opinion in the hope of contributing to our people's appreciation of the issues involved so that we may continue to collectively look for ways to promote our democratic institutions and protect individual liberties.

The RH Law: Legislating 'RH Rights'

After more than a decade of deliberation in Congress, the RH Law was enacted by the Fifteenth Congress as Republic Act No. 10354 on December 12, 2012.

It was signed by the President into law on December 21, 2012. In connection with the President's signing of the RH Law, the Office of the President issued a statement that said: The passage into law of the Responsible Parenthood Act closes a highly divisive chapter of our history a chapter borne of the convictions of those who argued for, or against this Act, whether in the legislative branch or in civil society. At the same time. it opens the possibility of cooperation and reconciliation among different sectors in society: engagement and dialogue characterized not by animosity, but by our collective desire to better the welfare of the Filipino people.

This is the mark of a true democracy: one in which debate that spans all levels of society is spurred by deeply-held beliefs and values. enriching and elevating public discourse. as we all work toge ther to find ways to improve the lives of our fellow citizens.1

The RH Law creates a bundle or rights known as the " RH rights" defined as follows:

Reproductive health rights refers to the rights of individuals and couples, to decide freely and responsibly whether or not to have children: the number, spacing and timing of their children: to make other decisions concerning reproduction, free of discrimination. coercion and violence; to have the information and means to do so; and to attain the highest standard of sexual health and reproductive' health: Provided however. That reproductive health rights do not include abortion and access to abortifacients.2

The RH rights are fortified by the concept of "universal access" to so-called "medically-safe, non-aborti facient, effective, legal, affordable, and quality reproductive health care services, methods, devices, supplies w hi ch do not prevent the implantation of a fc1iilized ovum as determined by the Food and Drug Administration (FDA)."3

The RH Law and Constitutional Questions

Anti-RH Law advocates did not waste time in questi oning the constitutionality of the law. The first petition against the said law, G.R. No. 204819, was filed in this Court on January 2, 2013. T hirteen peti tions we re subsequently filed.

The common arguments of the various petitioners against the RH Law are as follows:

(1) the RH Law violates the constitutional safeguard for the sanctity of the family under Section 12, Article 11, and Article XV or the 1987 Constitution;

(2) the RH Law defeats the constitutional protection for the life of the unborn from conception under Section 12, Article II of the 1987 Constitution;

(3) the RH Law prejudices the right to health of the people, particularly of women, contrary to Section 15, Article II of the 1987 Constitution;

(4) the RH Law unduly constricts the freedom of religion, particularly the free exercise of one's spiritual faith, guaranteed under Section 5, Article III of the 1987 Constitution; and

(5) the RH Law unduly restrains the right to free speech guaranteed under Section 4, Article Ill of the 1987 Constitution.

In defense of the RH Law, the Government, through the Office of the Solicitor General, asserts that the RH Law is a landmark piece of social welfare legislation that seeks to promote the health and welfare or mothers , infants, children and the Filipino family as a whole. It gives the people, especially the poor and the marginalized, access to information and essential reproductive health care services and supplies. It is the State's response to the need to address the reproductive health concerns of its citizens. Particularly, the law intends to save the lives of mothers and new born infants.4

The Government further describes the RH Law as, at its core, a government subsidy designed to make reproductive health devices and services available to the public. As the power of Congress to subsidize education, public utilities and food is generally considered to be within its constitutional authority, the power of Congress to subsidize reproductive health devices and services should similarly be viewed as not susceptible toconstitutional attacks.5

The Government insists that the RH Law as a legislative act, which has been approved by the executive, enjoys the presumption or constitutionality. In enacting the RH Law, Congress effectuated the constitutional prohibition against abortion. In particular, in defining "abortifacients", the legislature implemented the constitutional intent to protect life from conception. Moreover, in providing that the National Drug Formulary shall include "hormonal contraceptives, land I intrauterine devices [(IUDs)]", Congress made a legislative finding of fact that contraceptives and IUDs are "safe" and "non-abortifacicnt." The Government contends that, this finding, supported in the legislative records by evidence-based medical and scientific testimony, is entitled to great weight and deference by this Court.6

The parties were then heard in oral arguments to give them an opportunity to exhaustively discuss their respective arguments as well as to inform the public of the constitutional and legal issues involved in these cases.

On Procedural Issues

I concur with the majority opinion on procedural issues relating, among others, to the exercise of the power of judicial review, the existence of an actual case or controversy which is ripe for judicial determination and the propriety of facial challenge in the case of the RH Law.

I wish to add that, in general, a facial challenge is a constitutional challenge asserting that a statute is invalid on its face as written and authoritatively construed, when measured against the applicable constitutional doctrine, rather than against the facts and circumstances or a particular case.7 The inquiry uses the lens of relevant constitutional text and principle and focuses on what is within the four comers of the statute, that is, on how its provisions are worded. The constitutional violation is visible on the face of the statute. Thus, a facial challenge is to constitutional law what res ipsa loquitur is to facts – in a facial challenge, lex ipsa loquitur: the law speaks for itself.8

The Government, invoking Estrada v. Sandiganbayan9 , argues that legitimate facial attacks upon legislation constitute a rare exception to the exercise of this Court's jurisdiction.10 This is the conventional wisdom and it is principally based on the American Salerno11 rule that a facial challenge to a legislative act is the most difficult challen ge to mount successfully, since the challenger must establish that no set of circumstances exists under which the law would be valid.12 It has been previously pointed out, however, that the American Salerno rule has not been met with unanimity in the American legal community.13 It has also been pointed out that Philippine jurisprudence "has traditionally deigned to nullify or facially invalidate statutes or provisions thereof without need of considering whether 'no set of circumstances exists under which the [law or provision] would be valid."14 A good example is the recent case of Biraogo v. Philippine Truth Commission.15

More significantly, laws that violate important individual rights uniquely and distinctly warrant facial invalidation.16 This is grounded on the following justification:

[W]here constitutional values are unusually vulnerable the Supreme Court can authorize the robust protection afforded by tests that invite rulings of facial invalidity and preclude the case-by-case curing of statutory defects. This approach most commends itself when a constitutional provision both affords protection to speech or conduct that is especially prone to "chill" and reflects a value that legislatures may be unusually disposed to undervalue in the absence or a significant judicially established disinccntive.17

As worded, the RH Law goes against a number of significant constitutional guarantees and principles. For this reason, I join the majority in declaring unconstitutional certain provisions of the RH Law that are inconsistent and incompatible with the constitutional guarantee of fundamental rights such as the freedom of religion and freedom of speech and the protection of the sanctity of the family, including the corresponding rights of the husband and the wife as spouses and as parents. A close scrutiny of the law is imperative to see to it that it does not imperil the constitutionally guaranteed right to life and health of the unborn from conception, and of women. All of these sustain the facial challenge against certain provisions of the RH Law.

On the Substantive Issues

The Right to Life

I fully concur with the comprehensive and exhaustive discussion in the majority opinion penned by the Honorable Justice Jose Catral Mendoza, as to the plain meaning and jurisprudential and medical foundation of the Court's conclusion that the moment of conception is reckoned from fertilization; that the fe1iilized ovum, known as zygote, is the beginning of a human being; and that the theory of implantation as the beginning of life is devoid of any legal or scientific mooring or basis as it pertains not to the beginning of life but to the viability of the fetus. The fertilized ovum is able to attach or implant itself to the uterine wall because it is a living human being. The majority opinion aptly quoted with favor the following statement of the Philippine Medical Association:

The scientific evidence supports the conclusion that a zygote is a human organism and that the life of a new human being commences at a scientifically well defined "moment of conception." This conclusion is objective, consistent with the factual evidence. and independent of any specific ethical, moral, political, or religious view of human life or of human embryos.

Since the Constitution protects the life of the unborn from conception, abortion of the fertilized ovum cannot be allowed by law. Thus, the RH Law defines an abortifacient as follows:

SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:

(a) Abortifacient refers to 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.

While an abortifacient is outlawed by the Constitution and the RH Law, the practical problem in its enforcement lies in the determination of whether or not a contraceptive drug or device is an abortifacient. This is where expert medical opinion is imperative. The character of the contraceptive as an abortifacicnt or non-abortifacient cannot be legislated or fixed by law and should be confined to the domain of medical science. It is in this light that the provision of Section 9 of the RH Law quoted below should be construed if it is to be saved from constitutional attack:

SEC. 9. The Philippine National Drug Formulary System and Family Planning Supplies. - The National Drug Formulary shall include hormonal contraceptives intrauterine devices, injcctablcs and other safe, legal, non-abortifacient and effective family planning products and supplies. The Philippine National Drug Formulary System (PNDFS) shall be observed in selecting drugs including family planning supplies that will be included or removed from the Essential Drugs List (EDL) in accordance with existing practice and in consultation with reputable medical associations in the Philippines. For the purpose of this Act. any product or supply included or to be included in the EDL must have a certification from the FDA that said product and supply is made available on the condition that it is not to he used as an abortifacient.

These products and supplies shall also be included in the regular purchase of essential medicines and supplies of all national hospitals: Provided. further, That the foregoing otlices shall not purchase or acquire by any means emergency contraceptive pills, postcoital pills, abortifaeienis that will be used for such purpose and their other forms or equivalent.

There is no unanimity of opinion whether hormonal contraceptives and intrauterine devices are in fact "non-abortifacient" and "safe." In fact in the last sentence of Section 9, there is a tacit admission that said hormonal contraceptives or intrauterine devices are abortifacicnt but they are "not to be used" as such.

Accordingly, since Section 9 admits that only safe, legal and non-abortifacient contraceptives, injectables and devices can be lawfully included in the National Drug Formulary, I join the majority opinion in holding that Section 9 should be read to mean that there is no legal compulsion to include hormonal contraceptives, injectables and devices in the National Drug Fomulary unless they are safe, legal and non-abortifacient, which obligatory preconditions must be determined by the appropriate government agency, in this case the Food and Drug Administration (FDA). I concur in principle with Justice Mariano C. del Castillo's opinion that the FDA must formulate stringent and transparent rules of procedure in the screening, evaluation and approval or al contraceptive drugs and devices to ensure that they are safe, non-abortifacient and legal or compliant with the mandate of the Constitution and the law. The government should be accountable or held liable whenever deleterious consequences to the health or life of the unborn or the mother result from the latter's availrncnt of government supplied contraceptive drugs or devices and the government's inability to provide adequate medical attention or supervision dictated by the individual health condition or a woman beneficiary.

I also agree with Justi ce Mendoza's ponencia and Justice del Castillo's objection to Section 3.01 of the RH Law's Implementing Rules and Regulations (IRR) that the latter cannot redefine the term "abortifacicnt" by the addition of the word "primarily" as follows:

Section 3.01. For purposes of these Rules the terms shall be defined as follows:

a) Abortifocient refers to any drug or device that primarily 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 Food and Drug Administration (FDA). (Emphasis supplied)

As reworded, it will allow the approval of contraceptives which has a secondary effect of inducing abortion or the destruction of the fetus or the prevention of implantation or the fertilized ovum in the mother's womb. This secondary effect is the fail-safe mechanism, which is contrary to Section 12, Article II of the 1987 Constitution and Section 4 (a) of the RH Law.

The RH Law and the People's Right to Health

The relevant portion or Section 2 of the RH Law declares as a policy the centrality of the advancement and protection of women's human rights in the matter or reproductive health care:

SEC. 2. Declaration of Policy. x x x

Moreover, the State recognizes and guarantees the promotion or gender equality, gender equity, women empowerment and dignity as a health and human rights concern and as a social responsibility. The advancement and protection of women's human rights shall be central to the efforts of the State to address reproductive health care. x x x (Emphasis supplied)

The policy of the centrality of women's human rights in the matter of reproductive health care seeks to empower women. The importance of the centrality of women's human rights in the matter of reproductive health care is underscored by its reiteration in Section 3 (m)18, the guiding principles for the law's implementation, and its privileged status in Section 2719 as the determining factor in interpreting or construing the law. The policy of centrality of women's human rights in the matter of reproductive health care finds its rationale in the biological function and anatomical make-up or the woman in relation to reproduction. This finds expression in the last part of Section 4 (h) on gender equity which states that "while [RH] involves women and men, it is more critical for women's health." ln other words, the law acknowledges that, while both man and woman are entitled to RH rights, the RH rights are more significant for the woman as she is the one who gets pregnant, bears the unborn child in her womb for nine months, and gives birth to the child.

Thus, if the RH Law is to really protect and empower women, the RH Law's universal access policy should be read and implemented in a manner that docs not put the health of women at risk or impair their right to health.

Section 15, Article II of the 1987 Constitution provides:

Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.

The right to health is a necessary element of the right to life. More importantly, the right to health is, in itself, a fundamental human right. This is a consequence of the Philippines being a party to the Universal Declaration of Human Rights and the Alma Conference Declaration or 1978,20 as well as the country's adoption or generally accepted principles or international law.21 Reproductive health is defined as the "state of complete physical, mental and social well-being, and not merely the absence or disease or infirmity, in all matters relating to the reproductive system and to its functions and processes.22 Thus, the right to health is greater than and subsumes reproductive health.

The petitioners assert that, rather than promoting the health of women, the State is exposing women to serious illnesses in its enactment of the RH Law and sponsorship of the universal access of so-called modern means or family planning. According to them:

Studies have established that use of oral contraceptives increases the risk of breast and cervical cancer. Advocates or oral contraceptives have brushed aside these harmful effects. To do so in tight of the magnitude of the adverse side-effects of oral contraceptives which have been documented is a woefu ignorance of the facts or a deliberate and cynical act of injustice to women.

x x x           x x x          x x x

To provide a graphic example, the [RH Law] would almost have the same effect as the government funding the purchase of cigarettes another known carcinogenic - as basic goods. distributing them for free (especially to the poor) and prescribing their use. We can say, therefore, that [the RH Law] does not promote reproductive health, but sickness and death.

This being so, [the RH Law] not only allows the violation of women's right to health, but encourages and funds the purchase of such carcinogenic substances which clearly endanger women's health. As such, the law should be declared unconstitutional and void.23

xxx an International Agency for Research on Cancer (IARC) Study (2011) by 23 scientists from 10 countries concluded that "oral combined strogen-progestogen contraceptives are carcinogenic to humans." The study mentions that "oral combined estrogen-progestogen contraceptives cause cancer or the breast, in-situ and invasive cancer or the uterine cervix, and cancer of the liver." It cannot be gainsaid as it has been established by scientific studies that contraceptives are hazardous to women, yet, the RH Law allots billions of taxpayers' money for the purchase or the contraceptives to be distributed particularly to the poor. On this score alone, the RH Law is a lready unconstitutional. Treatment for cancer is very expensive even if it is not always curative but mostly just palliative. What is even more tragic is that when these poor women get sick of cancers there is no free treatment available from the government. More and more women are getting sick of different kinds of cancers because of oral contraceptive pills that they themselves buy for their own use, with the abundant free supply from the [Estate], it would not be farfetched to expect a deluge or cancer patients.24

x x x x x

The [RH] law not only violates the right to life of the unborn,

But endangers the life of the mother as well

51. Both the life of the mother and the unborn are protected by the Constitution. However, the law subject of this petition allows women to use certain drugs that are not only abortifacients, but also cause long-term illnesses to women.

52. A monograph released last year (2011) by a working group under the WHO’s International Agency for Research on Cancer (IARC) made an "overall evaluation" that "combined oral estrogen-progesterone contraceptives are carcinogenic to humans." The 2011 report classified the pill as a "Group 1" carcinogen, which means the highest level of evidence of cancer risk. "There is sufficient evidence in humans for the carcinogenicity of oral combined estrogen-progesterone contraceptive. Oral combined estrogen-progesterone contraceptives cause cancer of the breast, in-situ and invasive cancer of the uterine cervix, and cancer of the liver," said the 40-page section on oral contraceptive pills of the WHO-IARC monograph.

53. On breast cancer, the Mayo Clinic, consistently considered as one of the best hospitals in the world, published in 2006, an article entitled "Oral Contraceptive Use as a Risk Factor for Premenopausal Breast Cancer: A Meta-analysis." The meta-analysis, a study of world scientific literature on this issue concluded that use of the pill is linked with statistically significant association with pre-menopausal breast cancer. The association was 44% over baseline in women who have been pregnant and took the pill before their first pregnancy.

54. On cervical cancer, a systemic review of literature or 2003 published at the Lancet, one of the leading medical journals in the world, stated: "long duration use of hormonal contraceptives is associated within increased risk or cervical cancer."

55. On heart affacks, a 2005 meta-analysis at The Journal of Clinical Endocrinology & Metaboli sm stated that "a rigoro us mcta-analysis of the literature suggests that current use of low-dose OCs significantly increases the risk of both cardiac and vascular arterial events."

56. On stroke, one or the leading scicntilic journals or the American Heart Association published a study precisely titled as STROKE in 2002, concluded that indeed the pill confers "the risk of first ischemic stroke."

57. Considering the foregoing long-term effects of contraceptives on women the law allowing the use of such contraceptives clearly violate[s] one of the most important tenets of the Constitution. The drugs allowed by the law not only harm the unborn, but endanger the life of the mother as well.25

x x x x x

Medical consequences

65. In the case or contraception, the medical harm caused by contraceptives are well-documented. Strong links have been established, for example, between the pill and cancer, stroke and heart attacks, while the availability of condoms has been statistically shown to spread AIDS, rather than suppress it.

66. Thus, among just some of the specific dangers alleged are neural tube defects (from a study by the Department of Epidemiology, School of Public Health, China Medical University; 2011), childhood strokes (Christerson, Stromberg, Acta; 2010), and a disturbing hypothesis regarding hypoplastic left heart syndrome and gastroschisis (by Walter, DK. Et al., University of Texas, Houston Health Science Center; 2010).

67. To women themselves, the dangers arising from contraceptive use are apparently endless: breast cancer, cervical cancer, high blood pressure, heart attacks, venous thrombosis (or blood clotting), excessive bleeding, menstruation difficulties, permanent inferitlity (making even artificial insemination ineffective), migraines and bone damage. Jenn Giroux (longtime commentator on contraception and with decades of experience in health service), writing for the Washigton Times ("Killer Compromise; Plan to give birth control to women will raise body count"; 13 February 2012) found:

  • "Since 1975 there has been a 400% increase in in situ breast cancer among pre-menopausal women under 50 years old. This mirrors the increased use of birth control these same years.

  • A Mayo Clinic study confirms that any young girl or woman who is on hormonal birth control for 4 years prior to first full term pregnancy increases their breast cancer risk by 52%.

  • Women who use hormonal birth control for more than five years are four times more likely to develop cervical cancer.

  • The International Agency for Research on Cancer (IARC), a research arm of the World Health Organization classifies all forms of hormonal contraception as a Group I carcinogen. This group of cancer causing agents also includes cigarettes and asbestos.

  • In October 2010 the NY Times carried an article about Hormone Replacement Therapy drugs. It quoted the American Medical Association (AMA) as warning women that these post-menopausal drugs which were originally marketed as keeping a woman young and sexy were discovered instead to be m o re likely to cause advanced and deadly breast cancer. It stopped short of making one other startling revelation: The only difference between hormone replacement therapy drugs which cause deadly breast cancer and the hormonal birth control drugs (now mandated by the Obama administration) is that the birth control drugs are six times the dosage -- and are the very same drug[s]!"

68. Lori Chaplin reported (Want to Find a Good Husband and Have a Family? Don’t Use the Phil. National Catholic Register, 10 November 2012: citing a 2009 U.K. study "Does the Contraceptive Pill Alter Mate Choice in Humans?") that, aside from making women less attractive (due to the contraceptive’s prevention of ovulation, thus, interfering with a woman’s "appearance, odor and voice pitch – to which men are sensitive"), contraceptives also unquestionably cause harm to women’s bodies.

69. Chaplin describes such serious dangers to include "increased likelihood of breast cancer, heart attack, strokes, blood clots, high blood pressure, liver tumors and gallstones. The pill a lso heightens infertility. When a ho rmone is chronically changed it actually changes the entire system of hormones. It changes the master hormones and how they excrete. The result of this is when a woman does want to become pregnant and stops the pill, the body continues to act as if the pill is sti ll being taken. That is one of the reasons why women who have been on contraceptives for a long period of time can't get pregnant!"

70. The aforementioned UK study further noted contraceptives "detrimental effects on future generations, stressing that more studies need to be conducted. They predict that offspring of pill users will by homozygous (possessing two identical forms of a particular gene), which can be related to impaired immune function, an increase of genetic diseases, as well as decreased perceived health and attractiveness".

71. Reuters (7 November 2011) also reported on studies indicating that the risk for venous blood clots was 43 percent to 65 percent higher with drospirenone-containing pills, compared with older, so-called second- and third-generation pills".

72. Contraceptives are obviously so dangerous to health that the US Federal Drug Agency, within the last year alone, had to either oversee the recall of or order increased warnings on two separate oral contraceptive brands due to the possible serious adverse health problems that they could cause. It is a fact that numerous lawsuits have been filed against manufacturers of contraceptives over the health problems they caused. They are of such grave medical concern that numerous doctors in the United States (see the group One More Soul, for example) have decided not to prescribe contraceptives to their patients.1âwphi1

73. As mentioned in the immediately foregoing paragraphs, the perils accompanying contraceptives are such that liability lawsuits are a growing industry in the West, Legal aid group Lawyers and Settlements reported that as of "March 2012, approximately 12,000 lawsuits" have been brought against the manufacturer of widely used contraceptives "Yasmin, Yaz, Beyaz and Safyral, alleging an increased risk of blood clots (deep vein thrombosis (DVT), pulmonary embolism (PE) and gallbladder problems." NuvaRing Resources Center, a "patient advocacy group", also reported that "the FDA has received 1,000 reports of blood clot injury or death in patients using NuvaRing. On October 27, 2011 they released a report titled, ‘Combined Hormonal contraceptives (CHCs) and the Risk of Cardiovascular Disease Endpoints’, which showed vaginal ring contraceptives could increase the risk of blood clots by as much as 56%".26

The Government refutes the allegations or petitioners by invoking its own set of authorities and expert opinions:

The RH Law docs not violate the right to health provision
under Section 15, Article II, nor the right to protection
against hazardous products in Section 9, Article XVI of
the Constitution.

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Preliminarily, the above constitutional provisions allegedly violated by respondents are mere statements of principles and policies. Hence, they cannot give rise to a cause of action in the courts; they do not embody judicially enforceable constitutional rights.

Even assuming that the said constitutional provisions may he considered sclf-excutory, they were not violated.

In the aforementioned Medical Experts' Declaration on the Action of Contraceptives dated August 8, 2011 prepared by UHC Study Group, Annex 5 hereof, the medical experts made the following conclusions:

x x x           x x x          x x x

8. Like all medical products and invtervenions, contraceptives must first be approved for safety and effectiveness by drug regulatory agencies. Like all approved drugs, contraceptives have "side effects" and adverse reactions, which warrant their use based on risk-benefit balance and the principles of Rational Drug Use. Risk-benefit balance also applies when doing no tfh ling or not providing medicines which can result in greater morbidities and death.

In case of contraceptives, which are 50-year old medicines, the Medical Eligibility Criteria (MEC) developed by the WHO is the comprehensive clinicians’ reference guiding the advisability of contraceptives for particular medical conditions.

9. The benefits of the rational use of contraceptives far outweight the risk. The risk of dying from pregnancy and childbirth complications is high (1 to 2 per 1000 live births, replaced with every pregnancy). Compared to women nonsmokers aged below 35 who use contraceptive pills, the risk of dying from pregnancy and delivery complications is about 2,700 times higher.

10. The risk of cardiovascutar complications from the appropriate use of hormonal contraceptives is low. While the risk for venous thromboembolism (blood clotting in the veins among oral contraceptive users is increased, the risk or dying is low, 900 times lower than the risk or dying from pregnancy and childbirth complications, Heart attack and stroke are also rare in women of reproductive age and occur in women using hormonal contraceptives only in the presence of risk factors - like smoking, hypertension and diabetes. The MEC will guide providers in handling patients with cardiovascular conditions.

11. The risk of breast cancer from the use of combined hormonal pills (exogenous estogen or estrogen from external sources) is lower than the risk from prolonged exposure to endogenous estrogens (hormones naturally present in the body. Current users of oral contraceptives have a risk of 1.2 compared to 1.9 among women who had early menarche (first menstruation) and late menopause, and 3.0 among women who had their first child after age 35. The risk of breast cancer from oral contraceptive use also completely disappears after 10 years of discontinuing use.

Combined hormonal pills are known to have protective effects against ovarian, endometrial and colorectal cancer.

12. The safety and efficacy of contraceptives which passed the scientific scrunity of the most stringent drug regulatory agencies, including the US FDA, warranted their inclusion in the WHO’s "core list" of Essential Medicines since 1977. The core list enumerates "minimum medicine needs for a basic health care system listing the most efficacious, safe and cost-effective medicines for priority conditions."

13. Contracetives are included in the Universal Health package of the Department of Health. The use of contraceptives in Family Planning programs are known to reduce maternal mortality by 35% through the elimination of unintended pregnancy and unsafe induced abortions.

Moreover, the WHO regularly publisher a monograph entitled Medical Eligibility Criteria for Contraceptive Use (MEC) to further ensure the general safety and efficacy of modern artificial contraceptives. This monograph "aims to provide guidance to national family planning/reproductive health programs in the preparation of guidelines for service delivery of contraceptives."

The MEC has since been translated by the DOH into the Family Planning Manual which is a ready clinical reference to guide health care providers in advising their patients on the best possible family planning drug, device, method or service that would maximize benefits and minimize risks given their individual circumstances.

To repeat, the RH Law simply guarantees access to contraceptives which are medically-safe, non-abortifacient, legal and effective in accordance with scientific and evidence-based medical research standards such as those registered and approved by the FDA. The FDA shall first determine and certify the safety, efficacy, and classification of products and supplies for modern family planning methods prior to their procurement distribution sale and use.

The RH Law also provides that "the FDA shall issue strict guidelines with respect to the use of contraceptives taking into consideration the side effects or other harmful effects of their use:· Likewise, it provides that "[t]he State shall promote programs that: xxx (5) conduct scientific studies to determine the safety and efficacy of alternative medicines and methods for reproductive health care development." Furthermore, the selection of drugs includi ng family planning supplies that will be included or removed from the Essential

Drugs List "(EDL)" shall be in accordance with existing pract ice and in consultation with reputable medical associations in the Philippines." It is thus very clear that before contraceptives are m ade available to the public, the same shall have first been the subject of strict scrutiny by the FDA.

The RH Law promotes, protects and enhances
the people’s right to health, particularly of
mothers and and infants.

---------------------------------------------------------------

Section 11, Article XIII of the 1987 Constitution provides:

Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. There shall be priority for the needs of the underprivileged, sick, clearly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers.

The expression of "an integrated and comprehensive approach to health development" sums up two principles premised on the understanding that the high level of health of the people and of the country can be attained only through a combination of social, economic, political and culture conditions. Integration connotes a unified health delivery system, a combination of private and public sectors, and a blend of western medicine and traditional health care modalities. Comprehensiveness includes health promotion, disease prevention, education, and planning. And all of these are a recognition of the people’s right to health.

Moreover, the right to health is not to be understood as a right to be healthy. The right to health contains both freedoms and entitlements. The freedoms include the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.

Consequently, the promotion of reproductive health development includes, among others, access to a full range of modern methods of family planning which includes medically-safe and effective contraceptives even to the poor.

In Del Rosario vs. Bengzon, wherein the Philippine Medical Association (PMA) questioned the Generics Act. this flonorable Court held that the PMA misread the law's purpose which is to fulfill the constitutional command to make health care affordable.

The RH Law therefore does not violate the constitutional right to health; rather it promotes, protects and enhances the same by reducing maternal and infant mortality rates through access to safe. Legal, affordable, effective and essential reproductive health care services and supplies. Studies show that maternal deaths in the Philippines continue to rise simply because these mothers were not given the proper health care and access Lo key reproductive health information.27

Thus, the disagreement on the safety of the use of hormonal pills and IUDs by women is actually a result of reliance by the parties on conflicting scientific findings on the matter. [low should this Court address the constitutional concerns raised in these cases in the light of the divergence or position of the parties considering their significant implications on the constitutionally guaranteed right to health or the people, particularly or women?

The contending parties have presented a plethora of findings of experts in the medical field to support their respective positions. In this connection, two legal principles find relevance: the principle of prudence and the precautionary principle.

Fr. Joaquin Bernas, S.J., a member of the Constitutional Commission explained the principle or prudence:

The unborn's e ntitlement to protection begins "from conception." that is from the moment of conception. The intention is to protect Iife from its beginning, and the assumption is that human lire begins at conception and that conception takes place at fertilization. There is, however. no ancmpt to pin-point the exact moment when conception takes place. But whil e the provision docs not assert with certainty when human lile precisely begins, it reflects the view that in dealing with the protection of life, it is necessary to take the safer approach.28 (Emphasis s upplied)

The comment of Bishop Teodoro Bacani, another member of the Constitutional Commission, during the discussion of the provision affording protection to the life of the unborn fi·om conception is also relevant:

BISHOP BACANI. Madam President, may I again intervene. First of all, my personal belief is that this provision does not even depend on whether or not we recognize a strict right to life, that is why I proposed the family rights provision which, I believe, is a stronger one. And, secondly, Commissioner Aquino said that we cannot deal with speculation. Let me put it this way. On the other hand, when there is a doubt regarding questions of life and respect for human life, one must try to be on the safe side. For example, if one doubts whether a person is really still alive or is already dead, he is not going to bury that person. He is going to make sure first that the person is really dead because if he buries that person and says: "Well, I cannot rely on speculation. I cannot be completely certain." then he is hurting life or risks hurting life. Suppose there is an object moving in the thickets; I see it and as a hunter I say, "Well I am not sure whether it is a human being or an animal: but nevertheless I am hunting now, I will shoot." I do not think that that is a very prudent thing to do.29 (Emphasis supplied)

The gist of the principle of prudence, therefore, is that, in questions relating to life, one should err on the side of life. Should there be the slightest iota of doubt, life should be affirmed.30

On the other hand, in cases involving the environment, there is a precautionary principle which states that "when human activities may lead to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that thrcat."31 The Rules of Procedure for Environmental Cases provides:

RULE 20
PRECAUTIONARY PRINCIPLE

Section 1. Applicablity. --- When there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it.

The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt.

Section 2. Standards for application. - In applying the precautionary principle, the fol lowing factors, among others. may be considered: (1) threats to human life or health; (2) inequity to present or future generations: or (3) prejudice to the environment without legal consideration of the environmental rights of those affected.

The precautionary principle seeks to protect the rights of the present generation as well as to enforce intergenerational responsibility, that is, the present generation should promote sustainable development and act as stewards or caretakers of the environment for the benefit of generations yet unborn. In its essence, the precautionary principle calls for the exercise of caution in the face of risk and uncertainty. It acknowledges the peculiar circumstances surrounding environmental cases in that "scientific evidence is usually insufficient, inconclusive or uncertain and preliminary scientific evaluation indicates that there are reasonable grounds for concern" that there are potentially dangerous effects on the environment, human, animal, or planet health. For this reason, the precautionary principle requires those who have the means, knowledge, power, and resources to take action to prevent or mitigate the harm to the environment or to act when conclusively ascertained understanding by science is not yet availablc.32

The right to health, which is an indispensable clement of the right to life, deserves the same or even higher degree of protection. Thus, if it is scientifically plausible but uncertain that any foreign substance or material ingested or implanted in the woman's body may lead to threats or serious and irreversible damage to her or her unborn child's right life or health, care should be taken to avoid or diminish that threat. The principle of prudence requires that such a rule be adopted in matters concerning the right to life and health. In the face of the conflicting claims and findings presented by the parties, and considering that the right to health is inextricably intertwined with the right to life, it is proper to refer to the principle of prudence, which is the principle relied on by the framers of the 1987 Constitution on matters affecting the right to life. Thus, any uncertainty on the adverse effects or making contraceptives universally accessible on the Iife and health or the people, especially of women, should be resolved in a way that will promote life and health.

In the same vein, the application by logical and actual necessity of the precautionary principle also gains relevance in the discussion of the implications of the RH Law on the people's right to health. The unresolved medical issue on the potentially life-threatening effects or hormonal contraceptives and IUDs demands a cautious approach in the face of risk and uncertainty so as to prevent or mitigate the harm or threat of harm to the people, particularly to women.

The principle of prudence and the precautionary principle in matters concerning the right to life and health may be better promoted by continuing the regulation of the sale, dispensation and distribution of contraceptive drugs and devices under Republic Act No. 472933:

Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or otherwise distribute whether for or without consideration, any contraceptive drug or device, unless such sale, dispensation or distribution is by a duly licensed drug store or pharmaceutical company and with the prescription of a qualified medical practitioner. (Emphasis supplied)

Republic Act No. 4729 provides for a controlled access policy and requires that the sale, dispensation or distribution of any contraceptive drug or device should be made only by a duly licensed drug store or pharmaceutical company pursuant to a doctor's prescription. On the other hand, with its thrust of providing universal access to contraceptives, the RH Law gives the impression that it requires, under pain of criminal prosecution, even persons other than doctors of medicine (such as nurses, midwives, public health workers , and barangay health workers) to distribute contraceptives.34

Considering the relevant medical issues and health concerns in connection with contraceptives and devices, the regulated framework under Republic Act No. 4729 where contraceptive drugs and devices are sold, dispensed or distributed only by duly licensed drug stores or pharmaceutical companies pursuant to a doctor's prescription is no doubt more in harmony with the principle of prudence and the precautionary principle than the apparently unrestricted or universal access approach under the RH Law. This is so as the bodies of women may react differently to said drugs or devices depending on many factors that only a licensed doctor is capable of determining. Thus, the universal access policy should be read as qualified by the regulated framework under Republic Act No. 4729 rather than as impliedly repealing the said law.

The RH Law and the Freedom of Religion and freedom of Speech

Freedom of religion and freedom of speech are among our people's most cherished liberties. Petitioners assert that these freedoms are seriously infringed by the RH Law.

Freedom of Religion

Religious freedom is guaranteed under Section 5, Article III or the 1987 Constitution:

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

According to petitioners, the RH Law compels them to act against their religious beliefs and threatens them with criminal sanction if they insist on exercising the teachings of their faith. They point to Sections 7 and 23 (a)(3) of the RH Law as the provisions impinging on their religious freedom.

Petitioners assail Section 7's directive to extend family planning services to paying patients of private health facilities with the exception of non-maternity specialty hospitals and hospitals owned and operated by a religious group. The exception is, however, subject to the alternative mandate of referring the person seeking reproductive health care and services to another health facility which is conveniently accessible. Thus, while private health facilities run by conscientious objectors have no duty to render the reproductive health care and services required under the RH Law, such facilities are mandated to refer the patient to another health facility which will perform the said services. This same obligation to refer to another health care provider is found in Section 23 (a)(3), which imposes criminal sanctions on any private or public health care provider which refuses to extend quality health care services and information to a person seeking reproductive health service and information.

Petitioners claim that the RH Law does not truly respect the religious freedom of a conscientious objector when it imposes upon the latter the duty to refer a person seeking reproductive health services to another health care provider. The imposition of such duty to refer makes the referring objector complicit to the methods and acts of the referred health care provider. Thus, petitioners assert that while the law does not directly violate the religious freedom of the conscientious objector, there is still an indirect violation of religious freedom.

For its part, the Government claims that, contrary to petitioners' contention, the RH Law does not violate petitioners' religious freedom. Rather, the RH Law recognizes and accommodates a person's right to exercise his or her religion. According to the Government, the mandate of Section 5, Article III of the 1987 Constitution is to protect and promote religious liberty; the freedom from any government compulsion to adhere to a specific religion or to none at all. Congress, in enacting the RH Law, recognized and acknowledged a person's right to his faith by expressly providing in Section 2 of the RH Law that the State recognizes and guarantees the "right to choose and make decisions for themselves in accordance with their religious convictions", particularly, the "right or spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood". Moreover, Section 3, which lays down the guiding principles for the implementation of the RH Law, expressly provides in its paragraph (h) that the "State shall respect individuals' preferences and choice of family planning methods that are in accordance with their religious convictions and cultural beliefs, taking into consideration the State's obligations under various human rights instruments." Clearly, therefore, the RH Law was crafted within the context that each person has a religious belief deserving of recognition and respect. The general direction of the RH Law therefore is to accommodate. This principle of religious tolerance and acceptance is concretized in its Sections 7 and 23.35 According to the Government:

Based on Section 7, a private health facility owned and operated by a religious group has the option to provide the full range of modern family planning methods. However, if due to its religious convictions it shall opt not to do so, it is duty bound to immediately refer the person seeking such care to a conveniently accessible health facility which is capable of doing so.

Section 23 (a)(3) similarly affords a health care provider the right to refuse to treat a person due to his religious convictions, on the condition that he must also refer the person to another health care provider who is capable and willing to extend the service.

The RH Law excludes from its coverage private health facilities owned and operated by religious groups and health care providers, who have objections based on their religious convictions. The exemption provides that these private health facilities and health care providers cannot be compelled or coerced to provide reproductive health services when such would be in conflict with their religious beliefs.

Having the choice is the essence of religious liberty. Since these private health facilities and health care providers are not compelled to disobey their religious beliefs, their freedom of religion is not offended.36

The Government further explains that the requirement to immediately refer a person to another health facility and health care provider docs not offend religious freedom. Section 5, Article III of the 1987 Constitution is a protection against dogmatic compulsion and not a shield against civic obligations. Sections 7 and 23 (a)(3) of the RH Law generally allow private health facilities and health care providers to ref use, based on religious grounds, to extend services and in formation to persons requesting for such. This "opt-out clause" is the Government's accommodation to the religious beliefs of these private health facilities and health care providers. There is therefore no burden on their religious freedom and the "opt-out clause" does not offend the objector's religious freedom.37

For the Government, religious liberty is the freedom from coercion by the State to adhere either to a specific religion or to none at all. The act of referring a person to another health facility or health care provider is not a compulsion for the religious private health facility and health care provider either to violate their religious beliefs or to accept another's beliefs. Moreover, the accommodation afforded by the State to religion is not a shield against civic obligations, but must be balanced with another's right to health and information. That is the very purpose of the proviso that a religious private health facility or a health care provider who has a conscientious objection must nonetheless refer the patient to another non-objccting facility and health care provider.38

The position of petitioners is correct.

Estrada v. Escritor39 established the test to be used in deciding cases involving freedom of religion:

x x x in resolving claims involving religious freedom (1) benevolent neutrality or accommodation, whether mandatory or permissive, is the spirit, intent and framework underlying the religion clauses in our Constitution; and (2) in deciding a plea of exemption based on the Free Exercise Clause .... it is the compelling state interest test the strictest test, which must be applied.

In addressing the constitutionally guaranteed religious freedom of the people, the Stale should adopt an attitude or benevolent neutrality or accommodation. And on the matter of carving an exemption to the free exercise aspect of religious freedom, a compelling state interest must be shown and the least restrictive approach should be taken.

The Government essentially agrees with petitioners that the duty to refer is a condition imposed on conscientious objectors or those, who on the basis of their religious beliefs, are exempted from the legal obligations to provide a full range of modern family planning methods under Section 7. They are required to immediately refer a person seeking reproductive health care and services to another health care service provider within the same facility or one which is conveniently accessible under Section 23 (a)(3) of the RH Law. The contending parties, however, disagree on the implications of such duty to refer as a condition on a conscientious objector's right to free exercise of religion. Petitioners posit that such a condition is unconstitutional for being an undue burden on their right to freely exercise their religious beliefs, while the Government maintains that it is a constitutionally valid limitation on the religious freedom of religious objectors.

I join the majority in upholding the petitioners' position.

The duty to refer as a condition on conscientious objection is a restriction of a conscientious objector's freedom to exercise his or her religious beliefs. While a conscientious objector is allowed, on grounds of religious freedom, to be exempted from the legal obligations imposed under Sections 7 and 23 (a)(3) of the RH Law, he or she is nonetheless imposed a substitute duty, that of referral of a person seeking reproductive health care and services to another health care service provider who may be willing and able to provide a full range of modern family planning methods or reproductive health care services.

Estrada v. Escritor, in recognition of freedom of religion as a preferred right, observed the standard of strict scrutiny and required a showing by the Government of a compelling state interest to justify the curtailment of the right to freely exercise one's religious beliefs. In these present cases, the Government failed to pass strict scrutiny as it was not able to give any clear compelling state interest. Worse, as pointed out by the ponencia of Justice Mendoza, during the oral arguments, the Government did not even see the need to show a compelling state interest on the flimsy and off-tangent argument that the legal obligations imposed by the law is "an ordinary health legislation" and not a "pure free exercise matter." Yet, by recognizing conscientious objectors as constituting a class or group that is exempt from certain legal obligations under Sections 7 and 23 (a)(3), the RH Law itself acknowledges that the religious beliefs of conscientious objectors and their constitutionally guaranteed right to the free exercise of such beliefs are entitled to respect and protection. This recognition afforded by the RH Law to conscientious objectors is irreconcilable with the Government's position that the imposition of the substitute duty to refer is outside the protection afforded to free exercise. It also contradicts the Government's stance that the compelling interest test should not be applied because the accommodation given by the RH Law to conscientious objectors is justified by the standard of the balancing of the freedom of religion of conscientious objectors with the interests of patients to health and information.

The guarantee of free exercise of religion proscribes the imposition of substantial burden upon the said right absent any compelling state interest to justify the same. A governmental restriction substantially burdens religious freedom when it bans behavior that the objectors sec as religiously compelled, or mandates behavior that the objectors see as religiously prohibited.40 Requiring people to do something that "is forbidden by [their] faith" qualifies as a substantial burden on religious practice.41 "While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial" and that is so even where the relevant "conduct proscribed by a religious faith" is indirect complicity in other conduct, and the complicity line that the religious claimant draws appears inconsistent or unsound to the reviewing court because "[i]t is not for [secular courts] to say that the line [the claimant] drew was an unreasonable one."42 Thus, the law recognizes that requiring a person to do something that he or she sincerely sees as sinful is a "substantial burden" on his/her religion, and people's definition of "sinful" often includes sins of complicity and not just sins of direct action.43

Viewed under the lens of the above substantial burden standard, the substitute duty to refer imposed on conscientious objectors under Sections 7 and 23 (a)(3) is a substantial burden on a conscientious objector's right to the free exercise of religious beliefs as it mandates behavior that the objectors see as religiously prohibited even if done indirectly through complicity and not directly or personally. It places conscientious objectors in an unconscionable dilemma - either to violate the law or to violate their faith. Therefore, the substitute duty to refer under the said provisions of the RH Law violates the right to free exercise of religion of conscientious objectors. In the matter of free exercise of religion, what cannot be compelled to be done directly may also not be compelled to be done indirectly.

Religious or moral diversity in the health care profession is a public good. Preserving religious and moral diversity within the health care profession helps to guard against the tragic ethical mi stakes that occur when dissent is silenced.44 This is true as regards the free exercise of religion. This is also true as rega rd s the freedom of speech of medical practitioners.

Freedom of Speech

The right to speak - freedom of speech - is a fundamental right.45 That liberty is specifically protected under Section 4, Article III of the 1987 Constitution:

Section 4. No law shall be passed abridging the freedom of speech, of expression, or the press or the right of the people peaceably to assemble and petition the government for redress or grievances. (Emphasis supplied)

Petitioners argue that the RH Law unduly restricts the freedom of expression and compels private health care service providers which conscientiously object to the RH Law to be a mou thpiece of the Government's RH Law program. They are required under subparagraphs (1) and (3), paragraph (a) of Section 23 to participate in the information dissemination component of the Government's RH Law program, under pain of criminal sanction. The assailed provision reads:

SEC. 23. Prohibited Acts. - The follow ing acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(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 or legal, medically-safe.

non-abortifacient and effective family planning methods:

x x x           x x x          x x x

(3) Refuse to extend quality health care services and information on account of the person's marital status, gender, age, religious convictions, personal circumstances, or nature of work: Provided. That the conscientious objection of a health care service provider based on his/her ethical or religious beliefs shall be respected; however. the conscientious objector shall immediately refer the person seeking such care and services to another health care service provider within the same facility or one which is conveniently accessible: Provided. further, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344. which penalties the refusal or hospitals and medical clinics to administer appropriate initial medical treatment and support in emergency and serious cases: x x x (Emphases supplied)

The Government responds to the eontcntjon of the petitioners in this way:

Section 23 (A)(I) of the RH Law docs not violate the freedom of expression under Section 4,

Article III of the 1987 Philippine Constitution.

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The prohibition in Section 23 (A)(I) of the RH Law
is against prohibited conduct, not speech.

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It bears repeating at the outset that Congress has the inimitable power to define unlawful acts that need to be regulated or prohibited. The power to define crimes and prescribe their corresponding penalties is legislative in nature and inherent in the sovereign power of the State to maintain social order as an aspect of police power. The legislature may even forbid and penalize acts formerly considered innocent and lawful provided that no constitutional rights have been abridged.

Withholding or restricting information or providing incorrect information primarily contemplate actions and not speech. To argue otherwise on the basis that speech accompanies the prohibited conduct is to improperly de-compartmentalize the act. The rule is that conduct may be regulated even though it is intertwined with expression. The ruling of this Honorable Court in Southern Hemisphere Engagement vs. Anti-Terrorism Council is instructive:

Petitioners notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of an clement of the crime. Almost every commission of a crime entails some mincing of words on the part of the offender like in declaring to launch overt criminal acts against a victim, in haggling on the amount of ransom or conditions, or in negotiating deceitful transaction. xxx xxx xxx

Utterances not elemental but inevitably incidental to the doing or the criminal conduct alter neither the intent of the law to punish socially harmful nor the essence of the whole act as conduct and not speech.

The fact, therefore, that the conduct proscribed under Section 23 (A)(1) may be carried out accompanied with some speech docs not make it protected speech under Section 4, Article III or the Constitution. It rarely has been suggested that the constitutional freedom of speech and press extends its immunity to speech or writing used as an inte gral part of conduct in violation or a valid criminal statute. As elucidated in the leading case of Giboney v. Empire Storage & Ice Co.:

xxx But placards used as an essential and in separable part of a grave offense against an important public law cannot immunize that unlawful conduct from state control. Virginia Electric Co. v. Board, 319 U.S. 533, 319 U.S. 539; Thomas v. Collins, 323 U.S. 516, 323, U.S. 536, 323 U.S. 537, 323 U.S. 538, 323 U.S. 539-540. Nor can we say that the publication here s hould not have been restrained because of the pos sibility of separating the picketing conduct into illegal and legal parts. Thonws v. Collins, supra, at 323 U.S. 547. For the placards were to effectuate the purposes of an unlawful combination. and their sole, unlawful immediate objective was to induce Empire to violate the Missouri law by acquiescing in unlawful demands to agree not to sell ice to non-union peddlers. It is true that the agreements and course of conduct here were, as in most instances, brought about through speaking or writing. But it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. Sec e.g .. Fox v. Washington, 236 U.S. 273, 236 U.S. 277; Chaplinsky v. New Hampshire, 315 U.S. 568. Such an expansive interpretation of the constitutional guaranties or speech and pre ss would make it practically impossible ever to enforce laws against agreements in restraint of trade, as well as many other agreements and conspiracies deemed injurious to society.

Similarly in the instant case. any speech or communication used as an essential and inseparable part of a grave offense against an important public law cannot immunize that unlawful conduct from state control. To reiterate, the important public interest advanced by the RH Law is to provide accessible, effective and quality reproductive health care services to ensure maternal and child health, the health of the unborn, safe delivery and birth of healthy children, and sound replacement rate, in line with the States duty to promote the health responsible parenthood, social justice and full human development. This objective of the State will be rendered inutile without giving the people full, unbiased and accurate information about reproductive health care services. This is what Section 23 (A)(1) of the RH Law wishes to secure.

Also, it must be underscored that the RH Law promotes the ideas of informed choice and voluntarism. Informed choice and voluntarism means effective access to in formation that allows individuals to freely make their own decision upon the exercise of free choice and not obtained by any special inducements or forms of coercion or misinterpretation, based on accurate and complete information on a broad range of reproductive health services. Thus, in achieving this end, a health care service provider must act with good faith in the exercise of his or her duties. By good faith means refraining from coercing or misleading patients with incomplete, inaccurate and incorrect information. It cannot be gainsaid that the State has the right and duty to prohibit and penalize a health care service provider who acts otherwise.

Fittingly, legislative detcmination of the breadth of public interest should command respect for Congress is the constitutional body vested with the power to enact laws. Its representative composition induces judgment culled from the diverse regions of the country. Normally, this should assure that a piece of police legislation is a reflection of what public interest contemporancously encompasses.46

Section 23 (a)(1) of the RH Law declares the following acts, if committed by any health care service provider, as criminal:

(a) knowingly withholding information or restricting the dissemination or such information; and,

(b) intentionally providing incorrect information regarding programs and services on reproductive health, including the right to informed choice and access to a full range of legal, medically-sale, non-abortifacient and effective family planning methods.

Section 23 (a)(1) of the RH Law regulates both the "professional speech" and "speech as a professional" of a doctor or a health care service provider. "Professional speech" refers to the communication between doctor and patient that occurs in the course or ongoing medical consultation or treatment. It pertains to speech uttered (in the case of Section 23 (a)(1), speech either not uttered or should not have been uttered) in the course and conduct of professional practice of the doctor or health care provider.47 "Speech of/as a professional", on the other hand, is the speech made by a doctor or health care service provider to the public in general, such as an Opinion-Editorial (Op-Ed)48 piece submitted to a newspaper or a speech given in a conference or statements given during an interview.49

The prohibition against the acts covered under Section 23 (a)(1) is aimed at promoting the universal access policy of the RH Law. In particular, it mandates doctors and other health care service providers, when speaking to a specific client or to the public at large, to provide and disseminate full information on modern family planning methods, especially the use of IUDs and contraceptives, in line with the Government's universal access policy. In accordance with Section 23 (a)(1), doctors and other health care service providers must give patients and the public alike information and advice on the merits of reproductive health, the benefits of family planning, and the advantages of the use of contraceptives as "legal, medically-safe, non-abortifacient and effective family planning methods". Thus, the Government has determined the content of the information to be given and disseminated by doctors and health care service providers.

In its proper context, the prohibited act of either withholding or restricting the dissemination of information on reproductive health covers the decision of a doctor or a health care service provider in his/her personal and professional capacity not to indorse or unfavorably talk about the use of contraceptives. On the other hand, the prohibited act of "intentionally providing incorrect information" on reproductive health programs and services logically covers the medical opinion of a doctor that is critical of the use of contraceptives and contradicts the FDA, such as giving advice that the use of IUDs and contraceptives may be unhealthy to women. Thus, Section 23 (a)(1) of the RH Law includes both the act of not giving the Government-mandated information and the act of giving information contrary to or different from that mandated by the Government, whether the basis of the doctor or health care service provider is his or her religious belief or professional opinion. In this connection, it is worth noting that there is no provision to accommodate the conscientious objector under Section 23 (a)(1). Nor does Section 23 (a)(1) have room for a doctor or health care service provider who acts against the said provision on the ground of that doctor's well-considered professional opinion.

Under Section 23 (a)(1), the dissemination or information is strictly regimented. Every doctor or health care provider should walk in unison and march in cadence to the RH Law's tune. Under pain of criminal prosecution, no doctor or health care service provider may refuse to march, or follow the beat of a different drummer, or hum his own tune. In practical application, regardless of their religious convictions, it is felonious for doctors and other health care service providers to talk of natural family planning only or to limit their advice, whether in personal or professional capacity, to natural methods of family planning only. Regardless or their religious convictions and professional opinion, too, it is criminal for them to make statements about the risks IUDs and contraceptives pose to both the unborn and the mother where the FDA has already made a determination that such IUDs and contraceptives are "legal , medically-safe, non-abortifacient and effective family planning methods."

Thus, Section 23 (a)(1) effectively compels the doctor or health care provider to make a speech that promotes the Government's RH Law program, particularly the use of contraceptive drugs and devices, regardless of the doctor's religious conviction or well-considered professional opinion. lt dictates upon the doctor what should. be said and what should not be said in matters of reproductive health. In other words , Section 23 (a)(1) requires the doctor or health care service provider to make a compelled speech, a speech that may be against the doctor's spiritual belief or professional opinion. Moreover, the threat of criminal sanction enhances the chilling effect of the law and serves to deter a health care service provider Crom expressing his professional views or exercising his religious reservations.

The ratiocination of the Government utilizing the speech-conduct dichotomy does not hold water. In particular, the Government characterizes the acts punished under Section 23 (a)(1) (namely, withholding or restricting information or providing incorrect information) as conduct, not speech, and therefore not covered by the constitutional guarantee on freedom of specch.50

However, the "conduct" penalized under Section 23 (a)(1) is essentially the act of not speakipg or speaking against the Government's RH Law message, particularly abput artificial methods of family planning. What the law punishes, therefore, is the assertion by the doctor or health care service provider of his or her freedom of the mind as a professional.

The freedom of speech is a protection of the individual's freedom of thought and it includes both the right to speak freely and the right to refrain from speaking at all. The right to speak and the right to refrain from speaking are complementary components of the broader concept of "individual freedom of mind."51 In other words, the freedom of speech guarantees that no person can be compelled by the Government to carry and convey the Government's ideology.

Compelled speech is not free speech. One who is free to speak cannot be made to say something against his will or violative of his beliefs. The Government may not require a person to subscribe to and promote the Government's ideology. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes freedom of exprcssion.52

Indeed, "a society that tells its doctors under pain of criminal penalty what they may not tell their patients is not a free society."53 The RH Law, however, precisely does that to our society. It dictates upon the doctor what to tell his/her patients in matters of family planning, and threatens the doctor with criminal prosecution in case of non-compliance. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or to manipulate the public debate through coercion rather than persuasion.54

The value of free speech concerning the matter of the RH Law for health care providers in the marketplace of ideas is significant:

The driving force and strongest argument for retaining room for moral refusers in the profession is the fact that many or the issues facing physicians raises metaphysical questions entirely immune to empirical testing or any other comprehensive doctrine for distinguishing right from wrong .... We benefit from maintaining diverse viewpoints, excluding only arguments that are entirely illogical. for the ensuing debate will help siphon out the most accurate version of moral truth as errors are revealed and persuasive arguments are strengthened through their collision with error.55

Chavez v. Gonzales56 further expounds on the constitutional value or free speech:

Freedom of speech and or the press means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter of public consequence. When atrophied, the right becomes meaningless. The right bcfongs as well -- if not more -- to those who question, who do not conform, who differ. The ideas that may be expressed under this freedom are confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view "induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us.57

To allow the Government to target particular views or subjects permits the Government to greatly distort the marketplace of ideas.58 Worse, to impose the Government's ideology and restrict the available speech in the market only to Government-manufactured and mandated speech is a monopoly of ideas that is anathema to and destructive of a marketplace. It defeats the public good, particularly that of a free and diverse civil society whose institutions help shape individuals and provide alternatives to publicly defined conceptions of the human and civic good.59 Thus, information on RH matters that is strictly regimented and severely regulated by the Government stunts rather than promotes fully informed decisions.

The rule is that a content-based regulation "bears a heavy presumption of invalidity and is measured against the clear and present danger rule." It will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague.60

Section 23 (a)(1), a content-based regulation, is heavily burdened by a presumption of unconstitutionality. Placed under the test of strict scrutiny,61 the Government miserably failed to advance a compelling reason that would overcome the presumption of the RH Law's invalidity. The Government simply invokes the universal access policy but such policy may be advanced without unnecessarily curtailing the right of the doctors or health care service providers to speak their minds freely, and not what the Government commands. In particular, doctors or health care service providers could have been allowed to express their considered professional opinion with the requirement to disclose the fact that their opinion differs from the Government's stand or policy in order to ensure a free and well-informed decision on the matter. Moreover, the overly broad and vague language of Section 23 (a)(1) primarily contributes to the negative chilling impact of that provision on even the health care service provider's "speech as a professional."

The Government also failed to show that speech may be compelled or restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to prevent. There is no demonstration of evil consequences sought to be prevented which are substantive, extremely serious and highly imminent.62 In other words, no clear and present danger to be prevented has been established.

All told, Section 23 (a)(1) of the RH Law, a tool to promote the universal access policy established in Section 7 of that law, constitutes an undue and unconstitutional restriction of the freedom of speech.

Section 23 (a)(1) of the RH Law is constitutionally infirm on another ground. It defeats and contradicts the RH Law's own declared policy in the first paragraph of its Section 2 that the State recognizes and guarantees the right of all persons "to education and information, and the right to choose and make decisions for themselves in accordance with their religious convictions, ethics, cultural beliefs, and the demands of responsible parenthood," as well as the guiding principle in its Section 3 that the "right to make free and informed decisions, which is central to the exercise of any right, shall not be subjected to any form of coercion and must be fully guaranteed by the State, like the right itself." More importantly, it deprives the people of their constitutional right to information on matters of public concern, which is guaranteed under Section 7, A1iicle III of the 1987 Constitution. The doctors are being coerced to toe the line in RH matters by compelling them, under pain of criminal sanction, to promote the Government's RH Law program and prohibiting them from contradicting the said government-sponsored RH Law program, even if it may go against his well-studied professional opinion. It therefore denies the target beneficiary of the program, the recipients of contraceptive drugs and devices, or valuable information that is the premise of the right to make a truly free and fully informed decision on a matter affecting the right to life of the unborn and a woman's right to health. Informed decision-making involves informed consent and there can be no real informed consent until and unless one is provided full information about the benefits, risks and alternatives, taking into account the person's physical well-being, personal circumstances, beliefs, and priorities.

The RH Law and the Sanctity of the Family

The RH Law has a substantial and significant impact on the declared State policy on family in Section 12, Article II of the 1987 Constitution:

Section 12. 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. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.

The above constitutional provision has three interrelated and complementary parts.

First, it is a recognition of the family as a basic autonomous social institution. It is an assertion that the family is anterior to the State and not a creation of the State. It is a guarantee that the family may not be subjected to instrumentalization by the State.63

Second, it is a guarantee of equal protection to the lives of both the mother and the unborn. The unborn's en titlement to protection commences "from conception," that is, from the moment of conception. The intention is to protect life from its beginning, and the assumption is that human life begins at conception and that conception takes place at fertilization. While it does not assert with certainty when human life precisely begins, it reflects the view that, in dealing with the protection of life, it is necessary to take the safer approach.64

The provision on the protection of the unborn is an affirmation that, save in emergency or serious cases where the life of the mother is at stake, the life of the unborn may not be sacrificed merely to save the mother from emotional suffering or to spare the child from a life of poverty. Moreover, the provision is intended to prevent the adoption by the State of the doctrine in Roe v. Wade,65 the American abortion case.66

Third, it is a n acknowledgment of the natural right and duty of parents, as heads of the family, in preparing their children for a socially useful and upright life. The 1987 Constitution modifies the right and duty of parents "in the rearing of the youth for civic efficiency and the development of moral character" under the 1935 and 1973 Constitutions and characterizes such right and duty not only as "natural" but also as "primary." Such modification means that the right and duty of parents is superior to and precedes that of the State.67

In the exercise of their natural right and duty, parents are entitled to the support of laws designed to aid them in the discharge of their responsibility. Moreover, in recognition of the supporting role of the State in the upbringing of the children, the law recognizes in the State a power of control over the conduct of children which reaches beyond the scope or its authority over adults.68

To further emphasize the importance of the family as an institution in our society, for the first time in our constitutional history, the Constitution devoted an entire Article on the family, Article XV:

Article XV
The Family

Section 1. The State recognizes the Filipino family as the foundation or the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.

Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.

Section 3. The State shall defend:

1. The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood;

2. The right or children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development:

3. The right or the family to a family living wage and income: and

4. The right of families or family associations to participate in the planning and implementation of policies and programs that affect them.

Section 4. The family has the duty to care for its elderly members but the Stak may also do so through just programs of social security.

The significance of Article XV is explained by Justice Cecilia Muñoz Palma, President of the Constitutional Commission which drafted the 1987 Constitution, to wit:

For the first time, the Constitution devotes a separate Article on the Family there by giving due recognition to the fact that the family is a basic autonomous social institution and. therefore, the State shall uphold the sanctity of family life, protect the stability of marriage and the right to found a family in accordance with one's religious beliefs and convictions, and responsible parenthood. At this time in the history not only of our country but of all mankind when the institution of the family is subjected to assaults against its inherent dignity as an instrument to God's creation constitutional provisions which give protection and guarantees to rights and duties of parents are safeguards against the erosion of moral and spiritual values.69

Together, Section 12, Article II, and the entire Article XV are the provisions relating to the family or "Family Provisions" of the Constitution. They form one of the common threads that runs through the instant petitions. Also, these Family Provisions purport to be the heart of the RH Law as they are among the declared policies of the law. Upon careful dissection in the pleadings of the parties, the oral arguments, and the deliberations of the members of the Court, that heart has been exposed as artificial and incapable of sustaining the RH Law's Family Provisions.

The RH Law as worded contradicts the constitutional text of the Family Provisions as well as the established constitutional principles on the family. The pertinent policy declarations are contained in Section 2 of the RH Law quoted hereunder:

SEC. 2. Declaration of Policy. - xx x

Moreover, the State recognizes and guarantees the promotion of gender equality, gender equity, women empowerment and dignity as a health and human rights concern and as a social responsibility. The advancement and protection of women's human rights shall be central to the efforts of the State to address reproductive health care.

x x x           x x x          x x x

The State likewise guarantees universal access to mcdically-safe, non-abortifacicnt, effective, legal, affordable, and quality reproductive health care services, methods, devices, supplies which do not prevent the implantation of a fertilized ovum as determined by the Food and Drug Administration (FDA) and relevant information and education thereon according to the priority needs of women, children and other underprivileged sectors, giving preferential access to those identified through the National Household Targeting System for Poverty Reduction (NHTS-PR) and other government measures of identifying marginalization, who shall be voluntary beneficiaries of reproductive health care, services and supplies for free.

As will be shown below, in relation to other provisions of the RH Law, the guarantee of "universal access" to so-called "medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive health care services, methods, devices, supplies" ensured by the RH Law provisions contradicts or, at the very least, seriously impairs the constitutional protections extended Lo the family.

Spousal Consent

The RH Law mounts an attack on the sanctity of the family on two fronts, one of which is through its penal provision, particularly Section 23 (a). Acts of health care service providers, whether public or private, that will impede or prevent the universal access policy are meted penal sanction. Also, the spousal consent requirement under Section 23 (a)(2)(i) negatively impacts on the family, in general, and on the relationship of the spouses, in particular. Thus, the RH Law's war on the family has great collateral damage, particularly on the married spouses and on minors.

An essential and necessary element of the constitutional protection for the family is the duty and undertaking of the State to "strengthen its solidarity" by, among others, defending the "right or spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood."70

In line with the duty of the State to defend the right of spouses to found a family, as well as with the constitutional recognition or the fundamental equality before the law of women and men,71 the Family Code has adopted the theory of unity or direction, under which the spouses enjoy legal equality, and discarded the doctrine of marital authority or the husband under the Civil Code.72

Among the manifestations of the theory of unity of direction in the Family Code are the joint authority of husband and wife to fix the family domicile,73 the joint responsibility of the spouses to support the family,74 the mutual right and duty of the spouses in the management of the household,75 the joint administration and enjoyment by the spouses of the community property or conjugal partnership,76 and the joint parental authority of the father and the mother over the persons of their common children.77

With respect to the founding of a family, Section 19 (c) of Republic Act No. 9710, otherwise known as the "Magna Carta of Women," provides that women shall have equal rights in all matters relating to marriage and family relations, including the "joint decision on the number and spacing or their children." Another specific provision of the Family Code recognizing the theory of unity of direction in relation to the right of the spouses to found a family is the requirement under Article 164 of that law that both spouses must authorize a decision to have a child through artificial insemination.78 Also, Republic Act No. 8552, otherwise known as the "Domestic Adoption Act of 1988," mandates that, as a rule, husband and wife shall adopt jointly.79 These provisions recognize that the right to found a family pertains to both of the spouses and should be exercised by them jointly. They are an acknowledgment that the right to sexual intimacy mutually pertains to the spouses and, therefore, the concomitant right to procreate mutually pertains to the spouses and are jointly decided by them. A marriage cannot be viewed as harmonious if the marriage partners are fundamentally divided on the important and vital issue of having children. The RH Law is cognizant of this when it refers to "responsible parenthood" as "a shared responsibility between parents to determine and achieve the desired number of children, spacing and timing of their children according to their own family life aspirations, taking into account psychological preparedness, health status, sociocultural and economic concerns consistent with their religious convictions."80

Another relevant constitutional principle is the fundamental equality before the law of men and women under Section 14, Article II of the 1987 Constitution:

Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.

As discussed above, the Family Code provisions reflecting the theory of unity of direction of the spouses operate on the principle that the husband and the wife enjoy equality before the law, that is, a parity of rights and obligations.81

In connection with the women's right to health, the pertinent part of Section 17 of the Magna Carta of Women provides:

Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State shall, at all times, provide for a comprehensive culture-sensitive, and gender-responsive health services and programs covering all stages of a woman's life cycle and which addresses the major causes of women's mortality and morbidity: Provided, That in the provision for comprehensive health services, due respect shall he accorded to women's religious convictions, the rights of the spouses to found a family in accordance with their religious convictions, and the demands of responsible parenthood, and the right of women to protection from hazardous drugs, devices, interventions, and substances. x x x (Emphasis supplied)

Section 17 of the Magna Carta of Women is clear in its recognition that the right to health of a woman is qualified by various factors , including the "right of the spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood." It therefore takes into due consideration the concern that, when the right to health of a married woman will have implications on her rights and obligations as a wife and/or a mother, her right to health is important to her not merely as an individual woman but as a spouse and as a parent.

Yet, Section 23 (a)(2)(i) of the RII Law provides:

SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

x x x           x x x          x x x

(2) Refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the ground of lack of consent or authorization of the following persons in the following instances:

(i) Spousal consent in case or married persons:

Provided That in case of disagreement the decision of the one undergoing the procedure shall prevail; x x x

As worded, Section 23 (a)(2)(i) allows one of the spouses to undergo reproductive health procedures without need of the consent of the other spouse. The provision does away with spousal consent. Under pain of criminal sanction, it prohibits any health care service provider from refusing to perform reproductive health procedures on any married person on the ground of lack of spousal consent or authorization. In other words, lack of spousal consent or authorization may not be invoked by a health care service provider as a ground to refuse to perform reproductive health procedures on a married person. The proviso even strengthens the dispensable nature of the consent of the other spouse because the decision of the one undergoing the procedure trumps the other spouse's opposition.

Clearly, on its face, Section 23 (a)(2)(i) contradicts the unity of direction of the spouses, conflicts with the solidarity or the family, and collides with the fundamental equality before the law of men and women. In particular, it goes against the constitutional right of the spouses to found a family and to jointly decide on the number and spacing of their children. Rather than fostering unity between the spouses, it tends to foment discord and sow division between them.

Parental Authority

The second front, through which the attack on the sanctity of the family is mounted, is Section 7 of the RH Law. The belligerent act consists of the provision's effect of giving substance to the ‘RH rights' and its categorical mandate that "In lo person shall be denied information and access to family planning services, whether natural or artificial," except a minor who has not secured a written parental or guardian's consent, but the said consent is dispensed with if the minor is already a parent, or has had a miscarriage. The provision states:

SEC. 7. Access to Family Planning. - All accredited public health facilities shall provide a full range of modern family planning methods, which shall also include medical consultations 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 patients with the option to grant free care and services to indigents, except in the case of non-maternity specialty hospitals and hospitals owned and operated by a religious group but they have the option to provide such full range of modern family planning methods: Provided, fi1rther, That these hospitals shall immediately refer the person seeking such care and services to another health facility which is conveniently accessible: Provided, finally, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344.

No person shall be denied information and access to family planning services, whether natural or artificial: Provided, That minors will not be allowed access to modern methods of family planning without written consent from their parents or guardian/s except when the minor is already a parent or has had a miscarriage. (Emphases supplied)

The RH Law mandates that "no person shall be denied information and access to family planning services, whether natural or artificial."82 Minors are supposed to be excluded from the said mandate but this exclusion is diluted by the same provision. While it requires minors to secure written parental or guardian's consent before they can have access to family planning services, any minor who is already a parent or has had a miscarriage may have access to modern family planning methods without need of written parental consent. The said exception to the requirement of written parental consent is objectionable on constitutional ground.

The full significance of this exemption from parental consent can be understood better in the light of the following provisions of the Family Code, as amended by Republic Act No. 6809:

Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided. majority commences at the age of eighteen years.

x x x           x x x          x x x

Art. 236. Emancipation shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life, save the exceptions established by existing laws in special cases.

Contracting marriage shall require parental consent until the age of twenty-one.

Nothing in this Code shall be construed to derogate from the duty or responsibility of parents and guardians for children and wards below twenty-one years of age mentioned in the second and third paragraphs of Article 2180 of the Civil Code. (Emphases supplied)

For purposes of marriage, the person who is already emancipated but is below 21 years old still requires parental consent.83 Thus, a person who is no longer under parental authority of his or her parents for being already or legal age but below 21 years of age still cannot exercise the right to sexual intimacy in marriage unless he or she has parental consent. For such person, parental consent is indispensable even if he or she is already a parent or has had miscarriage. Yet, under the RH Law, a minor, who is still under parental authority of his or her parents as he or she is not yet emancipated, can exercise the 'right' to sexual intimacy simply because he or she is already a parent or she has had a miscarriage. Therefore, through the RH Law, the Government gives such minors freedom from parental authority and the opportunity, if not a license, to further engage in the sexual act by virtue of their entitlement under the RH Law to have access to modern methods of family planning. The RH Law therefore recognizes that such minors, regardless of their young age, are entitled to "responsible, safe, consensual and satisfying sex life" and that "they have the capability to reproduce and the freedom to decide if, when, and how often to do so,"84 without need of parental consent.

The overly liberal stance or the RH Law as regards the access of minors, who are already parents or have had a miscarriage, to modern family planning methods without need of parental consent is contrary to the provision of Section 12, Article II of the 1987 Constitution. It is also seriously doubtful if the elimination of the requirement for parental consent with redound to the best interest of the class of minors mentioned in the RH Law. This Court has already ruled in Mafto v. People85:

A child cannot give consent to a contract under our civil laws. This is on the rationale that she can easily be the victim of fraud as she is not capable of fully understanding or knowing tbe nature or import or her actions. The State, as parens patriae, is under the obligation to minimize the risk of harm to those who, because or their minority, are as yet unable to take care of themselves fully. Those of tender years deserve its protection.

The harm which results from a child's bad decision in a sexual encounter may be infinitely more damaging to her than a bad business deal. Thus, the law should protect her from the harmful consequences of her attempts at adult sexual behavior. For this reason, a child should not be deemed to have validly consented to adult sexual activity and to surrender herself in the act of ultimate physical intimacy under a law which seeks to afford her special protection against abuse, exploitation and discrimination. x x x In other words, a child is presumed by law to be incapable of giving rational consent to any lascivious act or sexual intercourse.

This must be so if we are to be true to the constitutionally enshrined State policy to promote the physical, moral, spiritual, intellectual and social well-being of the youth. (Emphases supplied)

Another anomalous and absurd consequence of the RH Law's exemption of minors who are already parents or have had miscarriage is undue inequality of treatment. It violates the right of minors to equal protection because the classification it creates is not based on any substantial distinction.86 The fact that the said minors are themselves already parents or have had a miscarriage docs not make them less of a minor. Nor docs it emancipate them. In fact, such minors, by virtue of their situation as minors who are at the same time parents or who have undergone the traumatic experience of miscarriage, are more vulnerable to conditions that will adversely affect their development. They have a stronger need for the advice and support of their family, particularly of their parents. Yet, Section 7 of the RH Law treats them as if they are no longer minors and already emancipated from parental authority. By depriving the parents of these minors of their authority with respect to something that may be life-defining for the said minors, the latter are likewise deprived of the instruction, guidance and counsel of their parents on a very important matter. Such minors are effectively denied of their constitutional right as children to assistance and special protection from conditions that may be prejudicial to their development.87

The other side of the coin, which is the access of certain minors to modem family planning methods without need of parental consent, is the collateral damage on what the Constitution recognizes as the "primary and natural right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character."88

Parents have a fundamental liberty interest in the care, custody and management of their child.89

In this connection, Article 209 of the Family Code provides:

Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.

Parental authority is that mass of rights and obligations which the law confers on parents for the purpose of the children's physical preservation and development, as well as the cultivation of their intellect and the education of their hearts and minds.90 In particular, it consists of the following rights and duties:

Art. 220. The parents and those exercising parental authority shall have with the respect to their unernancipated children on wards the following rights and duties:

(1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means:

(2) To give them love and affection, advice and counsel companionship and understanding;

(3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship;

(4) To enhance, protect, preserve and maintain their physical and mental health at all times;

(5) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from had company, and prevent them from acquiring habits detrimental to their health, studies and morals;

(6) To represent them in all matters affecting their interests:

(7) To demand from them respect and obedience;

(8) To impose discipline on them as may he required under the circumstances; and

(9) To perform such other duties as are imposed by law upon parents and guardians.91 (Emphases supplied)

Parental consent is the tangible manifestation of the exercise of parental authority with respect to the access by minors to modern methods of family planning. Parents are naturally and primarily interested in the welfare of their children and the parental consent requirement is an appropriate method of giving the parents an opportunity to foster that welfare by helping their minor child to make and adopt a correct decision, especially when that child is distressed for being already a parent or having had a miscarriage.

Our existing laws governing the suspension or termination of parental authority reflects the constitutional rule on the natural and primary right of parents in the rearing of their children.92 They show that termination or parental authority is such a drastic step that it can be allowed on the basis of justifiable legal grounds provided by law, such as, emancipation of the child, death of either the parent or the child, adoption of the child, appointment or a general guardian for the child, judicial declaration of abandonment or the child, final judgment of a competent court divesting the parent of parental conviction of the parent of a crime with civil interdiction as an accessory penalty, excessive harshness or cruelty of the parent towards the child, giving the child corrupting orders, compelling the child to beg, subjecting the child to acts of lasciviousness, etc.93

Doing away with parental consent in connection with a minor's access to so-called modern methods of family planning, like IUDs and contraceptive drugs and devices, means taking away parental authority in the said area. However, the conditions which trigger the partial loss of parental authority under the RH Law (that is, that minors either already have children or have had miscarriage) are unreasonable and insufficient to justify the restriction of parental authority imposed by the said law.

The education of the children, the vigilance over their conduct, and the formation of their character, are very essential parts of the mission and vocation of the parents.94 In giving minors who are already parents or have had miscarriage access to modern methods of family planning or "safe, effective, non-abortifacient and legal methods, whether natural or artificial, that are registered with the FDA, to plan pregnancy" without need of parental consent, the Government is disregarding the natural and primary right and duty of parents to exercise parental authority over the said minors. The matter of access of such minors to modern methods of family planning is something that is of great consequence to the said minor children and their respective families. Yet, the Government usurps the natural and primary right of the parents of such minors who are obligated to educate and instruct their children by right precept and good example; to give them advice and counsel; to provide them with moral and spiritual guidance; to furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits that may be detrimental to their health, studies and morals; and, to represent them in all matters affecting their interests.

While not all deprivations of rights or liberty are constitutionally proscribed but only deprivations without due process of law,95 the fundamental right to parental authority over their minor children has been taken away from the parents without due process of law. It is neither fair nor just to ascribe the condition of a minor of either already having a child or having had a miscarriage as a fault or shortcoming of the parents as to outrightly or by operation of law deprive the latter of their natural and primary right. There is therefore no compelling interest, or even rational basis, to deprive parents of their constitutionally recognized natural and primary right to rear their children under the circumstances provided in the proviso of the second paragraph of Section 7 of the RH Law.

In this connection, the second sentence of Section 23 (a)(2)(ii) expands the infringement on parental authority caused by Section 7, as the said section requires parental consent only in elective surgical procedures. For the same grounds mentioned above, this provision also suffers from constitutional infirmity.

The RH Law: Devaluing Society's Values

It is the very purpose of a Constitution - and particularly of the Bill of Rights - to declare certain values transcendent, beyond the reach of temporary political rnajorities.96

The question of constitutionality is not a matter of popularity or public perception but of consistency with the constitutional text and principles. It is not determined at the polls or by surveys but by adherence to the Constitution. Thus, while policies crafted by the legislative and executive departments may cater to the public clamor, constitutional construction by courts caters solely to constitutional text and intent.

To reiterate, the Constitution is the fundamental expression of our democratic principles and deeply-held values as a people. Thus, we adopt the following principles which are in harmony with the constitutionally mandated power of the Judiciary:

The Court's job is to preserve our society's values, as those values are embodied in a Constitution which provides a floor below which the citizenry cannot choose to descend.97

x x x x x

A Madisonian system [of rule by the majority and respect for the rights of the minority avoids either minority or majority tyranny by giving substantial power to the majority while preserving basic rights for the minority. In such a system, the judges are simply imposing their own values and engaging in judicial tyranny, unless they can derive their conclusions from the Constitution's values and not simply their own.98

Bearing the above fundamental premises in mind, the constitutionality of the RH Law ought to be judged based on its implications on the relevant and treasured values of the Filipino society as shown by the Filipino people's history and tradition as enshrined in the Constitution. These cherished values are as follows: the sanctity of the family; the natural joint right of the spouses to found a family; the natural and primary right and duty of parents in the rearing of their children; and the right to health or the people, particularly of women; and the fundamental equality before the law of women and men. These transcendental values include the protection or the freedom of religion and freedom of speech.

As discussed above, on its face and as worded, certain provisions of the RH Law do not promote the said values but instead undermine them. The RH Law dilutes the traditional prerogatives of spouses, defeats the unity or direction of the spouses and erodes the natural and primary right of parents in the rearing of their children through its respective provisions on spousal and parental consent.

On its face and as worded, certain provisions of the RH Law run counter to the freedom of religion and freedom of speech of physicians and health care service providers whose spiritual belief or considered professional opinion differs from the law's policy and program on reproductive health.

As certain provisions of the RH Law, on its face and as worded, contradicts the constitutional values which we have sworn to protect and promote, those provisions of the RH Law must be invalidated if this Court is to be faithful to its duty to preserve our nation's deeply-held values.

In view of the foregoing reasons, I agree with Justice Jose C. Mendoza that the following provisions of Republic Act No. 10354, otherwise known as "The Responsible Parenthood and Reproductive Health Act of 2012," should be declared UNCONSTITUTIONAL and, therefore, null and void:

(1) Section 7 insofar as it (a) requires 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 condition as defined under Republic Act No. 8344, to another facility which is conveniently accessible, and (b) allows minor-parents and minors who have had a miscarriage access to modern methods of family planning without the written consent of their parents or guardian/s;

(2) Section 23 (a)(1) insofar as it penalizes any health care service provider, whether public or private, who shall knowingly withhold information or restrict the dissemination therof, and/or intentionally provide incorrect information regarding programs and services on reproductive health;

(3) Section 23 (a)(2) insofar as it penalizes any health care service provider who refuses to perform reproductive health procedures on account of his or her religious beliefs;

(4) Section 23 (a)(2)(i) insofar as it allows a married individual, not in an emergency or life-threatening condition, as defined In Republic Act No. 8344, to undergo reproductive health procedures without the consent or the spouse;

(5) Section 23 (a)(2)(ii), second sentence insofar as it penalizes a health care service provider, whether private or public, for requiring written parental consent from minors before undergoing reproductive health procedures, except only in elective surgical procedures;

(6) Section 23 (a)(3) insofar as it punishes any health care 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 health care service provider within the same facility or one which is conveniently accessible regardless of his or her religious beliefs;

(7) Section 23 (b) insofar as it punishes 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;

(8) Section 17 regarding the rendition of pro bono reproductive health service insofar as they affect the conscientious objector in securing Philhealth accreditation; and

(9) Section 3.01 (a) and (j) of the IRR insofar as it uses the qualifier "primarily" for contradicting Section 4 (a) of the RH Law and violating Section 12, Article II of the 1987 Constitution.

Section 9 of the RH Law insofar as its first sentence directs that hormonal contraceptives and intrauterine devices shall be included in the National Drug Formulary should neither be interpreted as mandatory nor as an infallible legislative pronouncement that they are "safe, legal and non-abortifacient," as compliance with these prerequisites cannot be legislated by law but is dependent on expert scientific evaluation. Likewise, the law cannot foreclose or predict the outcome of future scientific study on this matter.

A final note: 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.

TERESITA J. LEONARDO-DE CASTRO
Associate Justice


Footnotes

1 Statement dated December 29, 2012 of Deputy Presidential Spokesperson Abigail Valte on the RH Law, http//www.gov.ph/2012/12/29/statement-the-deputy-presidential-spokesperson-on-the-resnonsible-parenthood-and-reproductive-health-act-of-2012/, last visited September 30, 2013.

2 Section 4 (s). RH LAW.

3 Section 2, RH Law.

4 Consolidated Comment, p. 4.

5 Id. at 5.

6 Id.

7 O’ Grady, Catherine, The Role of Speculation in Facial Challenges, 53 ARIZ, L. REV. 867, 871 (2011).

8 Rosenkranz, Nicholas Quinn, The Subjects of the Constitution, 62 STAN. L.REV. 1209, 1238 (2010).

9 421 Phil. 290 (2001).

10 Consolidated Comment, p. 16.

11 United States v. Salerno, 481 U.S. 739 (1987).

12 Id. at 745.

13 Romualdez v. Commission on Uections. 576 Phil. 357, 453 (2008), Tinga, J. dissenting. More recent proof of this is Richard Fallon, Jr.'s Fact and Fiction About Facial Challenges, 99 CAL. L.REV. 915. 9I7(2011) (claiming that facial challenges to statutes are common, not anomalous).

14 Id. at 454.

15 G.R. Nos. 192935 & 193036, December 7, 2010. 637 SCRA 78. While what was involved in this case was Executive Order No. 1, an executive issuance and not a legislative enactment, the point is that the Court actually engaged in a facial invalidation without reference to the standard of "no set of circumstances exists under which the [law or provision] would be valid."

16 Borgmann, Caitlin, Holding, Legislatures Constitutionally Accountable Through Facial Challenges, 36 HASTING CONST. L.Q. 563, 565 (2009).

17 Id. at 566, quoting Richard Fallon. Jr.’s As-Applied and Facial Challenges and Third Party Standing, 113 HARV. L.REV. 1321, 1352 (2000).

18 Section 3 (m) provides: "(m) Gender equality and women empowerment are central elements or reproductive health and population and development: x x x"

19 Section 27 provides: "SEC. 27. Interpretation Clause. - This Act shall be liberally construed to ensure the provision, delivery and access to reproductive health care services, and to promote, protect and fulfill women's reproductive health and rights."

20 Bernas, Joaquin, THE 1987 CONSTlTUTlON OF THE REPUBLIC OF THE PHILIPINES A COMMENTARY (2009), p. 1270.

21 See Section 2, Article II, 1987 Constitution.

22 Section 4 (p), RH Law.

23 Petition for Prohibition in G.R. No. 204934. pp. 24 -26.

24 Petition for Certiorari and Prohibition in G.R. No. 204988. p. 12.

25 Petition in G.R. No. 205478, pp. 11-12.

26 Petition for Certiorari and Prohibition in G.R. No. 205720. pp. 28-31.

27 Consolidated Comment, pp. 50-55.

28 Bernas, supra note 20 at 84.

29 IV RECORDS 707.

30 Id. at 802.

31 Section 4(f), RULES OF PROCEDURE IN ENVIRONMENTAL CASES.

32 Annotation to the Rules or Procedure for Environmental Cases.

33 Otherwise known as "An Act to Regulate the Sale, Dispensation and /or Distribution of Contraceptive Drugs and Devices."

34 See Section 23 (a), RH Law in conjunction with Section 4 (n), RH Law.

35 Consolidated Comment, pp. 56-58.

36 Id. at 58.

37 Id. at 58 -59.

38 Id. at 59-62.

39 A .M. No. P-02-1651 (Formerly OCA I.P.I. No.00-1021-P), June 22, 2006.

40 Volokh Eugene. What is the Religious Freedom Restoration Act?,citing Sherbert v. Verner (374 U.S. 398 [1963]) and Wisconsin v. Yoder (406 U.S. 205 [1972]), posted on December 2, 2013.

www.volokh .com/2013/12/02/la-religious-freedom-restoration-act/, last visited April 7, 2014.

41 Volokh Eugene, A Brief Note on the "Substantial Burden" Requirement, citing United States v. Lee (455 U.S. 252 [1982]) and Hernandez v. Commissioner (490 U.S. 680 [1989]), posted on December 5, 2013, www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx, lmit visited April 7, 2014.

42 Id. quoting Thomas v. Review Board of the Indiana Employment Security Division (450 U.S. 707 [1981]).

43 Volokh Eugene, Hobby Lobby, the Employer Mandate, and Religious Exemptions posted on December 2, 2013. www.volokh.com/2013/12/02/hobby-lobby-employer-mandate-religious­exemptions/, last visited April 7, 2014.

44 Galston, William and Melissa Rogers, Health Care Providers' Consciences and Patients’ Need: The Quest for Balance, http://www.brookings.edu/-/media/research/files/papers/2012/2/23%20health% 20care%20galston%20rogers/0223 health care galston rogers.pdf, last accessed on November 11, 2013.

45 See Social Weather Stations, Inc. v. Commission on Elections, 409 Phil. 571, 590 (2001) speaking of the "fundamental right of expression": and MVRS Publications, Inc. v. Islamic Da'wah Council of the Philippines. Inc., 444 Phil. 230, 253 (2003), speaking of the "fundamental right to free speech".

46 Consolidated Comment, pp. 79-82.

47 See Post, Robert, Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech, U.ILL. L.REV. 939, 947 (2007).

48 Id.

49 Id.

50 Consolidated Comment, pp. 79-82.

51 Wooley v. Maynard, 430 U.S. 705, 714 (1977).

52 Turner Broadcastiing System v. Federal Communication Commission, 512 U.S. 622, 640 (1994).

53 Poe v. Ullman, 367 U.S. 497 (1961), Douglas, J., dissenting.

54 Turner Broadcasting System v. Federal Communication Commission, supra note 52 at 641.

55 Holly Fernandez Lynch, CONFLICTS OF CONSCIENCE IN HEALTH CARE AN INSTITUTIONAL COMPROMISE, pp. 84-85, cited in Galston and Rogers, supra note 44.

56 569 Phil. 155 (2008).

57 Id. at 197-198.

58 Chemerinsky, Erwin, CONSTITUTIONAL, LAWS: PRINCIPLES AND POLICIES, p. 934 (2006).

59 Galston and Rogers, supra note 44.

60 Chavez v. Gonzales, supra note 56 at 207-208.

61 See Newsounds Broadcasting Network. Inc. v. Dy, G.R. Nos. 170270 & 179411, April 2, 2009. 583 SCRA 333, 355. In particular, the Court said in this case:

The Court is of the position that the actions of the respondents warrant heightened or strict scrutiny from the Court, the test which we have deemed appropriate in assessing content-based restrictions on free speech, as well as for laws dealing with freedom of the mind or restricting the political process. of laws dealing with the regulation of speech. gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection. The immediate implication of the application or the "strict scrutiny" test is that the burden falls upon respondents as agents of government to prove that their actions do not infringe upon petitoinners' constitutional rights. As content regulation cannot he done in the absence of any compelling reason, the burden lies with the government to establish such compelling reason to infringe the right to free expression.

62 Chavez v. Gonzales, supra note 56 at 200.

63 Bernas, supra note 20 at 83, pointing to I RECORDS 689-698, 721-723. IV RECORDS 596-602, 668-700, 705-761.

64 Id. at 84.

65 410 U.S. 113 (1973).

66 Bernas, supra note 20 at 83.

67 Id. at 85, citing IV RECORDS 809.

68 Id. at 86, citing Prince v. Massachussetts, 321 U.S. 158 (1944) and Ginsberg v. New York, 390 U.S. 629 (1968).

69 Closing remarks delivered on the final session of the Constitutional Commission, October 15, 1986, Batasang Pambansa, Quezon City.

70 See Sections 1 and 3(1), Article XV, 1987 CONSTITUTION.

71 See Section 14, Article II, 1987 CONSTITUTION.

72 Tolentino, Arturo, I COMMENTARIES AND JURISPRUDENCE ON THE CIVIL CODE OF THE PHILIPPINES, 344.

73 Article 69, FAMILY CODE. In contrast, under Article 110 or the Civil Code. the authority to fix the family domicile was given to the husband alone.

74 Article 70, FAMILY CODE. In contrast, under Article III of the Civil Code, it was the response ibility or the husband to support the wife and the rest of the family.

75 Article 71, F AMILY CODE. In contrast, under Article 115 of the CiviI Code the wife manages the affairs of the house hold.

76 Articles 96 and 124 , FAMILY CODE. While both spouses are the joint administrators or the community property under Article 206 of the Civil Code, the husband was the administrator or conjugal partnership under Article 165 of the Civil Code.

77 Article 211, FAMILY CODE; Article 172, CIVIL CODE; Article 17, CHILD AND YOUTH WELFARE CODE.

78 In particular, Article 164 of the Family Code provides:

Art. 164. Children conceived or born during the marriage of the parents are legitimate.

Children conceived as a result of anificial insemination of the wife with the sperm or the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both or them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child.

79 See the relevant portion of Section 7. Republic Act No. 8552. The exceptions to the general rule that husband and wife shall jointly adopt are as follows: (i) if one spouse seeks to adopt the legitimate son/daughter of the other; or (ii) if one spouse seeks to adopt his/her own illegitimate son/daughter, with the other spouse's consent; and (iii) if the spouses are legally separated from each other.

80 Section 3(v). RH Law.

81 Tolentino, supra note 72 at 344.

82 See last paragraph of Section 7, RH Law.

83 Article 14, FAMILY CODE.

84 Section 3(p), RH Law.

85 560 Phil. 119, 139-141 (2007).

86 The equal protection clause docs not require the universal application of the laws to all persons or things without distinction. What it simply requires is equality among equals as determined according to a valid class ificallon. Indeed, the equal protection clause permits classification. Such classilication. However, to be valid must pass the test of reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class (13 iraogo v. Philippine Truth Conunission. supra note 15 at 168).

87 Section 3(2), Article XV, 1987 CONSTITUTION.

88 Section 12, Article II, 1987 CONSTITUTION.

89 Santosky v. Kramer, 455 U.S. 745, 753 (1982).

90 Santos v. Court of Appeals, 312 Phil. 482, 487 (1995).

91 Article 220, FAMILY CODE.

92 See Article 228-231, FAMILY CODE.

93 Id.

94 Tolentino, supra note 72 at 622.

95 Section 1, Article III. 1987 CONSTITUTION; "No person shall be deprived of life, liberty, or property without due process or law..."

"…the "liberty" against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law" (Roe v. Wack 410 U.S. 113, (1973), Rehnquist J. dissenting).

96 Brennan, William's peech given at the Text and Teaching Symposium, Georgetown University October 12, 1985, Washington, D.C., http://www.pbs.org/wnet/supremecourt/democracy/souces/document/html. (last accessed November 15, 2013).

97 Watson, Bradley, OURSELVES AND OUR POSTERITY, Lexington Books (2009), p. xiv citing Justice Antonio Scalia of the U.S. Supreme Court.

98 Harrison, John, In Memoriam: Robert Bork, 36 HARV. J.L. & PUB. POL’Y 1245, 1246 (2013).


The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION

ABAD, J.:

I concur with the majority.

Remarkably, Republic Act 10354 or the Responsible Parenthood and Reproductive Health Act of 2012, the RH Law for short, repeatedly extols the principles of gender equality, sustainable human development, health, education, information, the sanctity of human life and the family, improved quality of life, freedom of religious convictions, ethics, and cultural beliefs, freedom from poverty, and other ennobled principles. But these are already part of existing laws and no one can object to them. What they do is apparently embellish what the RH Law seeks to accomplish.

Stripped of euphemisms and the echoes of these principles, what the law really wants is to limit population growth with an eye to "sound replacement rate"1 through massive birth control, sex education, and neutralization of opposing views. It seems not to matter that population growth has, according to a United Nations (UN) study, persistently declined in the Philippines from 7.42 per couple in 1950 to 3.27 in 2005-20102 which means that couples today have fewer children even without the RH law.

According to the same UN study, neighboring Asian countries like Japan, Singapore, Taiwan, South Korea, and even China which rigidly implemented birth control programs in the past now have worrisome far-below replacement levels. Having developed a mind-set that children are a burden to the family and to the nation, young couples refuse to have them despite government incentives and awards. This prompted former Singapore Prime Minister Lee Kwan Yew to admit in a 2011 speech that "At these low birth rates we will rapidly age and shrink."

Yet children are not such a burden. Columnist Anne Marie Pamintuan, quoted World Bank's Vice President for East Asia and Pacific, Axel Von Trotsenberg, as saying that "the ultimate asset of the Philippines are its people."3

Facial Challenge

The ponencia is right that the procedural challenges to the petitions are unmeritorious. In particular, respondents claim that the Court should dismiss these actions since they are a mere facial challenge on the constitutionality of the RH Law as opposed to an actual breach of its provisions and the filing of a case in court on account of such breach. The petitions -should not be allowed: they add, since this challenge is not about the exercise of the freedom of expression, an exception to such limitation.

But the right to life of the unborn child, which is at the center of these controversies, cannot be compared with rights that are best examined in cases of actual vioiations. Obviously, the Court cannot wait for the actual extermination of an unborn child before assessing the constitutional validity of the law that petitioners claim Lo permit such action. A law claimed to threaten a child's right to live sufficiently justifies a constitutional facial challenge.

Constitutional Barrier

There is no question of course that every couple planning their family and every woman of ample discernment has the right to use natural or artificial methods to avoid pregnancy. This much is clear. But, in seeking to promote the exercise of this right, the RH Law must hurdle certain constitutional barriers: 1) the right to life of the unborn child that outlaws abortion; 2) the right to health; 3) the free exercise of religion; 4) the right to due process of law; and 4) the freedom expression.

Section 9 and the Right to Life of the Unborn

Section 12, Article II (Declaration of Principles and State Policies), of the 1987 Constitution makes it the duty of the State to protect the right to life of the unborn from conception. Thus

Sec. 12. 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. x x x

1. When Life Begins

When the man's sperm is ejected into the woman's uterus, it travels inward towards the ovary through the fallopian tube. If the ovary has produced and released an ovum, the sperm will meet and fertilize it, producing a zygote, which is a new cell formed by that union. The zygote then travels outward through the fallopian tube towards the uterus, meantime growing into a fleshed embryo, and implants itself on the uterine wall where it will further grow into a fetus and eventually into a full-grown child ready for delivery by its mother at the appropriate time.4

Some people believe that the conception of the child begins only from the moment the fleshed embryo implants itself on the mother's uterine wall where it will draw the food and nutrition it needs to survive and grow into a fetus. It is the termination of the embryo or the fetus at this stage, painful, bloody and depressing, that some are quick to condemn as abortion. Preventing implantation by quietly slaying the zygote or the embryo with little or no blood before it reaches the uterine wall is to them not abortion.

But they are wrong. The 1987 Constitution is clear: the life of a child begins "from conception" and the dictionary, which is the final arbiter of the common meaning of words, states that "conception" is "the act of being pregnant," specifically, the "formation of a viable zygote."5 Science has proved that a new individual comes into being from the moment the zygote is formed. Indeed, the zygote already has a genome (DNA to others) that identifies it as a human being and determines its sex.6 The union of man and woman in the fertilized ovum is the beginning of another person's life.

With the Constitution, the Filipino people have in effect covenanted that the fertilized ovum or zygote is a person. And it is a covenant that binds. Indeed, the RH Law accepts this inviolable principle and precisely prohibits the use of abortifacient that induces "the prevention of the fertilized ovum to reach and be implanted in the mother's womb." Ambushing the fertilized ovum as it travels down the fallopian tube to prevent its implantation on the uterine wall is abortion.

2. Preventing Fertilization

Since the conception of a child begins from the fertilization of the ovum, it is evident that merely preventing the woman from ovulating to produce ovum or preventing the sperm from fertilizing it does not constitute abortion. Contraception in this sense does not violate the Constitutional right to life since the unborn has not as yet been conceived. The law may authorize or even encourage this kind of contraception since it merely prevents conception. The life of an unborn child is not at stake.

3. Free Access to Contraceptives

Barriers like condoms, diaphragms, and contraceptive sponges as well as the natural rhythm method prevent the meeting of the sperm and the ovum. These methods have not been seriously assailed as abortifacient. But birth control pills and intrauterine devices (IUDs) are another matter. A sector of society led by petitioners vehemently assails them as unsafe and abortifacient, meaning weapons of abortion. And here lies the central issue in this case that will not go away unless resolved.

Birth control pills are essentially "hormonal" contraceptives that, according to the World Health Organization (WHO), will avoid conception in two ways: 1) they will prevent the ovary from producing ova or eggs and 2) they will generate thick cervix mucus that would prevent the sperm from reaching and fertilizing the ovum if one is produced. These hormonal contraceptives also, come in the forms of injectables with effects that last for about three months; patches that last seven days; or implants on women's upper arms that continuously release drugs from 3 to 5 years.

IUDs, on the other hand, are small objects that are implanted into the woman's womb, releases chemical substances, and hinders the fertilization of the ovum as its primary function. The IUDs in current use are about the size and shape of a small pendant cross. They prevent conception for 5 or 10 years. One kind is made of copper that releases toxic particles that supposedly kill sperm cells which enter the womb. Another kind releases synthetic hormones into the womb, inducing thick mucus that makes it difficult for the spenn to reach the ovum.7

The Food and Drug Administration (FDA) has been routinely allowing public access to hormonal contraceptives and IUDs even before the passage of the RH Law. The outcry for the law's passage to make these things available to whoever wants them is the lament of the unenlightened.

In reality, the government senses a strong resistance to their use, borne of beliefs that they are unsafe and abortifacient. The RH Law precisely aims to put an end to this resistance by imposing certain sanctions against hospitals, physicians, nurses, midwives, and other health care providers who communicate to others the view that contraceptives and IUDs are unsafe and abortifacient, refuse to prescribe them, or decline to perform the required procedures for their use.

4. Legislative Attempt to Settle the Issues against Birth Control Pills and IUDs.

By their nature, hormonal contraceptives and IUDs interfere with the woman's normal reproductive system. Consequently, the FDA, which has the required technical competence and skills, need to evaluate, test, and ap-prove their use. The RH Law acknowledges this need in its policy statements in Section 2, in its guidelines for impiementation in Section 3, and in its definition of terms in Section 4(a). It is consistent with the FDA law and no one can object to it.

Apparently, however, the FDA's seals of approval have not sufficiently spurred the use of hormonal contraceptives and IUDs. To remedy this and no doubt to queil the belief that they are unsafe and abortifacient, Section 9 of the RH law categorically declares hormonal contraceptives and IUDs "safe" and "non-abortifacient" like other family planning products and supplies. It also ordains their inclusion in the National Drug Formulary which is also the Essential Drugs List. The first sentence of Section 9 provides:

Section 9: The Philippine National Drug Formulary System and Family Planning Supplies. - The National Drug Formulary shall include honnohal contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family planning products and supplies. x x x

x x x x

The above apparently elevates into the status of a law the proposition that hormonal contraceptives and IUDs belong to the class of safe and non-abortifacient faniily planning products and supplies. Indeed, it ordains their inclusion in the National Drug formulary or Essential Drug List (EDL) to join government approved drugs and devices.

The second sentence of section 9 of course of inclusion or removal of family planning supplies from the EDL based on existing practice and in consultation with reputable medical associations, thus:

x x x The Philippine National Drug Formulary System (PNDFS) shall be observed in selecting drugs including family planning supplies that will be included or removed from the Essential Drugs List (EDL) in accordance with existing practice and in consultation with reputable medical associations in the Philippines. x x x7

But the above evidently refers to products and supplies other than the hormonal contraceptives and IUDs mentioned in the preceding sentence. This is how it should be understood since that preceding sentence already declares these two products as safe and non-abortifacient and must by law be included in that List.

If the Court were to treat the ffrst sentence of Section 9 above as a legislative mandate that hormonal contraceptives and IUDS are safe and non-abortifacient, then the FDA's former authority to determine whether or not hormonal contraceptives and IUDs are safe and non-abortifacient would be circumscribed. The law would already have made the determination for the FDA.

The real question before the Court is whether or not Congress can elevate to the status of a law the medical and scientific proposition that hormonal contraceptives and IUDs are safe and non-abortifacient and order their inclusion in the National Drug Formulary without violating the Constitution. Respondents claim that Congress can; petitioners claim otherwise.

The issue of whether or not hormonal contraceptives and IUDS are safe and non-abortifacient is so central to the aims of the RH Law that the OSG has as a matter of fact been quick to defend the authority of Congress to convert such factual finding into law. The OSG insists that everyone, including the Court, has to defer to this finding considering that the legislature is better equipped to make it. Specifically, the OSG said:

The Congress, employing its vast fact-finding and investigative resources, received voluminous testimony and evidence on whether contraceptives and contraceptive devices are abortifacients. It thereafter made a finding that the used of current reproductive devices is not abortifacient. Such finding of legislative fact, which became the basis for the enactment of the RH Law, should be entitled to great weight and cannot be equated with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Congress.

To support this view, the OSG claims that scientific evidence of the highest standards support the legislative determination in Section 9. It rests on the opinions of a group of Philippine medical experts called the Universal Health Care Study Group (UHC) and the World Health Organization (WHO). The OSG even submits copies of these opinions as part of its comment and discusses them extensively.

5. UHC Study Group Opinion

But the UHC Study Group based its conclusion that hormonal contraceptives and IUDs are not abortifacient on the belief that abortion refers only to a viable fetus; the death of a mere fertilized ovum in the hand of these contraceptives do not in the mind of this group amount to abortion. Its paper thus states:

Abortion is the termination of an established pregnancy before fetal viability (the fetus' ability to exist independently of the mother). Aside from the 50% of zygotes that are naturally unable to implant, an additional wastage of about 20% of all fertilized eggs occurs due to spontaneous abortions (miscarriages).

The UHC Study Group seems to live in another planet. Its understanding of when the life of the unborn child begins essentially differs from what the Constitution states, i.e., from the time of conception, something that the RH law itself concedes. Consequently, the group's study fails to connect to the issue of when contraceptives act as abortifacients.

Besides, the UHC Study Group's findings cannot be seriously regarded as near undeniable truth. The UHC group is not a recognized medical or scientific society like the International Union against Cancer or a renowned medical research center like the Mayo Clinic that have reputations for sound medical and scientific studies. The paper it submitted to Congress has not been subjected to any credible and independent peer review. Indeed, the group has never published a paper or study in some reputable scientific or medical journal. Its members met one day in August 2011 and in one sitting found and concluded that existing contraceptives and IUDs are safe and non-abortifacient.

6. WHO Opinions

Congress, according to the OSG relied heavily on WHO's documented opinions regarding the legality and merit of contraceptives. But, firstly, that organization cannot be considered an impartial authority on the use of contraceptives since it has always been a strong advocate of birth control. Its Media Centre Fact Sheet on Family Planning dated May 2013, reads:

WHO is working to promote family planning by producing evidence-based guidelines on safety and service delivery of contraceptive methods, developing quality standards and providing pre-qualification of contraceptive commodities, and helping countries introduce, adapt, and implement these tools to meet their needs. x x x

Secondly, the cited WHO studies are either inconclusive or constitute proof that hormonal contraceptives and IUDs are indeed abortifacient. For instance, the WHO said that "when used appropriately and in doses/ways recommended, none of these methods have been shown to cause abortion of an implanted fetus."8 That needs repetition: "abortion of an implanted fetus."

In other words, the only assurance the WHO can give based on its studies is that, when the contraceptive pill has been properly taken, it will not cause "abortion of an implanted fetus." This is of course based on the WHO mind-set that the life of the unborn begins only from the time of the implantation of the fetus on the uterine wall-the same mind-set as the UHC Study Group. But, as repeatedly stated, this contravenes what the Constitution says: the life of the unborn begins "from conception,"9 which is from the time of the fertilization of the ovum as the RH law itself acknowledges.10 The WHO opinions do not, therefore, connect.

Notably, the WHO is reluctant to admit that most contraceptives perform three functions: they 1) suppress ovulation; 2) prevent fertilization of an ovum by a sperm; and 3) inhibit implantation of a fertilized ovum in the uterine lining.11 When the first two functions fail and an ovum is nonetheless fertilized (a phenomenon called "breakthrough ovulation"), the contraceptives have the potential for functioning as abortifacient and terminating the fertilized ovum by inhibiting implantation.12 This is abortion that the Constitution prohibits.

Despite its reluctance, however, the WHO implicitly acknowledges the fact in its several opinions given to Congress. For instance, the WHO admits in one of its opinion papers that hormonal contraceptives and IUDs "directly or indirectly have effect on the endometrium that may hypothetically prevent implantation" although "there is no scientific evidence supporting this possibility."13 The endometrium is the inner lining of the womb where the embryo lodges, draws food, and develops into a full grown child.14

The WHO's stated opinion stands examination. A hypothesis is a proposition tentatively assumed in order to draw out its logical or empirical consequences and so test its accord with the facts that are known or may be deterrnined.15 This means in this case that the severe harm contraceptives and IUDs inflict on the endornetriurn, a known fact, will, given what science knows, logically or empirically prevent implantation and cause abortion. Indeed, the U.S. Physicians Drug Reference for 1978 and 1998 categorically state that an impaired endometrium prevents implantation.16

Not only this, the WHO further admits that, "[g]iven the high efficacy of combined oral contraceptives in preventing ovulation, it is very unlikely that 'interference with implantation' is a primary mechanism of contraceptive action."17 The WHO repeats this point in another paper.18 Both statements imply that "interference with implantation," while not a primary mechanism of contraceptives, is its secondary mechanism. This means that they also function as abortifacients.

More, the WHO also admits that progestin-only hormonal contraceptive can cause the endometrium, where fertilized eggs are implanted, to suffer injury. It said, "Progestin-only methods also cause changes in the endometrium. However, these changes show great variability among patients, from atrophy to normal secretory structures."19 This means that If implantation of a fertilized ovum on the endometrium nonetheless succeeds, the fertilized ovum would still die. As the WHO said in a reply to Congress, a fertilized ovum is not viable unless it is able to implant on a healthy endometrium since there is "very limited amount of metabolic support in a fertilized human egg."20 Hormonal contraceptives, like IUDs, have the potential for causing abortion.

The world is not in want of outstanding international research groups that do not get funding from pro-abortion organizations or states. But Congress had not tapped them. For instance, the International Agency for Research, on Cancer (IARC) said in 2011 that "the progestogen component (of combined hormonal contraceptives), also ... reduces the receptivity of the endometrium for implantation.21

7. Drug Manufacturers Evidence

Drug manufacturers themselves, whose products the FDA has approved, state in their inserts that their contraceptives perform the dual functions mentioned above. Although the Court is not a trier of facts, it can take judicial notice of facts that are self-evident or are capable of unquestionable demonstration.22 All one needs to do is buy such contraceptives from the local drugstore and read the best that the manufacturers can say about thejr products. One of them, from a popular oral contraceptive Lynstrenol under the brand name of Daphne, was read into the record during the oral argument and had not been challenged. It says:

Pharmacology : mechanics of action:

Effects on Endometrium: Lynestrenol (DAPHNE) impairs implantation, perhaps by altering its special receptors for hormones. It may also be indirectly impaired by interfering with the corpus lutein.

Effects on tubal action: Lynestrenol (DAPHNE) affects tubal secretions and microvili, hence blastocyst and ovum transport are delayed.

Any unnatural delay in the transport of the zygote down through the fallopian tube to the uterine wall will of course prevent timely implantation and cause the fertilized ovum to be aborted. Since abortion is prohibited in the Philippines, this statement is against the manufacturer's interest and is admissible evidence against it.

Another hormonal contraceptive is called Trust Pill but goes by the generic name Ethinyl Estradiol, Levonorgestrel, and Ferrous Fumarate, It is manufactured in Thailand by Ponds Chemical and imported by DKT Philippines of Libis, Quezon City. The packet does not bear the restriction that it must be prescribed by a physician. Its insert, also read during the oral argument, states:

Prior to starting Ethinyl Estradiol + Levonorgestrel + Ferrous Furnarate (TRUST PILL) tablet, pregnancy must be ruled out. However, should a pregnancy occur while taking the tablet, the administration has to be withdrawn at once.

The pill is intended to prevent fertilization of the ovum. But if this is not achieved, it is implicit from the above statement that continued use will harm the fertilized ovum and cause abortion. The manufacturer is compelled to disclose this fact in the insert because abortifacient is illegal in the Philippines. This pill is a double barrelled pill. It shoots the ovum to prevent ovulation and shoots the zygote or little Junior if fertilization takes place-abortion.

But the irony of this is that women who use Trust Pill presumably do so because they believe that it will prevent conception. Consequently, it is not likely that they would undergo testing for pregnancy from day to day while taking the pill to enable them to decide when to stop using it and have their child.

Yasmin, a 3rd generation oral contraceptive, has this announcement for online distribution in the Philippines: Yasmin "prevents ovulation (the release of an egg from an ovary) and also causes changes in your cervical and uterine lining, making it harder for sperm to reach the uterus and harder for a fertilized egg to attach to the uterus."23

IUDs also serve as abortifacients. The WHO on whom Congress relied in writing the RH Law said that "During the use of copper-releasing IUDs the reaction is enhanced by the release of copperions into the luminal fluids of the genital tract, which is toxic to sperm."24 And how do these toxic ions affect the uterus where the fertilized ovum is supposed to implant itself? The WHO said in the same paper25 that "[t]he major effect of all IUDs is to induce a local inflammatory reaction in the uterine cavity."

Inflammation is "a condition of some part of the body that is a reaction to injury, infection, irritation, etc. and is characterized by varied cornbination of redness, pain, heat, swelling, and loss of function."26 In other words, the toxic chemicals from the IUD will cause injury to the uterine cavity, preventing the fertilized egg or embryo from being implanted or, if implanted, from surviving. That is abortion resulting from the use of IUDs.

8. Significance of FDA’s
Don't-Use" Certification

Actually, Congress fears that hormonal contraceptives and IUDs perform a third function- disabling the endoriletrium of uterine lining-that enable them to serve as weapons of abortion, Proof of this is that the RH Law provides in the third sentence of Section 9 that these contraceptives and devices may, assuming that they also function as abortifacients, pass FDA approval provided the latter issues a certification that they are "not to be used as abortifacient." Thus:

Sec. 9. x x x Any product or supply included or to be included in the EDL must have a certification from the FDA that said product and supply is made available on the condition that it is not to be used as an abortifacient.

The above of course makes no sense since the two functions go together and the user has no way, after taking the contraceptive, of stopping the second function from running its course. The bad simply comes with the good. The certification requirement violates the RH Law's tenet that "reproductive health rights do not include ... access to abortifacients."27 It also contradicts the RH Law's stated policy of guaranteeing universal access to "non-abortifacient" contraceptives.28 Above all, this position is in breach of the provision of the Constitution that outlaws abortion. In any event, I agree with the Court's ruling that the second sentence of Section 9 does not authorize the approval of family planning, products and supplies that act as abortifacient.

This is not to say that all contraceptives and IUDs, present and future, double as abortifacients and are not to be allowed. Annulling Section 9 merely means that it is beyond the powers of Congress to legislate the safe and non-abortifacient status of certain forms of artificial contraceptives. That function must remain with the FDA which has the required scientific and technical skills for evaluating, testing, and approving each contraceptive before it is publicly made available. The manufacturers and distributors have their responsibilities, too. They have to warrant that their products do not function as abortifacients.

It is appalling, however, that Daphne, Trust Pill, and Yasmin that clearly function as abortifacient passed approval of the FDA. But this is a question that does not have to be answered here. The important thing is that the FDA is to assume as before the responsibility for preventing the violation of the law against abortion. It is of course difficult to be completely positive that a contraceptive primarily intended to prevent ovulation or fertilization of the ovum will absolutely not prevent implantation on the uterine wall and cause abortion. The lack of convincing empirical evidence that it is so may be an acceptable excuse. It is the certainty from the beginning, however, that a given contraceptive has the inherent and substantial potential for causing abortion that is not acceptable. It violates the constitutional right to life of the unborn.

Section 9 and the Right to Health

Section 15, Article II, of the 1987 Constitution makes it the duty of the State to "protect and promote the right to health of the people." Health means physical and mental well-being; freedom from disease, pain, or defect; health means normaly of physical functions.29 Maternal health according to Section 4 of the RH Law refers to the health of a woman of reproductive age including, but not limited to, during pregnancy, childbirth and the postpartum period.

This means that women have the right to be free from government-sponsored sickness, government-sponsored pain, and government-sponsored defect. Since healthy vital organs of the body form part of the right to health, women have the right to have normally functioning vital organs. They have the right to walk in the park or in the malls free from debilitating illnesses and free from worries and fears over contraceptives that the government assures them are safe. The government cannot promote family planning programs that violate the women's right to health. A law that misleads women and states that hormonal contraceptives and IUDs are safe violates their constitutional right to health.

1. Safe or Unsafe Use of Hormonal Contraceptives and IUDs

Since the law does not define the meaning of the term "safe," it is to be understood according to its common meaning: "free from harm, injury, or risk."30 The RH Law itself recognizes that the use of contraceptives produces side effects or other harmful results. Thus, it directs the FDA in Section 19 to issue strict guidelines with respect to their use, acknowledging the need for abundant caution.

Do warnings of side effects and possible lasting harm make contraceptives and IUDs safe? The answer is of course no. For instance, a simple warning against pet snakes would say, "Look at this snake. It is a safe pet to keep in the house. But just don't keep it hungry. Don't forget to close the small door of the cage when you feed it. And watch those small kids." It is the same with the warnings for hormonal contraceptives: "This is safe although you will have spotting, breakthrough bleeding, and prolonged periods. Don't worry. You will gain weight, loss your sexual urge, develop pimples, and breast tenderness. You may experience headache and dizziness as well as vaginal dryness. But that is quite alright. Incidentally, on occasions you may have liver disorders, clotting disorders, breast and cervical cancer, sickle-cell anemia, hormone-active tumors, hyperlipidemia, severe cardiovascular diseases, previous or existing thrombo embolic disease, and idiopathic jaundice. It is possible you will have a heart attack. I won't worry if I were you."

The dangers of those side effects are more worrisome since the RH Law fails to provide standards of safe use of contraceptives such as:

(a) a prescribed standard of tolerance for side effects.

(b) the service of a qualified physician who can advice the user, especially the poor, of the dangers of contraceptives, not just literature written in English so she can make intelligent choice;

(c) the service of a qualified physician who will, while she is under contraceptives, monitor their effects on her, treat her for adverse side effects and complications, and provide her with the right medicine; and

(d) the contraceptives she takes do not act at the same time as abortifacients in case an ovum is fertilized despite the use of such contraceptives.

The fact is that contraceptives interfere with normal body functions. Women have ovaries so these can produce ova or eggs that can be fertilized to ensure procreation and the continuation of the human race. Contraceptives prevent healthy ovaries from ovulating, which is the reason for their being ovaries. One cannot disable the woman's ovaries or monkey with its functions for long periods v1ithout affecting her health. Medical studies and reports show this to be the case.31

2. Drug's Side Effects Versus Benefits

The OSG of course points out that, on balance, the side effects mentioned are outweighed like most medicines by the benefits that their use will bring. But that is a false analogy. Medicine is intended to cure illness. Consequently, the doctor can balance the illness that it wants to cure against the illness that its side effects bring. They are on the same level of exchange: a minor illness weighed against a major illness. For instance, the fact that medicine X may cause manageable problems in the patient's liver is outweighed by the fact that it can, more than any other medicine, hinder a fatal heart attack.

Obviously, this kind of balancing cannot apply to artificial contraceptives since the harm or illness they can cause users, especially women, is not on the same level of exchange as the consequent benefit, namely, sexual pleasure without pregnancy. Besides, other methods that produce no side effects exist. A WHO 2013 report that such methods have good results when used properly. Their rates of success under correct and consistent use are: male condoms 98%; withdrawal 96%; fertility awareness method 95-97%; and abstinence: 100%

This is not to say that contraceptives and IUDs can pass approval by the FDA only if they are absolutely safe. This is unrealistic and the Court must trust married couples and mature women to have the proper discernment for deciding whether to take the risk of their side effects. But the FDA should not trust the manufacturers and distributors with unbridled authority to write their own guidelines to users. It must see to it that these guidelines disclose those side effects in clear and understandable terms from the layman's point of view.

3. Substantive Due Process

The legislature's attempt to elevate into law its arbitrary finding that hormonal contraceptives and IUDs are safe and non-abortifacient is irrational. The detennination of what medicine is safe and useful to a person is a function of the science of medicine and pharmacy. It is not for the Court or the legislature to determine. Raising present-day scientific or medical views regarding contraceptives to the level of law, when contested by opposing scientific or medical views, is an arbitrary exercise of legislative power:

Medical and scientific findings are constantly changing. For example, the International Agency for Research on Cancer of the WHO reported that it was once believed that combined menopausal therapy was "possibly carcinogenic to humans." But the WHO cancer research organization said in 2005 that "The new evaluation concluded, based on an expanded study base, that it is carcinogenic to humans [not just possibly carcinogenic], increasing a woman's risk of breast cancer." In fact, this research organization places oral contraceptives in the highest grade of cancer-producing products. Still, Congress would declare by force of Jaw that oral contraceptives are safe. God save this country if it must rely and stake the lives of its people on Congressional judgment regarding scientific and medical truths.

Fortunately, the Court rules in this case that Congress cannot elevate into law its view that hormonal contraceptives and intrauterine devices are safe and non-abortifacient. The first sentence of Section 9 should be construed as ordaining their inclusion in the National Drug Formulary only after they have been tested, evaluated, and approved by the FDA. Only the FDA is competent to determine whether a particular hormonal contraceptive or intrauterine device is safe and non-abortifacient. This finds support in the second sentence of Section 9 that provides a process for the inclusion or removal of family planning supplies from the National Drug Formulary.

Section 7, Section 23(a)(3), Section 23(a)(2), Section 23(b).
and the Free Exercise of Religion

Section 7 of the RH Law requires all public health facilities to provide the full range of family planning services. This is also required of private health facilities, except in the case of non-maternity specialty hospitals and those operated by religious groups. The latter hospitals are, however, required to immediately refer the person seeking such services to the nearest health care facility that will do the task. Thus, Section 7 provides:

Section 7. Access to Family Planning. - All accredited public health facilities shall provide a full range of modem family planning methods, which shall also include medical consultations, supplies and necessary and reasonable procedures for poor and marginalized cou-ples having infertility issues who desire to have children: Provided, That family planning services shall likewise be extended by private health facilities to paying patients with the option to grant free care and services to indigents, except in the case of non-maternity specialty hospitals and hospitals owned and operated by a religious group, but they have the option to provide such full range of modern family planning methods: Provided, further, That these hospitals shall immediately refer the person seeking such care and services to another health facility which is conveniently accessible: Provided, finally, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344. (Emphasis supplied)

Related to the above is Section 23(a)(3) of the RH Law that makes it a crime for any health care service provider (hospital, clinic, doctor, nurse, midwife, and health worker),32 whether public or private, to refuse to extend quality health care services and information on account of the person's marital status, gender, age, religious convictions, personal circumstances, or nature of work.

The law provides, however, that the health care service provider's objection based on his or her ethical or religious beliefs is to be respected. Thus, he or she is not to be compelled to render the services that would interfere with the natural human reproduction process if the same conflicts with his conscience. This is consistent with Section 5, Article III of the 1987 Constitution which provides that no law shall be made prohibiting a person's free exercise of his religion.

But the irony of it is that at the next breath the RH Law would require the conscientious objector to immediately refer the person, whose wants he declines to serve, to the nearest health care service provider who will do what he would not. The penalty for failing to do this is imprisonment for 1 to 6 months or payment of a fine of P10,000 to P100,000 or both imprisonment and fine. If the offender is a juridical person, the penalty shall be imposed on its president or responsible officer.33

Specifically, Section 23(a)(3) provides:

Section 23. Prohibited Acts. - The following acts are prohib-ited: (a) Any health care service provider, whether public or private, who shall:

x x x x

(3) Refuse to extend quality health care services and in-formation on account of the person's marital status, gender, age, reli-gious convictions, personal circumstances, or nature of work: Pro-vided, That the conscientious objection of a health care service provider based on his/her ethical or religious beliefs shall be re-spected; however, the conscientious objector shall immediately re-fer the person seeking such care and services to another health care service provider within the same facility or one which is con-veniently accessible: x x x

Section 23(a)(3) makes no sense. It recognizes the constitutional right of the conscientious objector not to provide artificial contraceptives that he believes would kill the unborn after it has been conceived. Yet, he must help see it done by someone else. For instance, the Catholic religion might consider it a sin similar to murder to implant a copper IUD into a woman since it would kill the unborn by preventing it from attaching to a womb atrophied by poison from the IUD. The RH law respects the Catholic doctor's right to refuse to do what his faith regards as murder. But he must hasten, at the pain of punishment, to refer the woman to another doctor who is willing to do it.

So if the law would excuse the Catholic doctor from committing what in his faith amounts to murder, would it be reasonable for the law to compel him to help the woman and show her how she can have her child murdered by another doctor? If so, the Catholic doctor would in effect say to the other doctor, "I can't murder this woman's child but please do it in my place." This definitely compels him to do something against his conscience in violation of his constitutional right to the free exercise of his religion.

The OSG cites the Ebralinag case34 concerning students who were members of the Jehovah's witnesses. They refused to salute the flag and for this reason were expelled from school. But the Court said that compelling them to salute the flag would violate their religious belief that salutes are reserved to God. It is the same here in the sense that the RH law actually recognizes the right of a Catholic doctor not to be compelled to implant a copper IUD into a woman's womb because it amounts, according to his religious belief, to the murder of an unborn child. The Constitution and the law respect's the doctor's religious belief.

Of course, as the OSG points out, school authorities are not powerless to di scipline Jehovah's witnesses' members if they commit breaches of the peace by disruptive actions that would prevent others, like their classmates and teachers, from peacefully saluting the flag and singing the national anthem. The OSG implies from this that while the RH Law can similarly respect the conscientious objector's right riot to do what his religion forbids, it can compel him help the person get the declined service from another health care service provider.

But it is clear from Ebralinag that what is required of the Jehovah's witnesses is to respect the right of other students and their teachers by keeping quiet and not disrupting the flag ceremony. Keep quiet and let alone; that is the rule. In the case of the Catholic doctor, he should do nothing to impose . his religious belief on the woinan. He should do nothing that will deny the woman her right to get that copper IUD implantation elsewhere. Like the Jehovah's witnesses, the equivalent conduct for the Catholic doctor is to keep quiet and let alone.

Unfortunately, the RH Law requires him to take steps to ensure that the woman is pointed to another place where she could get the IUD implantation she wants. In effect, the law compels the doctor to do more than Just keep quiet and let alone. It compels him at the pains of going to jail to get involved and help in the cornmission of what his religious belief regards as amounting to the murder of a child. And this is in order to satisfy the need of the woman and her partner for sex without pregnancy. Remember, this is not the case of a bleeding woman needing immediate medical attention.

The Court has correctly decided to annul Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly section 5.24, as unconstitutional insofar as they punish any health care provider who fails and/or refuses to refer a patient not, in an emergency or life-threatening case, to another health care service provider within the same facility or one which is conveniently accessible regardless of his or her religious beliefs.

Section 23(a)(1) and the Principle of Void for Vagueness

Due process demands that the terms of a penal statute must be sufficiently clear to inform those who may be subjected to it what conduct will render them liable to its penalties. A criminal statute that "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute," or is so indefinite that "it encourages arbitrary and erratic arrests and convictions," is void for vagueness. A vague or indefinite statute is unconstitutional because it places the accused on trial for an offense, the nature of which he is given no fair warning.35

Section 23(a)(1) of the RH Law provides:

Section 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(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;

The public health care service provider referred to are of course the hospitals, the doctors, the nurses, the midwives, and the other health workers described elsewhere in the law.36 They will, if found guilty of the offense, suffer imprisonment of 1 to 6 months or a fine of P10,000 to ₱100,000 or both imprisonment and fine.37

Petitioners contend that Section 23(a)(1) above is void for vagueness. But some points out that the term "knowingly" used in the law, assailed by petitioners as vague, is sufficiently clear in that it means awareness or deliberateness that is intentional and connotes malice.

But "knowingly" and "maliciously" have meanings that set them apart.

"Knowingly" means mere awareness or deliberateness. "Maliciously," on the other hand, connotes an "evil intention."38 If the law meant to include malice as an ingredient of the offense described in Section 23(a)(1), it would have added the term "maliciously" to "knowingly." Nothing in the wordings of the law implies malice and the need for criminal intent. The crime as described is malum prohibitum.

The term "knowingly" is vague in the context of the law because it does not say how much information the offender must have regarding those programs and services as to charge with an obligation to impart it to others and be penalized if he "knowingly" fails to do so. The depth of a person's information about anything varies with the circumstances.

One who is running the programs or services would naturally have the kind of information that obligates him to disclose them to those who seek the same and be punished if he "knowingly" refuses to do so. Yet, this circumstance of direct involvement in the program or service is not required in Section 23(a)(1). On the other hand, one who merely reads about those programs and services, like a private hospital nurse who receives a letter offering free program on birth control, would know little of the detailed contents of that program and the competence of those who will run it. But since the law also fails to state what the term " information" means, that private nurse could be charged with "knowingly" withholding information about the birth control program she learned from reading mails if she does not disseminate it to others.

Another element of the offense is that the health care service provider must knowingly withhold or restrict dissemination of the information that he has. It fai ls to state, however, to whom he has an obligation to make a di sclosure. It also gives him no discretion to decide to whom such information would be suitable and to whom not. Consequently, the health care service provider would be vulnerable to charges of violation of the law where he is denied the chance to know before hand when the obligation to disclose presents itself.

Section 23(a)(1) and the Freedom of Expression

Section 23(a)(1) also punishes any health care service provider who knowingly provides "incorrect" information regarding programs and services on reproductive health. But the RH Law does not define what is "correct" or "incorrect" infonnation regarding such programs and services. And it does not require the publication of what information are "correct" and what are "incorrect" sufficient to put prospective offenders on guard.

Besides there is no final arbiter in the world over issues concerning correct or incorrect reproductive health science on which reproductive health programs and services must depend. For instance, while Section 9 regards as law the scientific proposition that hormonal contraceptives and IUDs are safe and non-abortifacient, there is abundant medical and scientific evidence, some from the WHO itself that they are not.

If the legislature can dictate what the truth is regarding medical and scientific issues of the day and send to jail those who disagree with it, this country would be in deep trouble. They threw Galileo into jail for saying that the earth was round when the authorities of his time believed that it was flat. Public health will be endangered if Congress can legislate a debatable scientific or medical proposition into a binding law and punish all dissenters, depriving them of their freedom of expression,

Most competent doctors read the latest in scientific and medical journals and reports. If these convince a doctor that oral pills and copper IUDs are not safe or work as abortifacient, he would be unable to tell his patients these until the law is repealed. Otherwise, he would be giving them "incorrect" information that would send him to jail. This places a health issue affecting public interest outside the scope of scientific and medical investigation.

The doctors who make up the Universal Health Care Study Group, on whose paper Congress relied on, hold the view that the life of the unborn child begins only from the moment of implantation of the embryo on the uterine wall, contrary to what the Constitution provides. This means that if they provide such "incorrect" information to their patients, they could go to jail for it. But no law should be passed outlawing medical or scientific views that take exceptions from current beliefs.

Moreover, the State guarantees under Section 2 of the RH Law the right of every woman to consider all available reproductive health options when making her decision. This implies that she has the right to seek advice from anyone she trusts. Consequently, if a woman wanting to space her pregnancy seeks the advice of a Catholic physician she trusts, the latter should not be sent to jail for expressing his belief that taking oral pills or using copper IUDs Qan cause abortion that her faith prohibits. This is valid even if others do not share the faith. Religious conscience is precisely a part of the consideration for free choice in family planning.

I concede, however, that my above views on Section 23(a)(1) could be better appreciated in actual cases involving its application rather than in the present case where I go by the bare provisions of the law. For now I am satisfied that Section 23(a)(1) has been declared void and unconstitutional insofar as it punishes any health care provider who fails or refuses to disseminate information regarding programs and services on reproductive health regardless of his or her religious beliefs.

ROBERTO A. ABAD
Associate Justice


Footnotes

1 Section 3(c), Republic Act 10354.

2 World Population Prospects: 2008 revision. (n.d.) United Nations, Department of Economics and Social Affairs.

3 The Philippine Star, July 15, 2013.

4 Conception & Pregnancy: Ovulation, Fertilization, and More, http:/webmd.com/baby/guide/ understar. Jing-concepicon, last uploaded 8/1/2013 12:05 pm.

5 Webster's Third New International Dictionary, 1993 Edition.

6 Sadler, T.W. Langman's Medical Embryology 11th Ed 2010, Lippincott Williams and Wilkins.

7 WebMD Medical Reference from Healthwise, citing Grimes DA (2007). Intrauterine devicds (IUDs). In RA Hatcher et al., eds., Contraceptive Technology, 19th ed., pp. 117-143. New York: Ardent Media.

8 WHO Expert Opinion dated November 7, 2006, Annex 1 of OSG Comment, p. 4.

9 Section 12, Article II, 1987 Constitution of the Philippines.

10 Section 4, Republic Act 10354.

11 The Guttmacher Institute (2005), citing the American College of Obstericians and Gygnecologists.

12 Textbook of Contraceptive Practice of Cambridge (Cambridge University Press).

13 WHO October 27, 2010 position paper, Note 7, p. 3.

14 Webster’s New World Dictionary, 3th Edition, pp. 448 (endometrium) and 1470 (uterus).

15 Webster’s Third New International Dictionary, p. 1117.

16 U.S. Physicians Drug Reference, 1978, p. 1817; 1997, p. 2746.

17 WHO November 7, 2006 Expert Opinion, Note 7, Annex__, p. 3.

18 WHO position paper of October 27, 2010, Id., Annex __, p.2.

19 WHO Expert Opinion dated November 7, 2006, Note 7, Annex __, p. 3.

20 WHO January 17, 2011 Response to Queries, Note 7, Annex __, p.3.

21 http://monographs.iarc.fr/ENG/Monographs/vol100A-19.pdf. Retrieved October 3, 2012.

22 Section 2, Rule 129 of the Rules of Evidence.

23 Sulit.com.ph, 2012.

24 WHO November 7, 2006 Expert Opinion, Id. Annex __, pp. 3-4.

25 At p. 3.

26 Webster’s New World College Dictionary, 3rd edition, p. 692.

27 Section 4 (s), Id.

28 Section 2, RH Law.

29 Note 2, p. 621.

30 Note 10, p. 1998.

31 Heinemann, Lothar AJ; Lewis, Michael Aar_ button.gif: Thorogood, margaret1_#$@%!#_ar_ button gif; Spitzer, Walter O.; et al. British Medical Journal, International editionspacer.gif; 315.7121.1_#$@%#_spacer.gif ;(December 6, 1997): 1502-4.

32 See Section 4 Definition of Terms; par. (n) meaning of term" public health care service provider."

33 Section 24, RH Law.

34 Ebralinag v. The Division Superintendent of School of Cebu, G.R. No. 95770, 219 SCRA 256.

35 People v. dela Piedra, G.R. No. 121777, January 24, 2001, 350 SCRA 163.

36 See Section 4 Definition of Terms; par. (n) meaning of term "public health care service provider."

37 Section 24, RH Law.

38 Webster's Third New International Dictionary, p. 1367.


The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION

BRION, J.:

I submit this Separate Concurring Opinion to reflect my views on selected constitutional issues submitted to the Court.

I agree with the ponencia's conclusion that the petitions before the Court are ripe for judicial review, but I do so under a fresh approach that meets head-on the recurring problems the Court has been meeting in handling cases involving constitutional issues. My discussions on this point are likewise submitted to reply to the position of Mr. Justice Marvic Leonen that the petitions are not appropriate for the exercise of the Court's power of judicial review.

I also agree with the ponencia that the Reproductive Health (RH) law protects and promotes the right to life by its continued prohibition on abortion and distribution of abortifacients. I exclude from this concurrence Section 9 of the RH law and its Implementing Rules and Regulation (IRR) which, in my view, fail in their fidelity to the constitutional commands and to those of the RH Law itself; for one, they fail to adopt the principle of double effect under Section 12, Article II of the 1987 Constitution ("Section 12").

For these reasons, I cannot wholly agree that the RH Law is fully protective of the unborn from conception. I submit, too, that the Court should formulate guidelines on what the government can actually procure and distribute under the RH law, consistent with its authority under this law and Section 12, Article II to achieve the full protection the Constitution envisions.

I also agree that the challenge to Section 14 of the RH Law is premature. However, I submit my own views regarding the mandatory sex education in light of the natural and primary right of parents to raise their children according to their religious beliefs. My discussion on this topic also responds to the position of Mr. Justice Bienvenido Reyes that the challenge to the constitutionality is ripe and that the government has a compelling interest in enacting a mandatory sex education program.

Lastly, I find the RH law's Section 23(a)(1), which penalizes healthcare providers who "knowingly withhold information or restrict the dissemination thereof, and/or intentionally provide incorrect information regarding programs and services on reproductive health" to be unconstitutional for violating the freedom of speech.

For easy reference and for convenience, this Opinion shall proceed under the following structure:

I. Preliminary Considerations

A. The petitions are ripe for judicial review: the fresh approach under the 1987 Constitution a. The Historical Context of Judicial Power

b. Analysis of Section 1, Article VIII of the 1987 Constitution.

b.1. The Power of Judicial Review

b.2. The New and Expanded Power

B. The Three Types of Adjudicative Judicial Power

C. The Court is duty bound to resolve the present petitions, not merely dismiss them.

II. Substantive Discussions

A. The RH Law does not fully protect the right to life of the unborn child

a. Overview

i. The primacy of life in the Philippine context

b. The 1987 Constitution

i. The status of the unborn under the 1987 Constitution

ii. The constitutional meaning of conception and to whom this right to life extends

iii. Section 12, Article II of the 1987 Constitution as a self-executing provision

c. Section 12, Article II of the 1987 Constitution and Roe v. Wade

d. Abortion, abortifacients and the RH Law

e. The RH law's definition of abortifacient textually complies with Section 12, Article II, 1987 Constitution

f. The principle of double effect

i. The role of the DOH

ii. Guidelines

B. Parental Rights

a. Parental rights in the Filipino context

b. Parental rights and the State's interest in the youth

c. The state has failed to show a compelling State interest to override parental rights in reproductive health education

d. The question on Section 14's constitutionality is premature

C. Disturbing observations and concerns: The Effects of Contraceptives on national, social and cultural values

D. Freedom of Expression of Health Practitioners and the RH Law

I. Preliminary Considerations

A. The petitions are ripe for judicial review: the fresh approach under the 1987 Constitution

I submit that the petitions are ripe for judicial review. My approach is anchored on a "fresh" look at the 1987 Constitution and the innovations it introduced on the Judicial Department, specifically, on the expansion of the Court's adjudicative "judicial power."

a. The Historical Context of Judicial Power.

The 1935 Constitution mentioned the term "judicial power" but did not define it. The Constitution simply located the seat of this power "in one Supreme Court and in such inferior courts as may be established by law."

The 1973 Constitution, for its part, did not substantially depart from the 1935 formulation; it merely repeated this same statement and incorporated part of what used to be another section in the 1935 Constitution into its Section 1. Thus, Section 1 of the Article on the Judicial Department of the 1973 Constitution provided:

The Judicial power shall be vested in one Supreme Court and in such inferior courts as may be established by law. The National Assembly shall have the power to define, prescribe, and apportion the jurisdiction of the various courts, but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section five thereof.

The 1987 Constitution, in contrast with the preceding Constitutions, substantially fleshed out the meaning of "judicial power," not only by confirming the meaning of the term as understood by jurisprudence up to that time, but by going beyond the accepted jurisprudential meaning of the term. The changes are readily apparent from a plain comparison of the provisions. The same Section 1 under Judicial Department (Article VIII) now reads:

The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, AND to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (emphasis and underscoring supplied)

b. Analysis of Section 1, Article VIII

of the 1987 Constitution.

This simple comparison readily yields the reading - through the repetition of the sentence that both the 1935 and the 1973 Constitutions contained - that the 1987 Judiciary provisions retain the same "judicial power" that it enjoyed under the 1935 and the 1973 Constitutions.

In addition, the 1987 Constitution, through the 2nd paragraph of its Section 1, confirms that judicial power is wider than the power of adjudication that it traditionally carried (by using the word "includes") and at the same time incorporated the basic requirements for adjudication in the traditional concept, namely, the presence of "actual controversies," based on "rights which are legally demandable and enforceable."

The confirmation expressly mentions that the power is granted to "courts of justice" and, aside from being a power, is imposed as a duty of the courts. Thus, the Constitution now lays the courts open to the charge of failure to do their constitutional duty when and if they violate the obligations imposed in Section 1, Article VIII of the 1987 Constitution.

Section 5, Article VIII of the 1987 Constitution further fleshes out the irreducible "powers" of the Supreme Court1 in terms of its original, appellate, and review adjudicative powers and its other non-adjudicative powers.2 In so doing, Section 5 also confirmed the extent of the constitutionally-granted adjudicative power of the lower courts that Congress has the authority to create (by defining, prescribing and apportioning their jurisdictions3), as well as the grant of administrative, executive and quasi-legislative powers to the Supreme Court, all within the sphere of its judicial operations.

Section 5 now provides:

SECTION 5. The Supreme Court shall have the following powers:

(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.

(c) All cases in which the jurisdiction of any lower court is in issue.

(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.

(e) All cases in which only an error or question of law is involved.

(3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned.

(4) Order a change of venue or place of trial to avoid a miscarriage of justice.

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

(6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law.

b.1. The Power of Judicial Review.

In the process of making "judicial power" more specific and in outlining the specific powers of the Supreme Court, the Constitution made express the power of "judicial review," i.e., the power to pass upon the constitutional validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation,4 as the "law or the Rules of Court may provide."

This formulation recognizes that the Supreme Court, even before the 1987 Constitution came, already had workable rules of procedure in place for the courts. These rules cover ordinary actions, special civil actions, special proceedings, criminal proceedings, and the rules of evidence in these proceedings, all of which the 1987 Constitution recognized when it mentioned the Rules of Court, but subject to the Supreme Court's power of amendment.

b.2. The New and Expanded Power.

Still another addition, a completely new one, to the concept of judicial power under the 1987 Constitution is the power "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."5 This new power is innovative since its recognition is separate from the traditional adjudicative power that Section 1 earlier confirms and which Section 5 in part fleshes out.

It is likewise a definitive expansion of judicial power as its exercise is not over the traditional justiciable cases handled by judicial and quasi-judicial tribunals. Notably, judicial power is extended over the very powers exercised by other branches or instrumentalities of government when grave abuse of discretion is present. In other words, the expansion empowers the judiciary, as a matter of duty, to inquire into acts of lawmaking by the legislature and into law implementation by the executive when these other branches act with grave abuse of discretion.

This expansion takes on special meaning when read with the powers of the Court under Section 5, particularly in relation with the Court's power of judicial review, i.e., the power to declare a treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordination or regulation unconstitutional.

Under the expanded judicial power, justiciability expressly depends only on the presence or absence of grave abuse of discretion, as distinguished from a situation where the issue of constitutional validity is raised within a traditionally justiciable case where the elements of actual controversy based on specific legal rights must exist. In fact, even if the requirements for strict justiciability are applied, these requisites can already be taken to be present once grave abuse of discretion is prima facie shown to be present.

In the process of lawmaking or rulemaking, for example, an actual controversy is already present when the law or rule is shown to have been attended by grave abuse of discretion because it was passed; it operates; or its substantive contents fall, outside the contemplation of the Constitution.6 This should be contrasted with allegations of constitutional invalidity in the traditional justiciable cases where) by express constitutional requirement, the elements of (1) actual controversy involving (2) demandable and enforceable rights, must be present because what essentially comes to court is the traditional justiciable case, interwoven with constitutional validity questions.

In the expanded judicial power, any citizen of the Philippines to whom the assailed law or rule is shown to apply necessarily has locus standi since a constitutional violation constitutes an affront or injury to the affected citizens of the country. If at all, a less stringent requirement of locus standi only needs to be shown to differentiate a justiciable case of this type from the pure or mere opinion that the courts cannot render.

Necessarily, too, a matter is ripe for adjudication if the assailed law or rule is already in effect. The traditional rules on hierarchy of courts and transcendental importance, far from being grounds for the dismissal of the petition raising the question of unconstitutionality, may be reduced to rules on the level of court that should handle the controversy, as directed by the Supreme Court.

Thus, when grave abuse of discretion amounting to a clear constitutional violation is alleged and preliminarily shown, the Supreme Court is duty-bound to take cognizance of the case, or at least to remand it to the appropriate lower court, based on its consideration of the urgency, importance or evidentiary requirements of the case.

B. The three types of Adjudicative Judicial Powers.

In sum, judicial power, as now provided under the 1987 Constitution, involves three types of controversies, namely:

(1) the traditional justiciable cases involving actual disputes and controversies based purely on demandable and enforceable rights;

(2) the traditional justiciable cases as understood in (1), but additionally involving jurisdictional and constitutional issues;

(3) pure constitutional disputes attended by grave abuse of discretion in the process involved or in their result/s.

The first two types are already covered by the Rules of Court that, as recognized by Section 5, are already in place, subject to the amendments that the Supreme Court may promulgate.

The third type may inferentially be covered by the current provisions of the Rules of Court, specifically by the rules on certiorari, prohibition and mandamus but, strictly speaking, requires special rules that the current Rules of Court do not provide since the third type does not involve disputes arising as traditionally justiciable cases. Most importantly, the third type does not involve judicial or quasi-judicial exercise of adjudicative power that the Supreme Court has traditionally exercised over lower tribunals7 to ensure that they stay within the confines of their adjudicative jurisdiction.

In the petitions now before us, these new realities on judicial power necessarily must be considered as the petitions allege actions by the legislature and by the executive that lie outside the contemplation of the Constitution. Specifically, they involve the constitutionally infirm provisions of the RH Law passed by Congress and of the IRR of the law that the executive promulgated through the Department of Health.

To be sure, the absence of specifically applicable rules cannot be a judicial excuse for simply bodily lifting the rules for the traditional justiciable cases which the present cases are not. In fact, the Court should not even be heard to give an excuse as it is not undertaking a power that it may exercise at its discretion; the Court is discharging an express duty imposed by the Constitution itself.

In providing for procedural parameters, the Court may not simply hark back to jurisprudence before the 1987 Constitution as they will not obviously apply, nor to jurisprudence after the 1987 Constitution that failed to recognize the third type of justiciable controversy for what it is.

Thus, in the present case, the Court must be guided strictly by the express constitutional command. If past jurisprudence will be made to apply at all, they should be closely read and adjusted to the reality of the third or new type of judicial adjudicative power.

C. The Court is duty bound to resolve
the present petitions, not simply
dismiss them.

The consolidated petitions before the Court raise several constitutional challenges against the RH Law, ranging from violations of the right to life of the unborn (and, concomitantly, of the constitutional prohibition against abortion); violations of the freedom of religion and of speech; violations of the rights of parents and protected familial interests; down to the mostly benign allegations of violation of natural law.

An important and insightful approach is the petitioners' attack on the RH law by considering it as a population control measure that is beyond the power of the government to carry out. The respondents parry this attack by arguing that whatever impact the RH law would have on the population would only be incidental, as the main target of the law is to recognize and enhance the reproductive health rights of women. I agree with the ponencia's analysis of what the RH Law really is, and adopt this analysis and conclusion for purposes of my own discussions in this Opinion.

This snapshot of the petitions strongly shows how the economic, social, cultural and religious dimensions of the RH law cut a swath through the traditional legal and constitutional realm of adjudication. It is no surprise that it took the RH bill fourteen years in Congress before it was enacted into law.

The sharp divide between the law's proponents' and opponents' views and beliefs on the propriety of the RH law, within and outside its legal and constitutional dimensions, reflect the law's encompassing impact: its implementation could, quite possibly, change the face of Philippine society as we know it today. In fact, in this Separate Opinion, I add my own nagging concerns and observations although I know that these may go into the wisdom of the law and are not appropriate for adjudication. I do this, however, in the name of judicial license that should allow me, as a citizen, to express my own personal observations on the dispute at hand.

Indeed, if the RH law seeks to bring about strong, socio-political and economic changes even at the price of our historical identity, culture and traditions, then so be it, but the affected public should know the impact of the issues that soon enough will confront the nation. It is important, too, that changes should not come at the expense of the provisions of the Constitution - the only document that holds the nation together "during times of social disquietude or political excitement," as in the present case. This should not be lost on us, as a Court, and should be a primary consideration in our present task.

At the core of the petitions is the RH law's alleged violation of the right to life of the unborn. I view the unborn's right to life within the much broader context of Article II, Section 12 of the 1987 Constitution recognizing the sanctity and autonomy of familial relations and the natural and primary parental right in child-rearing, on the one hand, and Article XV, Sections 1 and 3, recognizing the key role of the family, on the other.

These constitutional provisions serve as the compass guiding this Opinion and should in fact serve as well for the Court's own decision-making. Even those in the political departments of government should pay them heed, separately from the political and economic considerations that, from the terms of the RH law and its IRR, obviously served as the political departments' driving force.

Under our constitutional regime, the judicial department is the only organ of government tasked to guard and enforce the boundaries and limitations that the people had put in place in governing themselves. This constitutional duty of the Court has been expanded by the additional power of judicial review under the 1987 Constitution to "determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."

These are awesome powers carrying deep and far-ranging duties that we can only discharge while fully aware of their accompanying responsibilities and pre-ordained limits. The present Court, I am sure, is fully aware of the extent of these duties and the limitations, particularly of the rule that we cannot set new polices nor seek to implement current ones as these involve roles that are not constitutionally ours to undertake.

I am aware, too, that the RH Law now before us carries multi-dimensional repercussion, not all of them within the legal and constitutional realms. These realities, however, should not leave us timid in undertaking our tasks; for as long as we act within the confines of our constitutionally-defined roles, we cannot go wrong.

A sure measure to best ensure proper action is to consider the petitions under the third type of judicial adjudications power (defined above) that we first consciously utilize under the present Constitution . In this way, we give full respect to the separation of powers; we step in only when the legislative and the executive step out of the bounds defined for them by the Constitution.

For all these reasons, I join the ponencia's result in its ruling that a controversy exists appropriate for this Court's initial consideration of the presence of grave abuse of discretion: and consequent adjudication if the legislative and executive actions can be so characterized.

II. Substantive Discussions

A. The RH Law does not fully protect
the right to life of the unborn child.

a. Overview

The 1987 Constitution has implicitly recognized the right to life of the unborn child under its Section 12 when it gave the mandate, under the Section's second sentence, to protect the unborn life from its conception, equally with the life of mother.

I agree with the ponencia's conclusion that under Section 12, the conception that the Constitution expressly speaks of, occurs upon fertilizations of the ovum. Thus, the RH law cannot be faulted in its definition of an abortifacient to be any drug or device that kills or destroys the fertilized ovum or prevents its implantation in the uterus.

I slightly differ, however, from the way the ponencia arrived at its conclusion. To me, the Constitution never raised the question of "when life begins";8 in fact, this is a question that the framers of the Constitution sensibly avoided by simply adopting the formulation "the life of the unborn from conception." Interestingly, they even dropped the term "moment of conception" since this precise moment cannot be determined with certainty. The answer the framers decided upon (reinforced by undisputed medical authorities) and which they hope future constitutional leaders and decision-makers will grasp and respect is that once the sperm cell and the egg cell unite (resulting in the combination of their genetic materials to form the fertilized egg or the zygote),9 the protection intended for the unborn should be triggered with full force. I write this Opinion with full respect for this hope.

Thus, I agree with the ponencia that the RH law protects and promotes the right to life of the unborn by its continued prohibition on abortion and distribution of abortifacients. I do recognize, however, that while the RH law generally protects and promotes the unborn's right to life, its Section 9 and its IRR fail in their fidelity to the Constitution and to the very terms of the RH Law itself. For one, it fails to adopt the principle of double effect under Section 12, Article II of the 1987 Constitution, as more fully discussed below.

For these reasons, I cannot wholly concur that the RH law and its IRR, as they came to this Court, were fully protective of the right to life of the unborn. In fact, the Court should lay down guidelines, culled from a constitutionally-valid RH Law, of what the government can actually procure and distribute under the RH law, consistent with its authority under this law and Section 12, Article II of the Constitution.

i. The primacy of life in the Philippine context

The primacy of life from its earliest inception is a constitutional ideal unique to the 1987 Philippine Constitution. While our system of government of tripartite allocation of powers (Articles VI to VIII), the concept of our Bill of Rights (Article III) and even the traditional concept of judicial review (Section 1, Article VIII) may have been of American origin, the idea of life itself as a fundamental constitutional value from its earliest inception carries deep roots in the Philippine legal system.

The idea of life as a fundamental constitutional value from its earliest inception is not of recent vintage although our previous constitutions did not have a provision equivalent to the present Section 12, Article II. Our legal history shows that abortion laws have been in existence even during the Spanish regime when the Spanish Penal Code was made applicable in the Philippines. When the Revised Pe!1al Code was enacted in 1930, the life of the unborn was also considered by suspending the execution of the death sentence10 on a pregnant woman. Under the New Civil Code of 1950, an unborn child is granted presumptive personality from the time of its conception for civil purposes that are favorable to it, although subject to the condition that it be born later.11 To a certain extent, this presumptive personality is already recognized under our penal laws. Under Title I (Crimes Against Persons), Chapter 8 (Destruction of Life) of the Revised Penal Code, the killing of viable, and even non-viable, fetuses may result in criminal liability.12

The continued efficacy of these statutory provisions evidences our society's high regard for the life of the unborn; thus, our present Constitution allows us to disregard it only for the equally paramount necessity of saving the life of the unborn's mother. It also reflects not only our society's recognition of and respect for the life of the unborn as a Filipino ideal to be pursued under the 1987 Philippine Constitution, but of the country's own cultural values as a people.13

That this same respect is now expressly provided under the 1987 Constitution is not so much for the purpose of creating a right, but for the purpose of strengthening the protection we extend to the unborn life against varied external threats to it.14 It would indeed be very ironic if the threat would come from our own government via the abortifacients it hopes to distribute under the RH Law's IRR.

b. The 1987 Constitution

i. The status of the unborn
under the 1987 Constitution

Although the framers of the Constitution expressly recognized the unborn's right to life from conception, they did not intend to give the unborn the status of a person under the law.

Instead, the framers distinguished between the unborn's right to life and the rights resulting from the acquisition of legal personality upon birth in accordance with law. Unlike the rights emanating from personhood, the right to life granted to the unborn is in itself complete from conception, unqualified by any condition.

Although Section 12, Article II of the Constitution does not consider the unborn a person, its terms reflect the framers' clear intent to convey an utmost respect for human life15 that is not merely co-extensive with civil personality.16 This intent requires the extension of State protection to the life of the unborn from conception. To be precise, Section 12, Article II of the 1987 Constitution provides:

Section 12. 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. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.

ii. The constitutional meaning
of conception and to whom is
this right to life extended

Unlike the ponencia, I take the view that the question of when the life of the unborn begins cannot strictly be answered with reference to time, i.e., the exact time the sperm cell fertilized the egg cell. But other than this uncertainty, the germinal stage17 of prenatal development18 that transpires (after the union of the sperm cell and the egg cell and the combination of their genetic material materialized to form the fertilized egg or the zygote) is not debatable.

Upon fertilization, a complex sequence of events is initiated by the zygote to establish the molecular conditions required for continued embryonic development. The behavior of the zygote at this point is radically unlike that of either sperm or egg separately; it exhibits signs of independent life characteristic of a human organism.19

Since the constitutional intent is to protect the life of the unborn, and the fertilized egg (or the zygote) already exhibits signs and characteristics of life, then this fertilized egg is already entitled to constitutional protection. I say this even if this fertilized egg may not always naturally develop into a baby or a person.

I submit that for purposes of constitutional interpretation, every doubt should be resolved in favor of life, as this is the rule of life, anywhere, everywhere; any doubt should be resolved in favor of its protection following a deeper law that came before all of us - the law commanding the preservation of the human specie. This must have been the subconscious reason why even those who voted against the inclusion of the second sentence of Section 12 in Article II of the Constitution conceded that a fertilized ovum - the word originally used prior to its substitution by the word "unborn" - is possessed of human life although they disagreed that a right to life itself should be extended to it in the Constitution.20

It is in these lights that I dispute the Solicitor General's argument that Congress' determination (that contraceptives are not abortifacients) is entitled to the highest respect from this Court since it was arrived at after receiving, over the years, evidence, expert testimonies and position papers on the distinction between contraceptives and abortifacients.

The Solicitor General argues that even assuming medical uncertainty on the mechanisms of contraceptives and Intrauterine Devises in view of the contrary opinions of other medical experts, this uncertainty does not prevent Congress from passing the RH law because legislative options "in areas fraught with medical and scientific uncertainties" must be "especially broad" and calls for judicial deference until an actual case exists.

I cannot agree with the implied assertion that Congress' determination that contraceptives are not abortifacients is binding on the Court.

First, the nature of a particular contraceptive to be distributed by the government under the RH law still has to be determined by the FDA and any advance recognition by Congress of its abortifacient or non-abortifacient character would be premature.

Second, as will be discussed shortly, the statutory meaning of "abortifacient," on which the constitutional acceptability of a contraceptive depends, must depend in the first place on the extent of the prohibition defined in the Constitution, not as defined by Congress.21 Third, and more importantly, while US case law has established Congress' broad discretion in areas where medical uncertainty exists, none of these cases22 involved a challenge on congressional discretion and its collision with a specific constitutional provision protecting the life of the unborn from conception. This aspect of the present cases uniquely distinguishes them from the cases cited by the respondents. In the same vein, the specific provisions unique to the 1987 Constitution limit the applicability of parallel US jurisprudence in resolving issues through solutions consistent with our own "aspirations and ideals" as a nation and our own tradition and cultural identity as a people. Fourth and last, this Court cannot be deferential to any official, institution or entity, in the discharge of the Court's duty to interpret the Constitution, most specially when the existence of the most important physical and spiritual being on earth - humankind - is at stake. Let it not be said hereafter that this Court did not exert its all in this task. When - God forbid! - fetuses begin dying because abortifacients have been improvidently distributed by government, let not the blame be lain at the door of this Court.

iii. Section 12, Article II of the
1987 Constitution as a self-executing provision

The respondents argue that the recognition of a right under the Constitution does not automatically bestow a right enforceable through adjudication. Thus, they claim that Section 12, Article II of the 1987 Constitution is not a self-executing provision; while this Section recognizes the right to life of the unborn child, it leaves to Congress the discretion on how it is to be implemented. The RH law actually embodies the exercise of Congress' prerogative in this area when it prohibited abortion and access to abortifacients.

I submit that the mandate to equally protect the life of the mother and the life of the unborn child from conception under Section 12, Article II of the Constitution is self-executing to prevent and prohibit the state from enacting legislation that threatens the right to life o(the unborn child.

To my mind, Section 12, Article II should not be read narrowly as a mere policy declaration lest the actual intent of the provision be effectively negated. While it is indeed a directive to the State to equally protect the life of the mother and the unborn child, this command cannot be accomplished without the corollary and indirect mandate to the State to inhibit itself from enacting programs that contradict protection for the life of the unborn.

Read closely, the second paragraph of Section 12, Article II contains two mandates for the State to comply with:

First, it contains a positive command for the State to enact legislation that, in line with the broader context of protecting and strengthening the Filipino family, recognizes and protects equally the life of the unborn child and the mother. It is within this context that Congress enacted the RH Law's provisions,23 as well as prior laws24 that provide healthcare measures for the mother and her child during and after pregnancy.

Second, Section 12, Article II provides a negative command against the State to refrain from implementing programs that threaten the life of the unborn child or that of the mother. This is a constitutional directive to the Executive Department.

By commanding the State to equally protect the life of the unborn child and the life of the mother, the Constitution not only recognizes these rights, but provides a minimum level of protection in the case of the unborn child. In effect, the Constitution prohibits the State from implementing programs that are contrary to its avowed policies; in the case of the unborn child, the State cannot go lower than the minimum level of protection demanded by the Constitution.

In concrete terms, the State cannot, in the guise of enacting social welfare legislation, threaten the life of the unborn child after conception. The State recognizes the right to life of the unborn child from conception, and this should not be imperiled by the State itself in the course of reproductive health programs that promote and provide contraceptives with abortifacient properties. In more specific terms under the circumstances of this case, the State cannot, through the legislature, pass laws seemingly paying respect and rendering obedience to the Constitutional mandate while, through the executive, promulgating Implementing Rules and Regulations that deviously circumvent the Constitution and the law.

To recapitulate, the State, through Congress, exercises full authority in formulating programs that reflect the Constitution's policy directive to equally protect the life of the mother and the unborn child and strengthen the Filipino family while the Executive carries the role of implementing these programs and polices. This discretion, however, is limited by the flipside of Section 12, Article II's directive - i.e., these programs cannot contradict the equal protection granted to the life of the unborn child from conception and the life of the mother.

I now proceed to my reading and appreciation of whether the right to protection, both of the mother and the unborn, are fully respected under the RH law.

At the outset, I note that both the petitioners and the respondents agree that Section 12, Article II of the 1987 Constitution prohibits abortion in the Philippines. This point of agreement not only strengthens my argument regarding the self-executing nature of the negative command implicit in the provision, but also sets the stage for the point of constitutional query in the present case.

To me, the question in the present case involves the scope of the level of protection that Section 12, Article II recognizes for the unborn child: to what extent does Section 12, Article II of the 1987 Constitution protect the unborn's right to life? And does the RH Law comply with the protection contemplated under this constitutional provision?

According to the OSG, the RH law does not violate the right to life provision under the Constitution because the law continues to prohibit abortion and excludes abortifacients from the provision of access to modem family planning products and device. By anti-abortion, the public respondents meant preventing the Supreme Court from creating a Roe v. Wade rule - a rule that granted women the right to terminate pregnancy under the trimestral rule.

c. Section 12, Article II of the 1987 Constitution and Roe v. Wade

I submit that the scope and level of protection that Section 12, Article II of the 1987 Constitution is deeper and more meaningful than the prohibition of abortion within the meaning of Roe v. Wade.

In the landmark case of Roe v. Wade, a Texas statute made it a crime to procure or attempt an abortion except when necessary to save the life of the mother. After discussing abortion from a historical perspective, the US Supreme Court noted the three reasons behind the enactment of criminal abortion laws in the different states in the United States, viz: first, the law sought to discourage illicit sexual conduct - a reason that has not been taken seriously; second, since the medical procedure involved was then hazardous to the woman, the law seeks to restrain her from submitting to a procedure that placed her life in serious jeopardy; third, the law advances the State's interest in protecting prenatal life25 - a reason that is disputed because of the absence of legislative history that supports such interest. The Court said that "it is with these interests, and the weight to be attached to them, that this case is concerned." Unhesitatingly, the US Supreme Court struck down the law as unconstitutional and ruled that the right to privacy extends to a pregnant woman's decision whether to terminate her pregnancy.26 It observed:

This right of privacy, xxx is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved.

Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

Among the cases that Roe cited in support of its ruling, anchored on the right to privacy, are the cases of Griswold v. Connecticut27 and Eisenstadt v. Baird.28 In Griswold, the Court invalidated a Connecticut law that made it a crime to use and abet the use of ontraceptives for violating a married couples' right to privacy. In Eisenstadt, the Court extended the protection of the right to privacy even to unmarried individuals by invalidating a Massachusetts law that penalized anyone who distributed contraceptives except if done by a physician to married couples.29

While Roe recognized the state's legitimate interest in protecting the pregnant woman's health and the potentiality of human life, it considered the pregnant woman's decision to terminate her pregnancy prior to the point of fetal viability (under a trimestral framework30) as a liberty interest that should prevail over the state interest.

Apart from the context in which the U.S. decision is written, a reading of the second sentence of Section 12, Article II, in light of the framers' intent in incorporating it in the Constitution, reveals more distinctions from Roe than what the public respondents claim.

The framers did not only intend to prevent the Supreme Court from having a Philippine equivalent of a Roe v. Wade decision,31 they also unequivocally intended to deny Congress the power to determine that only at a certain stage of prenatal development can the constitutional protection intended for the life unborn be triggered.32 In short, the clear intent of the Framers was to prevent both Congress and the Supreme Court from making abortion possible.

Indeed, in discussing the third reason for the enactment of a criminal abortion law, Roe avoided any reliance on the theory that life begins at conception, much less on the principle that accompanies the theory that there must be a protected right to life at that stage. Instead the U.S. Supreme Court merely deferred to the State's legitimate interest in potential life. In the 1987 Philippine Constitution, by inserting the second sentence of Section 12, Article II, the framers sought to make an express rejection of this view in Roe.

Thus, while this Court or Congress cannot conclusively answer the question of "when life begins" as in Roe, Philippine constitutional law rejects the right to privacy as applied in Roe by granting a right to life to the unborn (even as a fertilized egg or zygote) instead of gratuitously assuming that the State simply has an interest in a potential life that would be subject to a balancing of interest test other than the interest that the Constitution expressly recognizes.

Interestingly, in Carey v. Population Services, Int'l.,33 in striking down a New York law criminalizing the sale, distribution34 and advertisement of nonprescription contraceptives, the US Supreme Court clarified that they so rule "not because there is an independent fundamental 'right of access to contraceptives,' but because such access is essential to the exercise of the constitutionally protected right of decision in matters of childbearing that is the underlying foundation of the holdings in Griswold, Eisenstadt v. Baird, and Roe v. Wade." Accordingly, the State cannot pass a law impeding its distribution on pain of prosecution. No such law is involved in the present case.

In Planned Parenthood v. Casey,35 the US Supreme Court reaffirmed the "central holding" in Roe v. Wade, among others, that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.36 In the Philippine jurisdiction, these legitimate interests rest on a higher and stronger ground not only because they are commanded by our Constitution but because these legitimate interests were made to extend to the life of the unborn from conception. The mandatory command of the Constitution to protect the life of the unborn by itself limits the power of Congress in enacting reproductive health laws, particularly on subsidizing contraceptives.

d. Abortion, abortifacients and the RH Law

As I earlier noted, both petitioners and the respondents agree that Section 12, Article II of the 1987 Constitution prohibits abortion. As to what abortion is and when pregnancy is established, the Medical Experts' Declaration cited by the respondents themselves is instructive:

1. xxx

2. xxx

3. All contraceptives, including hormonal contraceptives and IUDs, have been demonstrated by laboratory and ciinical studies, to act primarily prior to fertilization. Hormonal contraceptives prevent ovulation and make cervical mucus impenetrable to sperm. Medicated IUDs act like hormonal contraceptives. Copper T IUDs incapacitate sperm and prevent fertilization.

4. The thickening or thinning of the endometrium (inner lining of the uterus) associated with the use of hormonal contraceptives has not been demonstrated to exert contraceptive action, i.e. if ovulation happens and there is fertilization, the developing fertilized egg (blastocyst) will implant and result in a pregnancy (contraceptive failure). In fact, blastocysts have been shown to implant in inhospitable sites without an endometrium, such as in Fallopian tubes.

5. Pregnancy can be detected and established using currently available laboratory and clinical tests - e.g. blood and urine levels of HCG (Human Chorionic Gonadotrophin) and ultrasound - only after implantation of the blastocyst. While there are efforts to study chemical factors associated with fertilization, currently there is no test establishing if and when it occurs.

6. Abortion is the termination of an established pregnancy before fetal viability (the fetus' ability to exist independently of the mother). Aside from the 50% of zygotes that are naturally unable to implant, an additional wastage of about 20% of all fertilized eggs occurs due to spontaneous abortions (miscarriages).

7. Abortifacient drugs have different chemical properties and actions from contraceptives. Abortifacients terminate an established pregnancy, while contraceptives prevent pregnancy by preventing fertilization.

8. xxx

Based on paragraph number 6 of the Medical Experts' Declaration, abortion is the termination of established pregnancy and that abortifacients, logically, terminate this pregnancy. Under paragraph number 5, pregnancy is established only after the implantation of the blastocysts or the fertilized egg. From this medical viewpoint, it is clear that prior to implantation, it is premature to talk about abortion and abortifacient as there is nothing yet to abort.

If the constitutional framers simply intended to adopt this medical viewpoint in crafting Section 12, Article II, there would have been no real need to insert the phrase "from conception." This should be obvious to a discerning reader. Since conception was equated with fertilization, as borne out by Records of the Constitutional Commission, a fertilized egg or zygote, even without being implanted in the uterus, is therefore already entitled to constitutional protection from the State.

e. The RH law's definition of abortifacient
textually complies with Section 12,
Article II, 1987 Constitution; Section 9
negates this conclusion.

In this regard, I find that despite the recognition of abortion only at a late stage from the strict medical viewpoint, the RH law's implied definition of abortion is broad enough to extend the prohibition against abortion to cover the fertilized egg or the zygote. Consistent with the constitutional protection of a fertilized egg or zygote, the RH Law defines an abortifacient 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.

By considering a drug or device that prevents the fertilized ovum from reaching and implanting in the mother's womb as an abortifacient, the law protects the unborn at the earliest stage of its pre-natal development.

Thus, I agree with the ponencia that the RH law's definition of abortifacient is constitutional. The law, however, still leaves a nagging and contentious question relating to the provision of its Section 9, which reads:

SEC. 9. The Philippine National Drug Formulary System and Family Planning Supplies. - The National Drug Formulary shall include hormonal contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family planning products and supplies. The Philippine National Drug Formulary System (PNDFS) shall be observed in selecting drugs including family planning supplies that will be included or removed from the Essential Drugs List (EDL) in accordance with existing practice and in consultation with reputable medical associations in the Philippines. For the purpose of this Act, any product or supply included or to be included in the EDL must have a certification from the FDA that said product and supply is made available on the condition that it is not to be used as an aborti[acient.

These products and supplies shall also be included in the regular purchase of essential medicines and supplies of all national hospitals: Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency contraceptive pills, postcoital pills, abortifacients that will be used for such purpose and their other forms or equivalent. [emphases ours]

Section 9 includes hormonal contraceptives, intrauterine devices and injectables (collectively, contraceptives) among the family planning products and supplies in the National Drug F ormulary, and makes them part of the products and supplies included in the regular purchase of all national hospitals. While the FDA still has to determine whether a particular contraceptive is abortive in nature, the underscored portion of paragraph 2 of Section 9 strongly indicates that abortifacients will be available for procurement and distribution by the government. In short, the second paragraph of Section 9 itself confirms that the contraceptives to be distributed by the government are abortifacient-capable depending only on its "use."37

That abortifacient-capable contraceptives will be procured and distributed by the government (necessarily using State funds) under Section 9 of the RH law is confirmed by the Implementing Rules and Regulations (IRR.) of the RH law itself.

The IRR defines an abortifacient as "any drug or device that primarily 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 Food and Drug Administration." It also defines a contraceptive as "any safe, legal, effective, and scientifically proven modem family planning method, device, or health product, whether natural or artificial, that prevents pregnancy but does not primarily destroy a fertilized ovum or prevent a fertilized ovum from being implanted in the mother's womb.38

By these definitions, the RH law's IRR has added a qualification to the definition of an abortifacient that is not found in the law. Under the IRR of the RH law, a drug or device is an abortifacient only if its primary mechanism - as opposed to secondary mechanism, which the petitioners have strongly asserted - is abortive in nature. This added qualification to the definition of an abortifacient is a strong argument in favor of the petitioners that the contraceptives to be distributed by the state are abortifacient-capable.

Thus, in one breath, Section 9 of the RH law allows the inclusion of non-abortifacients only in the National Drug Formulary and in another breath allows the distribution of abortifacients based solely on the FDA certification that these abortifacents should not be used as such. To address this conflict, the ponencia submits that the FDA's certification in the last sentence of paragraph 1 of Section 9 should mean that the contraceptives to be made available "cannot" - instead of "is not" - be used as abortifacient, following the no-abortion principle under the Constitution.

To my mind, this inconsistency within the provision of Section 9, as reinforced by the RH law's IRR, should be addressed by construing it in relation with the entirety of the RH law.

One of the guiding principles under the RH law is the primacy given to effective and quality reproductive health care services to ensure maternal and child health.39 Towards this end, the RH law allows properly trained and certified midwives and nurses to administer "lifesaving drugs such as, but not limited to, oxytocin and magnesium sulfate, in accordance with the guidelines set by the DOH, under emergency conditions and when there are no physicians available."40 Similarly, the RH law included in the definition of Basic Emergency Obstetric and Newborn Care (BEMONC) the administration of certain drugs as part of lifesaving services for emergency maternal and newborn conditions/complications. These provisions are consistent with the State's commitment to reduce both maternal and infant mortality, and to ultimately save lives.41

The "life-saving" thrust of the law is complemented by the RH law's provisions that continues to prohibit abortion and prohibits the procurement and distribution of abortifacients. The RH law also limited the extent of the reproductive health rights it grants by excluding from its coverage abortion and access to abortifacients.42 More specifically, it broadly defined abortifacients to include any drug or device that prevents the fertilized ovum from reaching and implanting in the womb. Thus, the RH law protects the fertilized ovum (zygote) consistent with Section 12, Article II of the 1987 Constitution.

Considering the "life-saving" thrust of the law, the procurement and distribution of abortifacients allowed under Section 9 should be interpreted with this "life-saving" thrust in mind. As an aid in understanding this approach, I quote respondent Senator Cayetano's explanation, cited by the public respondents:

Allow me to explain. A careless phrase like "no drug known to be an abortifacient will be made available in the Philippines" sounds like a statement we could all support. But what most of us do not understand is the fact that many life-saving drugs are made available to an ailing mother to address her medical condition although there is a possibility that they may be harmful to a pregnant mother and her fetus. Thus, we have for instance, drugs for diseases of the heart, hypertension, seizures, ulcers and even acne, all of which are to be taken only under doctors' prescription and supervision precisely because of their harmful effects.

Making a blanket statement banning all medicines classified as abortifacients would put all these mothers and their children's lives in greater danger. For decades, these mothers have relied on these medicines to keep them alive. I would like to give another example. A known abortifacient, misoprostol commonly known as cytotec, is one of the drugs that can save a mother's life. I am talking about a mother who just gave birth but has internal hemorrhage and in danger of bleeding to death. Her child has been born. Her child will live but she will die without this drug to stop her bleeding. Are we now to ban the use of this drug? Are we now to say that because it could possibly be used as an abortifacient, it could possibly be abused, this mother must now die despite giving birth to a healthy baby?

Mr. President, we clearly need to make distinctions. These life saving drugs SHOULD NOT BE USED on any circumstances for purposes of carrying out an abortion. But under strict guidelines by the FDA, they can be used by a health practitioner to save a mother's life.

In short, the law allows the procurement of abortifacients under Section 9 only for the equally compelling interest of the State to save the life of the mother on account of a medical necessity.

f. The principle of double effect

In situations where the life of the unborn and the life of the mother collide with each other, the principle of double effect under Section 12, Article II must be applied. The Sponsorship Speech of Constitutional Commissioner Villegas discussed the principle of double effect, as follows:

What if a doctor has to choose between the life of the child and the life of the mother? Will the doctor be guilty of murder if the life of the child is lost? The doctor is morally obliged always to try to save both lives. However, he can act in favor of one when it is medically impossible to save both, provided that no direct harm is intended to the other. If the above principles are observed, the loss of the child's life is not intentional and, therefore, unavoidable. Hence, the doctor would not be guilty of abortion or murder.

I am sure Commissioner Nolledo can give the jurisprudence on this case, the application of the moral principle called the principle of double effect. In a medical operation performed on the mother, the indirect sacrifice of the child's life is not murder because there is no direct intention to kill the child. The direct intention is to operate on the mother and, therefore, there is no dilemma. And let me say that medical science has progressed so much that those situations are very few and far between. If we can produce babies in test tubes I can assure you that those so-called dilemma situations are very rare, and if they should occur there is a moral principle, the principle of double effect, that can be applied.

What would you say are the solutions to these hard cases? The most radical solution to these hard cases would be a caring and loving society that would provide services to support both the woman and the child physically and psychologically. This is the pro-life solution. The abortion solution, on the other hand, not only kills the fetus but also kills any care and love that society could have offered the aggrieved mother.

Implicit in all these arguments is the petition for the Constitution, the arguments against Section 9, requiring the State to equally protect the life of the mother and the life of the unborn from the moment of conception. These arguments want the Constitution to be open to the possibility of legalized abortion. The arguments have been put on record for the reference of future legislation and jurisprudence. xxx

I wholly agree with this position. Thus, to me, the general rule is that both the life of the unborn and the life of the mother should be protected. However, in case of exceptional conflict situations, the life of one may be preferred over the life of the other where it becomes medically necessary to do so. The principle of double effect recognizes that in some instances, the use or administration of certain drugs that are abortifacient-capable are necessary in order to save the life of the mother. The use in administration of these drugs in these instances is and should be allowed by Section 12, Article II of the Constitution since the policy is equal protection.

Justice Leonen argues in this regard that the principle of double effect is a Christian principle that may or may not be adopted by all of the medical community. He even claims that there are some who recommended its abandonment.

I submit that the religious roots of a principle adopted by the Constitution, is not a valid ground to ignore the principle altogether. While some parts of the Constitution were of foreign origin, some parts - including the entire text of Section 12, Article II - were uniquely Filipino, intended to be reflective of our own Filipino culture and tradition. I particularly refer to the primacy of life in our hierarchy of values. Not surprisingly, the public respondents do not dispute this principle of double effect and even allowed abortifacient to be used only for the purpose of equally safeguarding the life of the mother. The representatives of the people themselves recognized the primacy of life and the principle of doubie effect in Section 12, Article II when it gave a broad definition of an abortifacient to extend the protection to life to the fertilized ovum (zygote). These reasons effectively refute Justice Leone's positions.

k. The role of the DOH

As the lead agency in the implementation of the RH law, the Department of Health (DOH) is tasked to "[e]nsure people's access to medically safe, non-abortifacient, legal, quality and affordable reproductive health goods and services[.]"43 This is consistent with the RH law's policy which "guarantees universal access [only] to medically-safe [and] non-abortifacient" contraceptives. The law also provides that these contraceptives "do not prevent the implantation of a fertilized ovum as determined by the" FDA.44

Accordingly, DOH is tasked to procure and distribute to local government units (LGUs) family planning supplies for the whole country and to monitor their usage.45 Once delivered to the LGUs, the responsible health officials "shall assume responsibility for the supplies" and ensure their distribution in accordance with DOH guidelines.46 For this purpose, a regional officer appointed by the DOH shall oversee the supply chain management of reproductive health supplies and/or health products in his or her respective area.47 The RH law also authorizes LGUs to implement its own procurement, distribution and monitoring program "consistent with the overall provisions of this Act and the guidelines of the DOH."48

i. Guidelines

Under the RH law, the Food and Drug Administration (FDA) is tasked to determine whether a drug or device is abortifacient in nature. Once it determines that it is non-abortifacient, then the DOH may validly procure them.

However, if the FDA determines that the drug or device is abortifacient then as a rule, the DOH may not validly procure, much less distribute, them. Consistent with the primacy of life under Section 12, Article II of the 1987 Constitution and the RH law's provisions prohibiting abortion and the distribution of abortifacients, the government cannot procure and distribute these abortifacients. By this, I refer to the definition of an abortifacient under the RH law, i.e., without qualification on whether the nature of its action (to induce 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) is primary or secondary.

As a matter of exception, the government should be able to procure and distribute abortifacients or drugs with abortifacient properties but solely for the purpose of saving the life of the mother. Specifically, the procurement and distribution of these abortifacients may be allowed only in emergency cases and should thus be made under medical supervision.49 The IRR of the RH law defines an "emergency" as a condition or state of a patient wherein based on the objective findings of a prudent medical officer on duty for the day there is immediate danger and where delay in initial support and treatment may cause loss of life or cause permanent disability to the patient.50

In short, after the FDA's prior determination that the drug or device is abortifacient-capable,51 the FDA will have to issue a certification that these drugs or devices are not to be used as abortifacients whether under the first or second paragraphs of Section 9. The DOH may (i) procure these contraceptives strictly following its (DOH) own guidelines that list the drugs or devices that are essentially used for life-saving purposes; if the drug certified by the FDA to be abortifacient is not essentially used for life saving purpose, then the DOH may not procure them; and (ii) distribute these based on DOH guidelines that limit its distribution strictly for life-saving, medically-supervised and, therefore, non-abortive purpose.

I note in this regard that under the second paragraph of Section 9, the procurement and distribution of emergency contraceptive pills, postcoital pills, abortifacients is subject to a similar condition that it "will not be used" for abortifacient purpose. This condition is also a recognition of the abortifacient-capable nature of "emergency contraceptive pills." Given this nature, their procurement and distribution must likewise involve emergency situation. However, the IRR's own definition of an "emergency contraceptive pills" does not contemplate an emergency situation that permits its procurement and distribution.

1) Emergency Contraceptive Pills, also known as Postcoital Pills refers to methods of contraception that can be used to prevent pregnancy in the first few days after intercourse intended for emergency use following unprotected intercourse, contraceptive failure or misuse,x x x52

The "emergency" situation contemplated under the definition of an "emergency contraceptive pills" as quoted above is not the "emergency" situation under the principle of double effect in Section 12, Article II of the 1987 Constitution or the emergency as defined in the same IRR of the RH law. Should the FDA find, pursuant to its mandate under the RH law, that an emergency contraceptive pill or post-coital pill is abortifacient or is abortifacient-capable, then their distribution and procurement should follow the guideline under the exception.

If an abortifacient-capable drug essentially serves a purpose other than saving the life of the mother - and is, therefore, not included in the DOH guidelines that list what drugs or device are essentially used for life-saving purposes - then the general rule applies: the government may not procure and distribute it.

Lastly, under Section 7.03 of the IRR of the RH law drugs, medicines, and health products for reproductive health services that are already included in the Essential Drug List as of the effectivity of the IRR shall remain in the EDL, pending FDA certification that these are not to be used as abortifacients.

Since these are contraceptives that are already registered with the FDA53 under RA No. 3720 as amended by RA No. 9711,54 these contraceptives must undergo evaluation by the FDA under the provisions of the RH law to determine whether these are abortifacients - as defined by law and not by the IRR. In either case, the general rule and the exception I have laid down above should apply. On the one hand, if these products are non-abortifacients as defined under the RH law, then the government may procure and distribute them; on the other hand, if these products are abortifacients or are abortifacient-capable, the FDA may issue its certification under Section 7.03 of the IRR if the product is essentially used for life-saving purposes.

If the DOH determines that the product is essentially used for life-saving or emergency purposes, the DOH may (i) procure these contraceptives strictly following its (DOH) own guidelines that list the drugs or devices that are essentially used for life-saving purposes; and (ii) distribute these based on DOH guidelines that limit its distribution strictly for life-saving, medically-supervised and, therefore, non-abortive purpose. If the product is essentially for other therapeutic purpose, the FDA may not issue the certification under Section 7.03 of the IRR since the product may not be procured and distributed by the government in the first place.

B. Parental Rights

I also agree with the ponencia that an attack on Section 14 of the RH law is premature, but for my own reasons and qualifications.

Section 14 of the RH Law mandates the provision of "age-and-development-appropriate reproductive health education" in both the formal and non-formal education system in the country, and for its integration in relevant subjects in the curriculum, thus:

SEC. 14. Age- and Development-Appropriate Reproductive Health Education. - The State shall provide age- and development-appropriate reproductive health education to adolescents which shall be taught by adequately trained teachers in formal and nonformal educational system and integrated in relevant subjects such as, but not limited to, values formation; knowledge and skills in self-protection against discrimination; sexual abuse and violence against women and children and other forms of gender based violence and teen pregnancy; physical, social and emotional changes in adolescents; women's rights and children's rights; responsible teenage behavior; gender and development; and responsible parenthood: Provided, That flexibility in the formulation and adoption of appropriate course content, scope and methodology in each educational level or group shall be allowed only after consultations with parents-teachers-community associations, school officials and other interest groups. The Department of Education (DepED) shall formulate a curriculum which shall be used by public schools and may be adopted by private schools.

According to the petitioners, the mandatory RH education in schools deprives parents of their natural and primary right to raise their children according to their religious beliefs, and should thus be held unconstitutional.

The ponencia, while recognizing the primacy of parental rights under the 1987 Constitution, holds that it is premature to rule on the constitutionality of the mandatory RH education program, as the Department of Education has yet to formulate the curriculum implementing it. The Court is thus not in the position to speculate on its contents and determine whether they adhere to the Constitution.

I agree with the ponencia's observation that the lack of a curriculum renders the petitioners' allegations premature, and dispute Justice Reyes's position that the issue of Section 14's constitutionality is ripe for adjudication and that based on this, we can already rule with finality that Section 14 is constitutional.

We cannot, without first exammmg the actual contents of the curriculum and the religious beliefs and personal convictions of the parents that it could affect, declare that the mandatory RH education is consistent with the Constitution. In other words, we cannot declare that the mandatory RH education program does not violate parental rights when the curriculum that could possibly supplant it is not yet in existence. Given the primacy of the natural and fundamental rights of parents to raise their children, we should not pre-empt a constitutional challenge against its possible violation, especially since the scope and coercive nature of the RH mandatory education program could prevent the exercise of these rights.

Further, I am uneasy to join the ponencia's conclusion that, at any rate, Section 14 is constitutional. I express misgivings on the constitutionality of this provision, which does not on its face provide for an opt-out clause for parents whose religious beliefs conflict with the State's program.

a. Parental rights in the Filipino context

The 1987 Constitution introduced an entire section on the Family that, in essence, recognizes the Filipino family as the foundation of the nation and mandates the State to strengthen its solidarity and actively promote its total development.

Corollary to the importance that the Constitution gives the Filipino family is the State's mandate to protect and strengthen it. It is not by coincidence that the Constitution, in requiring the State to protect and strengthen the Filipino family, describes it as a basic and autonomous social institution.

This is a recognition of and deference to the decisional privacy inherent in every family, a recognition that is reflected and reinforced in other provisions of the Constitution: Article II, Section 12 recognizes the "natural and primary right and duty of parents" in rearing the youth; Article XV, Section 3 mandates the State to defend the "right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood" and "the right of families or family associations to participate in the planning and implementation of policies and programs that affect them."

These constitutional provisions reflect the Filipino ideals and aspirations which the Constitution requires the government to promote and strengthen. Historically, these provisions show "a strong tradition of parental concern for the nurture and upbringing of their children"55 that makes us, as a people, stand out from the rest of world's cultures and traditions. We stand out for the way we, as a family, care for our young and for the aged. To us, family ties extend from before the cradle and beyond the grave. I do hope this remains a tradition and can stand the tests of time and governmental intervention.

The relationship created by and resulting from a family naturally extends to and involves other personal decisions that relate to child rearing and education. Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their proper upbringing and safeguard their best interest and welfare.56 These array of personal decisions are protected by the constitutional right to privacy to be free from unwarranted governmental intrusion. Pursuant to this natural right and duty of parents over the person of their minor children, parental authority and responsibility include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.57

b. Parental rights and the state's interest in the youth

The Constitution provides that the family's autonomy is not without limits since the State similarly has a role and interest in protecting children rights and advancing their welfare.

While parents are given a wide latitude of discretion and support in rearing their children, their well-being is of course a subject within the State's constitutional power to regulate.58

Specifically, the Constitution tasked the State to promote and protect their moral, spiritual, intellectual and social development, and to recognize and support their vital role in nation-building.59 In this undertaking, the State acts in its capacity as parens patriae.

Concededly, the State - as parens patriae - has the right and duty to minimize the risk of harm, arising from the acquisition of knowledge from polluted sources, to those who are as yet unable to take care of themselves fully.

In other words, the family itself and the rights of parenthood are not completely beyond regulation; parental freedom and authority in things affecting the child's welfare, including, to some extent, matters of conscience and religious conviction are not totally beyond State authority.60 It is in this area that the parents right to raise their children and the State's interest in rearing the youth clash.

In our jurisdiction, the case of Ebralinag v. the Division Superintendent of Schools of Cebu61 presents the Court's resolution of the conflict between the parents' right to raise their children according to their religious beliefs, and the State's interest in inculcating civic consciousness among the youth and teaching them the duties of citizenship.

In Ebralinag, we annulled the expulsion orders issued by the respondent schools against students who refused to attend the flag ceremony on the ground that it violates their religious convictions. We said that while the State has the right and responsibility to teach the youth the values of patriotism and nationalism, this interest is subject to a "balancing process" when it intrudes into other fundamental rights such as those specifically protected by the Free Exercise Clause, the constitutional right to education and the unassailable interest of parents to guide the religious upbringing of their children in accordance with the dictates of their conscience and their sincere religious beliefs.62

While we conducted a 'balancing process' in Ebralinag, we have yet to formally enunciate a doctrinal test regarding its operation. In the context of the present case, we might ask when does a State program unlawfully intrude upon the parents' right to raise their children according to their own religious convictions? Stated differently, how far can the State go in interfering with this right based on the State's "demands" for responsible parenthood?

Case law from the U.S., from where our Bill of Rights originated, has developed a body of jurisprudence regarding the resolution of clashes between parental rights and the State's parens patriae interests.

A survey of US jurisprudence shows that the custody, care and nurture of the child, including his preparation for civic obligations, reside first in the parents, and these functions and freedoms are accorded recognition and respect by the State. In the words of Pierce v. Society Sisters:63

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Thus, in Meyer v. Nebraska,64 Pierce v. Society of Sisters65 and Wisconsin v. Yoder,66 the US Supreme Court struck down as unconstitutional various laws regarding the education of children in public schools. In these cases, the parents were compelled to follow state directives under pain of sanction; all of the assailed statutes had penal clauses for noncompliant parents and guardians. The State unlawfully intruded into the parents' natural right to raise their children because they were coerced into following a mandatory governmental action, without any opting out or excusal system provided for objecting parents.67

Indeed, several state courts in the US have upheld the validity of state-directed sex education programs because it gives parents the option to excuse their children from attending it.68 The Supreme Court of Hawaii69 and the Court of Appeals of California,70 for instance, have upheld similarly phrased laws mandating sex education in public schools. They both noted that the sex education program in their states allows the parents to first review the program's contents, and excuse their children's attendance should they find the program objectionable. The Michigan Court of Appeals71 also upheld the validity of its State's sex education program, as it was completely voluntary and requires parental authorization. The Michigan law also permits parents to excuse their children from attending the sex education program, and categorically provides that unwilling parents would not be punished for opting out of the program.72

In these lights, a mandatory reproductive health education program in public schools does not violate parental privacy if they allow parents to review and excuse their children from attending the program, or if the State shows a compelling state interest to override the parents' choice and compel them to allow their children to attend the program.

c. The State has failed to show
any compelling state interest to
override parental rights in
reproductive health education

I disagree with Justice Reyes's assertion that the mandatory reproductive health education program has already passed the compelling state interest test used to determine whether a governmental program may override familial privacy and the parents' rights to raise their children in accordance with their beliefs.

I submit that, for now, the government has not provided any sufficiently compelling state interest to override parental rights; neither has it proven that the mandatory RH education program has been narrowed down to the least intrusive means to achieve it.

I likewise disagree with Justice Reyes's argument that the rise of teenage pregnancies in the recent years, coupled with our ballooning population, is a compelling state interest - it is, at most a reasonable state interest, but not one compelling enough to override parental rights.

What const itutes compelling state interest is measured by the scale of rights and powers arrayed in the Constitution and calibrated by history. It is akin to the paramount interest of the State for which some individual liberties must give way, such as the public interest in safeguarding health or maintaining medical standards, or in maintaining access to information on matters of public concem.73 It essentially involves a public right or interest that, because of its primacy, overrides individual rights, and allows the former to take precedence over the latter.

The prevalence of teenage pregnancies, at most, constitutes a matter of public concern. That its impact to society and to the teenage mother is important cannot be denied, but that it is important enough to defeat privacy rights is another matter.

I take exception to the comparison between societal problems such as alcohol and drugs abuse with teenage pregnancies. Indeed, alcohol and drugs are societal evils that beget even more evils, such as increases in crime rates and familial discord. The same cannot be said of teenage pregnancies. I do not believe that begetting a child at a young age would have a direct correlation to crimes and the breaking up of families.

Neither can I agree that the consultations with parents and teachers associations prior to the curriculum's fonnulation make the mandatory RH education as the least intrusive means to address increases in teenage pregnancies. Consultations are informative, at least, and deliberative and suggestive, at most; they cannot, with certainty, immediately guarantee that parents' familial privacy rights would be respected.

Notable, too, is the all-encompassing penal clause that penalizes any violation of the RH Law. On its face, this penal clause, together with the wide scope of the mandatory RH education program, actually makes the program coercive for parents. It could be read as a compulsion on parents, under pain of fine and imprisonment, to allow their children to attend the RH education program. Even assuming that the penal clause will not apply to refusing parents, the scope of the RH education program gives them very little choice.

To my mind, the Solicitor's argument that the RH education program allows parents to exercise their preferences because they can choose to send their children to private schools is not sufficiently persuasive as it ignores the environment on which the Philippine education system operates. This choice is superficial for many families, as most of them rely on public schools for the education of their children.74 For most parents, sending their children to private schools is a luxury that only a few can afford.

d. The question of Section 14's
constitutional prematurity

I do admit that some of the topics enumerated in the RH education program are, on their face, not objectionable, and are within the State's authority to include in the curriculum of public school education. But at this point, without the specifics of what would be taught under the RH education program, we cannot determine how it would exactly affect parental rights and the right of parents to raise their children according to their religious beliefs.

Too, we cannot determine whether the Department of Education will or will not provide parents the right to review the contents of the curriculum and opt to excuse their children from attending these subjects. This option allows the implementation of the RH education program while respecting parental rights, and saves it from questions of constitutionality.

In these lights, I agree with Justice Mendoza's conclusion that the challenge to the constitutionality of Section 14 of the RH Law is premature.

C. Disturbing observation and concerns:

The effects on contraceptives on the national, social, cultural and religious values

As I earlier mentioned, the implementation of the RH law cannot but leave lasting imprints on Philippine society, some of them positive and some negative. I do not here question the wisdom of the law, as matters of wisdom and policy are outside judicial realm. I claim judicial license in this regard if I intrude into prohibited territory in the course of expressing disturbing concerns that come to mind.

The Philippines to be sure, is not the first country to use contraceptives and the mixed results froni countries that have long travelled this road are, to my mind, not very encouraging. One obvious discouraging effect of controlled population growth is on the economy of some of these countries which now have to secure foreign labor to balance their finances. This development has been a boon for a country like the Philippines with a fast growing population; we are enjoying now the benefits of our fast-growing population through the returns our migrating Filipino workers bring back to the Philippines from their work in labor-starved countries. This has become possible because host countries like Japan and the more economically advanced European countries need workers to man their industries and supply their economies. Another economic effect is on retirement systems that have been burdened by predominantly aging populations. For this same reason, some countries even face impending economic slowdown in the middle term75 unless they can effectively remedy their manpower shortage.

But more than the political and economic consequences, I believe that the RH Law's implementation could usher in societal and individual behaviors and norms vastly different from the traditional. Already, some of our traditions are giving way, brought about alone by advances in computerization and communication. Factoring in contraceptives and birth control may immeasurably hasten the changes for the worse.

In the family front alone, the ideals expressed in our Constitution about the Filipino family may soon just be unreachable ideals that we can only long for. Access to modem methods of family planning, unless closely regulated, can shape individual preferences and behavior, that, when aggregated, could lead to entirely different societal perception on sex, marriage, family and parenthood.76

The effect of the RH law on parents' capacity to influence children about reproductive health could, in a couple of years, produce a generation with very different moral views and beliefs from the parents and the adults of this generation, resulting in a possible schism between the younger and elder members of the family. Their polarized views could lead to the deterioration of the strong ties that bind the Filipino family.

Contraceptives and birth control devices, distributed even among the young because of lack of stringent control, can lead to a generation of young Filipinos uncaring about the morality of instant sex and irresponsible in their view about pregnancies and the diseases that sexual promiscuity can bring. Even in the near term, this development can affect views about marriage and the rearing of the young.

For those already married, contraceptives and birth control devices of course offer greater opportunities for sex outside of marriage, both for the husband and the wife. The effects of these outside opportunities on marriage may already be with us. Perhaps, more than at any other time, we have a record number now of separated couples and wrecked marriages, to the prejudice of the family and the children caught in between.

In hindsight, the 1987 Constitution's painstaking efforts to include provisions on the family, parenthood and marriage reflect our cultural identity as a Filipino people.77 I do not believe it to be disputable that the heart of the Filipino society is the family. Congress, in introducing innovations to reproductive health might have tried to respect this ideal but I have serious doubts and misgivings on whether we can succeed given the deterioration and erosion in familial values already becoming evident in our society. I hope that in this instance, history would prove me wrong.

D. Freedom of Expression of Health
Practitioners and the RH Law

I submit that Section 23 (a)(1) of the RH law, which penalizes healthcare providers who "knowingly withhold information or restrict the dissemination thereof, and/or intentionally provide incorrect information regarding programs and services on reproductive health" is an unconstitutional subsequent punishment of speech.

Broken down to its elements, Section 23(a)(1)78 of the RH law penalizes health care providers who (1) knowingly withhold information about programs and services on reproductive health; (2) knowingly restrict the dissemination of these programs and services; or (3) intentionally provide incorrect information regarding them.

These prohibited acts are, by themselves, communicative and expressive, and thus constitute speech. Intentionally providing incorrect information cannot be performed without uttering, verbally or otherwise, the information that the RH Law deems to be incorrect. The information that is illegal to withhold or restrict under Section 23 also constitutes speech, as it is an expression of data and opinions regarding reproductive health services and programs; thus, the prerogative to not utter these pieces of information also constitutes speech.79

By penalizing these expressive acts, Section 23 imposes a subsequent punishment on speech, which as a counterpart to the prohibition against prior restraint, is also generally prohibited under the constitutional guarantee of freedom of expression. Without an assurance that speech would not be subsequently penalized, people would hesitate to speak for fear of its consequences; there would be no need for prior restraints because the punishment itself would effectively serve as a chilling effect on speech.80

While I am aware of the state's interest in regulating the practice of medicine and other health professions, including the communications made in the course of this practice, I beiieve that Section 23(a)(1) of the RH Law has overreached the permissible coverage of regulation on the speech of doctors and other health professionals.

Jurisprudence in the United States regarding the speech of medical practitioners has drawn a distinction between speech in the course of their practice of medicine, and speech in public.81 When a doctor speaks to his patient, his speech may be subjected to reasonable regulation by the state to ensure the accuracy of the information he gives his patient and the quality of healthcare he provides.82 But when the doctor speaks to the public, his speech becomes protected speech, and the guarantees against prior restraint and subsequent punishment applies to his expressions that involves medicine or any other topic.83 This distinction is not provided in Section 23(a)(1) of the RH Law, and we cannot create a distinction in the law when it provides none. Thus, I submit that Section 23(a)(1) violates the right of health practitioners to speak in public about reproductive health and should simply be struck down.

In particular, Section 23 (a)(1) of the RH Law fails to pass the balancing of interests test designed to determine the validity of subsequent punishments that do not involve the state's interests in national security crimes. Under this test, the Court is tasked to determine which of the competing legitimate interests that the law pits against each other demands the greater protection under particular circumstances.84

In the present case, Section 23(a)(1) of the RH law pits against each other the State's interest in promoting the health and welfare of women on the one hand, and the freedom of expression of health practitioners, on the other. The Solicitor General, in particular, emphasized the need for Section 23(a)(1) to fulfill the State's goal to secure the people's access to full , unbiased and accurate information about reproductive health services.

While I do not wish to underestimate the State's interest in providing accurate information on reproductive health, I believe that the freedom of expression of medical health practitioners, particularly in their communications to the public, outweighs this State interest for the following reasons:

First, we must consider that the RH Law already puts the entire State machinery in providing an all-encompassing, comprehensive, and nationwide information dissemination program on family planning and other reproductive health programs and services. The RH law commands the State to have an official stand on reproductive health care and the full-range of family planning methods it supports, from natural to artificial contraceptives. It then requires the national government to take the lead in the implementation of the information dissemination campaign,85 and local government units to toe the line that the national government draws.86

The RH Law even requires both public and private hospitals to provide a full -range of modem family planning services, including both natural and artificial means. This necessarily means that hospitals (where the health practitioners work) are required by law and under pain of penal punishment, to disseminate information about all available reproductive health services.

To my mind, this information dissemination program, along with the mandatory requirement for hospitals to provide a full range of family planning services, sufficiently cover the state's interest in providing accurate information about available reproductive health services and programs. If, corollary to the State's interest to promote accurate information about reproductive health, it intended to make health care practitioners accountable for any negligence they may commit in the course of their practice, I submit that, as my second argument will further expound, the existing regulatory framework for their practice already sufficiently protects against such negligence and malpractice.

Second, the existing regulatory framework for the practice of medicine sufficiently penalizes negligence and malpractice, to which the provision of inaccurate information or the withholding of relevant medical information belongs.

Under our laws, an erring health practitioner may be subjected to three separate proceedings. Depending on the act he or she has committed, the health practitioner may be held criminally and civilly liable by our courts,87 and administratively liable by their professional regulation board.88 For government employees, they can also be held administratively liable under civil service laws.89

Thus, I do not see any reason to add another penalty specific to speech that covers reproductive health, especially since, as pointed out earlier, state interests in providing accurate information about RH services are already fully covered.

Lastly, and what, to me, tips the balance overwhelmingly in favor of speech, the chilling effect that Section 23 (a)(1) creates against the expression of possible ideas, discussions and opinions could eventually hinder progress in the science and research on reproductive health. Health professionals are the most qualified to debate about the efficacy and side effects of reproductive health services, and the penalty against uttering incorrect information about reproductive health services could silence them. Even worse, the requirement for them to provide information on all reproductive health programs of the government could add to the chilling effect, as it sends a signal that the only information on reproductive health that should be considered as correct is that of the government.

In these lights, I concur with the ponencia's conclusions, subject to the points I raised in this Separate Opinion.

ARTURO D. BRION
Associate Justice


Footnotes

1 Section 2, Article VIII of the 1987 Constitution reads:

Section 2. The Congress shall have the power to define, prescribe, and apportion the jurisdiction of various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof.

2 Section 6, Article VIII of the 1987 Constitution reads:

Section 6 provides that "The Supreme Court shall have administrative supervision over all courts and the personnel thereof."

3 Batas Pambansa Big. 129.

4 This same power was only implied in the US Constitution and was expressly recognized only through jurisprudence (Marbury v. Madison, 5 US 137 [1803]). Our 1935 and the 1973 Constitutions followed this approach.

5 Constitution, Article VIII, Section 1,

6 Pimentel v. Aguirre, G.R. No. 132988, July 19, 2000; and Tanada v. Angara, G.R. No. 118295 May 2, 1997.

7 Through the writs of certiorari, prohibition and mandamus over lower courts and quasi-judicial bodies in the exercise of their adjudicative functions.

8 As petitioner Alliance for Family Foundation Inc., states, "the question of when life begins is neither metaphysical nor theological - it is scientific;" (Memorandum, pp. 48) and unless the sc ientific community has become unanimous on a question that transcends every culture, race, and religion, this Court cannot consider itself adequate to answer the question. Indeed, the question of "when life begins?" is not simply a question of law that this Court can conclusively answer; it is not also simply a question of policy that Congress can conclusively determine. What the Court does know is that it is question that is as old as humanity itself.

9 http://psychology.about.com/od/developmentalpsychology/a/prenataldevelop.htm.

10 Article 83 of the Revised Penal Code.

11 See also Presidential Decree (PD) No. 603. The effect of this grant of presumptive personality is illustrated in Geluz v. Velez (G.R. No. L-16439, July 20, 1961) where the Court, denied recovery of damages for the death of an unborn because it is not yet "endowed with personality." Nevertheless, the Court recognized that an unborn fetus has a "right to life and physical integrity." Similarly in Quimiging v. Icao (G.R. No. 26795, July 31, 1970), the Court ruled an unborn child is entitled to receive support from its progenitors.

12 See Arts. 255-259 of the Revised Penal Code.

13 The Preamble of the 1987 Constitution reads:

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society, and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.

14 This conclusion is reached by a reading of Section 12, Article II in relation with the other provisions in the 1987 Constitution. Unlike the US Constitution, the idea of respect for life and for human dignity penneates the Philippine Constitution, viz: Section 5, Article II on the protection of life under a democracy; Section 9, Article II on a social order that ensures quality life for all; Article II in relation to Article XIII on its special regard for the youth, women, health, and ecology as factors affecting the life of the people; Section 1, Article III on the protection of life through the observance of due process; Section I, Article XII on national economy that fosters equality of life for all.

15 Records of the Constitutional Commission (RCC), July 17, 1986, p. 56.

16 A heated and prolonged debated ensued on the question of whether a provision protecting the life of the unborn should ever be written in the Constitution.

17 There are three basic stage of prenatal development: germinal stage, embryonic stage and fetal stage (http://psychology.about.com/od/developmentalpsychology/a/prenataldevelop.htm.) last accessed March 20, 2014.

18 The process of growth and development within the womb in which a zygote (the cell formed by the combination of a sperm and an egg) becomes an embryo, a fetus, and then a baby (http://www.medterms.com/script/main/art.asp?articlekey= 11899).

19 (http://psychology .about.com/od/developmentalpsychology/a/prenataldevelop.htm) last accessed March 20, 2014.

20 RCC, July 17, 1986.

21 While the US Supreme Court recently reversed the trend of reviewing congressional findings of fact in Gonzales v. Carhart (550 US 124 [2007]) it formally di savowed judicial deference on the US Congress's findings:

Although we review congressional fact finding under a deferential standard, we do not in the circumstances here place dispositive weight on Congress' find ings. The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake. See Crowell v. Benson, 285 U.S. 22, 60 (1932) ("In cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function")

22 See Gonzales v. Carhart, 550 U.S. 124, (2007); Kansas v. Hendricks, 521 US 346 (1997); Jones v. United States, 463 U.S. 354 (1983).

In Gonzales v. Carhart, the Court was confronted with a medical disagreement whether the law's prohibition on a particular abortion procedure would ever impose significant health risks on women seeking abortion. The Court upheld the prohibition as being consistent with the State's interest in promoting respect for human life at all stages in the pregnancy. "The medical uncertainty provides a sufficie nt basis to conclude in this facial attack that the Act does not impose an undue burden." In US v. Marshall, 414 U.S. 417 (1974), which the public respondents cited, after Robert Edward Marshall pleaded guilty to an indictment charging him with entering a bank with intent to commit a fe lony, he requested that he be considered for treatment as a narcotic addict pursuant to law. The court denied his request because his prior two felony convictions statutorily excluded him from the discretionary commitment provision of the law. Marshall questioned the denial on due process grounds. The Court denied the challenge. After considering the limited resources to fund the program and the lack of "generally accepted medical view as to the efficacy of presently known therapeutic methods of treating addicts," the Court said that Congress simply made "a policy choice in an experimental program" that it deems more beneficial to the society.

23 Section 3(c); Section 4 (c), (d), (q)2 ; and Section 5, Republic Act (RA) No. 10354.

24 Under Section 17 a(1) and (3) of RA No. 9710 (An Act Providing for the Magna Carta of Women), women are granted, among others, access to maternal care which includes access to pre-natal and post-natal services to address pregnancy and infant health and nutrition and legal, safe and effective methods of family planning. Under Section 3(f) of RA No. 6972 (An Act Establishing a Daycare Center in Every Barangay, Instituting therein a Total Development and Protection of Children Program, Appropriating Funds therefor, and For Other Purposes) the total development and protection of children program at the barangay level include a referral and support system for pregnant mothers for prenatal and neonatal care. Under Section 3(a) of RA No. 8980 (An Act Promulgating a Comprehensive Policy and a National System for Early Childhood Care and Development Providing Funds therefor and For Other Purposes), the early childhood and development system under the law aims to make adequate health and nutrition programs accessible to mothers as early as the pre-natal period.

25 On this third reason, the US Supreme Court added:

Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assess ing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.

26 Roe challenged the constitutionality of a Texas criminal abortion law that proscribes procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life.

27 381 US 479 (1965). The Court reversed the conviction of the appellants who prescribed contraceptives to married couples.

28 405 US 438(1971).

29 The US Supreme Court said that "if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."

30 The following is Roe's trimester framework.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, ifit chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

31 The cases (e.g., Griswold v. Connecticut, 381 U.S. 479 [1965] and Eisenstadt v. Baird, 405 U.S. 438 [1971]) that set the stage for Roe v. Wade essentially reflect what the American constitutional law thinking is on the matter of pregnancy, abortion, and the State's intervention. The apprehension of the Framers of the constitution that this individualist American ideal of privacy to justify abortion might find their way in our statute books and jurisprudence must be understood in light of this apprehension. What is distinctly noticeable in these American cases that set it apart from the case before us is the reversal of roles between the exercise of governmental power and the assertion of fundamental rights. These American cases basically involved the government's assertion of its interest over potential life as opposed to a woman's privacy and liberty interest to terminate that potential life. In the case before us, it is the government which is accused of threatening a potential life through the RH law.

32 R.C.C., September 16, 1986.

33 431 U.S. 678 (1977). The Court struck down a New York law criminalizing the sale, distribution (except by a licensed pharmacist to a person sixteen years of age or over) and advertisement of nonprescription contraceptives because the limitation on the distribution imposed a significant burden on the right of the individuals to use contraceptives if they choose to do so. The Court ruled that since a decision on whether to bear or beget a child involves a fundamental right, regulations imposing a burden on it may be justified only by compelling state interests, and must be narrowly drawn to express only those interests - something which is absent in this case. The Court said:

The Constitution protects individual decisions in matters of chi ldbearing from unjustified intrusion by the State. Restrictions on the distribution of contraceptives clearly burden the freedom to make such decisions.

34 Except by a licensed pharmacist and only to a person sixteen years of age or over.

35 505 us 833 (1992).

36 In this case, the constitutionality of a Pennsylvania statute which imposes certain requirements before and after an abortion was challenged. The US Supreme Court abandoned the trimester framework in Roe by replacing it with the "undue burden" standard - i. e., maintaining the right of the pregnant woman to terminate her pregnancy subject to state regulations that does not amount to an "undue burden" for the exercise of the right. Nonetheless, the Court emphasized that it affirms Roe's "central holding" which consists of three parts: first, a recognition of the right of the woman to choose to have an abortion before viability without undue interference from the State; second, a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health; third, the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.

37 Petitioner ALFI correctly pointed out that under the Implementing Rules and Regulations (IRR) of RA No. 10354 (Section 3 .01a and 7.04a), a drug or device will be considered an abortifacient only if it "primarily" induces the abortion, destruction of fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the uterus (Memorandum, p. 168).

38 Section 7.04 of the IRR also reads:

Section 7.04. FDA Certification of Family Planning Supplies. The FDA must certify that a family planning drug or device is not an abortifacient in dosages of its approved indication (for drugs) or intended use (for devices) prior to its inclusion in the EDL. The FDA shall observe the following guide lines in the determination of whether or not a drug or device is an abortifacient:

a) As defined in Section 3.01 (a) of these Rules, a drug or device is deemed to be an abortifacient if it is proven to primarily induce 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;

39 Section 2(c), RA No. 10354.

40 Section 5, RA No. 10354.

41 Public Respondents' Comment, pp. 4-5.

42 Section 4(s), RA No. 10354.

43 Section 19, RA No. I 0354.

44 Section 2 , RA No. 10354; See also Section 3, RA No. 10354.

45 Section 10, RA No. 10354.

46 Section 8.08, IRR of RA No. 10354.

47 Section 8.08, IRR of RA No. 10354.

48 Section 10, RA No. 10354; Section 8.09 and Section 12.02k, IRR of RA No. 10354. To ensure the effective implementation of RA No. 10354, [See Section 3(i)], the DOH is required to "facilitate the involvement and participation of [non-government organization] and the private sector... in the production, distribution and delivery of quality reproductive health and fam ily planning supplies and commodities [See Section 19b(2), RA No. 10354; Section 12.01k and Section 12.04 of the IRR of RA No. 10354]. Towards this end, the IRR of RA No. 10354 provides that "where practicable, the DOH or LG Us may engage [the services of] civil society organizations or private sector distributors [Section 8.08 of the IRR of RA No. 10354].

49 See Section 5 of RA No. 10354. Section 4.11 to 4.13 of the IRR of RA No. 10354 reads:

Section 4.11 Provision of Life-Saving Drugs During Maternal Care Emergencies. Midwives and nurses shall be allowed to administer life-saving drugs, such as but not limited to oxytocin and magnesium sulfate, in accordance with the guidelines set by the DOH , under emergency conditions and when there are no physicians available: Provided, That they are properly trained and certified to administer these life-saving drugs.

Section 4.12 Policies on Administration of Life-Saving Drugs. Properly trained and certified midwives and nurses shall be allowed to administer intravenous fluids, oxytocin, magnesium sulfate, or other life-saving drugs in emergency situations and when there are no physicians available. The certification shall be issued by DOH-recognized training centers upon satisfactory completion of a training course. The curriculum for this training course shall be developed by the DOH in consultation witht he relevant societies of skilled health professionals.

Within sixty (60) days from effectivity of these Rules, the DOH shall develop guidelines for the implementation of this provision. The guidelines shall include provisions for immediate referral and transport of the patient upon administration of these life-saving drugs.

Section 4.13 Certification for LGU-Based Midwives and Nurses for the Administration of Life-Saving Drugs. The LGUs, in coordination with the DOH, shall endeavor that all midwives and nurses assigned to public primary health care facilities such as Rural Health Units (RHUs) be given training and certification by a DOH-recognized training center to administer life-saving drugs within one (1) year from the effectivity of these Rules.

50 Section 3.01k of the IRR of RA No. 10354.

51 See Section 2, Section 3(e), and Section 4(a) of RA No. 10354.

52 Section 3.01 (1) of the IRR of RA No. 10354.

53 Section 3(1) of RA No. 10354 reads: "

(1) Modem methods of family planning refers to safe, effective, non-abortifacient and legal methods, whether natural or artificial, that are registered with the FDA, to plan pregnancy.

54 An Act Strengthening and Rationalizing the Regulatory Capacity of the Bureau of Food and Drugs by Establishing Adequate Testing Laboratories and Field Offices, Upgrading its Equipment, Augmenting its Human Resource Complement, Giving Authority to Retain its Income, Renaming the Food and Drug Administration, Amending Certain Sections of Republic Act No. 3720, as amended, and Appropriating Funds therefor.

55 Wisconsin v. Yoder, 406 US 205.

56 Silva v. CA, G.R. No. 114742, July 17, 1997.

57 Art. 209, Executive Order No. 209.

58 Ginsberg v. New York, 390 U.S. 629 (1968).

59 Article II , Section 13 of the 1987 Constitution reads:

Section 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.

60 Prince v. Massachusetts, 321 US 158 (1944), citing Rey nolds v. United States, 98 US 145; Davis v. Beason, 133 US 333.

61 G.R. No. 95770, December 29, 1995.

62 G.R. No. 95770, December 29, 1995 .

63 268 us 510 (1925).

64 262 U.S. 390 (1923).

65 268 U.S. 510 (1925).

66 406 U.S. 205 (1972).

67 See Curtis v. School Comm., 420 Mass. 749 (1995).

68 See The Courts and Education, Volume 77, Part 1, Edited by Clifford P. Hooker, University of Chicago Press, 1978, pp. 157-158.

69 Medeiros v. Kiyosaki, 478 P. 2d 314 (1970).

70 Citizens for Parental Rights v. San Mateo County Bd of Education, 51 Cal. App. 3d 1 (1976).

71 Hobolth v. Greenway, 52 Mich. App. 682 (1974).

72 Hobolth v. Greenway, 52 Mich. App. 682, 684 (1974).

73 Serrano v. Gallant Maritime S ervices, G.R. No. 167614, March 24, 2009.

74 As of the year 2000, only 7.76% of the total elementary school students and 22.67% of the total high school students are enrolled in private institutions. Andrabi, et. al., Private Schooling: Limits and Possibilities, October 2005, accessed from http://www.hks.harvard.edu/fs/akhwaja/papers/PrivateSchoold Final Nov5.pdf, citing Edstats, The World Bank, Washington, D.C.

75 See Peter G. Peterson, Gray Dawn: The Global Aging Crisis, Foreign Affairs, Vol. 78, No. 1 (Jan. - Feb.,1999), available at http://www.jstor.org; European Union Center of North Carolina, EU Briefings: The EU's Demographic Crisis, March 2008, at http://europe.unc.edu/wp-content/uploads/2013/08/Brief9-0803-demographic-crisis.pdf.

76 Prolife petition, pp. 34-37.

77 See, for instance, Article II, Section 12 and Article XV of the 1987 Constitution.

78 Section 23 of RA 10354 reads:

SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider. whet!ier public or private, who shall:

(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 -abonifacient and effective family planning methods;

79 The right to speak inciudes the right not to speak, J. Cruz, Separate Opinion in Ebralinag v. Division Schools Superintendent <?[Cebu, G.R. No. 95770, March 1, 1993.

80 See Todd F. Simon, First Amendmenl in the Twentieth Century U.S. Supreme Court begins to define freedoms of speech and press, in HISTORY OF MASS MEDIA IN THE UNITED STATES: AN ENCYCLOPEDIA (1999), p. 223; New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

81 See Robert C. Post, Informed Consent to A bortion: A First Amendment Analysis of Compelled Physician Speech, 3 Univ. of Illinois Law Rev. 93 9, 2007, available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article= 1169&context=fss _papers

82 The practice of medicine, like all human behav ior, transpires through the medium of speech, In regulating the practice, therefore, the state must necessarily also regulate professional speech, Without so much as a nod to the First Amendment, doctors are routinely held liable for malpractice for speaking, or for failing to speak. Doctors commit malpractice for failing to inform patients in a timely way of an accurate diagnosis, for failing to give patients proper instructions, for failing to ask patients necessary questions, or for failing to refer a patient to an appropriate sp ecialist. In a ll these contexts the regulation of professional speech is theoretically and practically inseparable from the regulation of medicine. Id. at 950 - 951.

83 See Bailey v. Huggins Diagnostic & R ehabilitation Center, 952 P.2d 768 (Colo. Ct, App 1997), where the Colorado Supreme Court made a distinction between a dentists' speech made in the course of a dental treatment, and his speech in books and opinion articles; the former may be the subject of a malpractice suit; the latter, on the other hand, is not.

84 American Communications Assoc. v. Douds, 339 US 282, as cited in Gonzales v. COMELEC.

85 It mandates the Department of Health and local government un its to "initiate and sustain a heightened nationwide multimedia-campaign to raise the level of public awareness" on reproductive health, including family planning, and mandates local governments in highly-urbanized cities to operate mobile health care services, which shall, aside from providing health care goods and services, disseminate knowledge and information on reproductive health.

Aside from capacity-building, the DOH is also required to update local govemment units with appropriate information and resources to keep the latter updated on current studies and researches relating to family planning. These pieces of information shall, presumably, include information issued by the Food and Drugs Administration regarding the use of and safety of contraceptives.

86 Further, the RH Law mandates the DOH to disseminate information and train local governments as regards its reproductive health care programs, and provide them with the necessary supplies and equipment. Local government units, in turn, are mandated to train their respective barangay health workers and other barangay volunteers on the promotion of reproductive health.

87 In this jurisdiction, however, such claims are most often brought as a civil action for damages under Article 2176 of the Civil Code, and in some instances, as a criminal case under Article 365 of the Revised Penal Code, Cruz v. Court of Appeals, G.R. No. 122445, November 18, 1997.

88 Under Presidential Decree No. 223, the Profess ional Regulation Commission exercises supervisory powers over professional boards; these professional boards exercise administrative, quasi-legislative, and quasi-judicial powers over their respective professions. This includes investigating and adjudicating administrative cases against professionals. Professional Regulation Commission, Professional Regulatory Boards, at http://www.prc.gov.ph/prb/. Doctors, for instance, follow the Code of Ethics of the Board of Medicine of the Philippine Regulatory Commission (PRC) and the Code of Ethics of Medical Profession of the Philippine Medical Association (PMA). Complaints regarding a violation of these codes may be taken cognizance by the Commission on Ethics of the PMA (Section 3A, PMA By-laws), or by the Board of Medical Examiners (Section 22, Rep. Act No. 2382).

89 Doctors who are public officials are subject to Civil Service Laws and the Code of Conduct and Ethical Standards for Public Officials and Employees. See, for instance, Office of the Ombudsman v. Court of Appeals and Dr. Macabulos, G.R. No. 159395, May 7, 2008.


The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

"The most important thing we decide
is what not to decide."
Brandeis, J.1

LEONEN, J.:

The Responsible Parenthood and Reproductive Health Act of 2012 should not be declared unconstitutional in whole or in any of its parts given the petitions filed in this case.

None of the petitions properly present an "actual case or controversy," which deserves the exercise of our awesome power of judicial review.2 It is our duty not to rule on the abstract and speculative issues barren of actual facts.3 These consolidated petitions, which contain bare allegations, do not provide the proper venue to decide on fundamental issues. The law in question is needed social legislation.

That we rule on these special civil actions for certiorari and prohibition — which amounts to a pre-enforcement free-wheeling facial review of the statute and the implementing rules and regulations4 — is very bad precedent. The issues are far from justiciable. Petitioners claim in their class suits that they entirely represent a whole religion,5 the Filipino nation6 and, worse, all the unborn.7 The intervenors also claim the same representation: Filipinos and Catholics.8 Many of the petitions also sue the President of the Republic.9

We should apply our rules rigorously and dismiss these cases. The transcendental importance of the issues they want us to decide will be better served when we wait for the proper cases with the proper parties suffering real, actual or more imminent injury. There is no showing of an injury so great and so imminent that we cannot wait for these cases.

Claims relating to the beginning of life, the relationship of conscientious objection and the right to religion, the effects of contraception, and even the ponencia’s claim that the family is put in danger if one spouse decides when there is a disagreement between them are best decided within their real contexts so that we will be able to narrowly tailor the doctrines in our decision.10 The danger of ruling on abstract cases is that we foreclose real litigation between real parties.11 The danger of an advisory opinion is that we are forced to substitute our own imagination of the facts that can or will happen. In an actual case, there is judicial proof of the real facts that frame our discretion.

The law clearly adopts a policy against abortion and prohibits abortifacients.12 The definition of abortifacients is sufficiently broad to cover many moral convictions relating to the beginning of life.13 We do not need to decide on these issue barren of actual facts that can sharpen factual and legal positions.

The court cannot make a declaration on the beginning of life. Any declaration on this issue will be fraught with contradictions. Even the Constitutional Commissioners were not in full agreement; hence, the use of the word "conception" rather than "fertilized ovum" in Article II, Section 12 of the Constitution.14 There were glaring factual inaccuracies peddled during their discussion.15

Moreover, declaring the beginning of life complicates future constitutional adjudication. This will have real repercussions on, among others, acceptable medical procedures for ectopic pregnancies,16 medical complications as a result of pregnancy resulting from sexual assaults,17 and on assisted reproductive technologies.18

The petitions have failed to present clear cases when the provisions for conscientious objection would truly amount to a violation of religion. They have not distinguished the relationship of conscience and specific religious dogma.19 They have not established religious canon that conflict with the general provision of Sections 7, 17 and 23 of the law. The comments in intervention20 in fact raise serious questions regarding what could be acceptable Catholic doctrine on some issues of contraception and sex as only for procreation.

The majority has decided to nullify portions of the law on the basis of inchoate Catholic doctrine without considering that the law as phrased would be acceptable to other faiths, consciences and beliefs. Due to the failure of the petitioners to present actual cases, it cannot be possible to see whether their religious objection can be accommodated in the application and interpretation of the law rather than nullify the provisions wholesale.

We should tread carefully when what is involved is a religion that is not the minority. Invocations of religious freedom can be a disguised way of imposing the dominant faith on others. This is especially true in physician-patient relationships. While the physician may have her or his own religious beliefs, this should not improperly dictate on the range of services that is wanted and needed by the patient.21 Again, there are no actual cases in specific contexts with clear religious beliefs pertaining to accepted dogma of a religion established by the petitions. The proposed declaration of unconstitutionality of portions of Section 23 is premature and inadvisable. It also amounts to a judicial amendment of the physician’s oath.

The law breaks the deadlock when there is disagreement between the spouses as to whether to avail of a reproductive health technology.22 The ponencia proposes that this violates the right to family.23 This is one conclusion. The other is that it allows the couple to have a final decision and not continue with a perennial conflict. The other possibility here is that the man, who most often is not the one who avails of the reproductive health technology, dictates on the woman. This will then result in a violation of the requirement of fundamental equality in Article II, Section 14 of the Constitution.24 The majority, in refusing to acknowledge the autonomy of individuals over their own bodies even in the context of marriage, has just strengthened patriarchy and increased the possibility for spousal abuse.

All the petitions are premature. At worse, the petitions attempt to impose a moral or political belief upon the others by tempting this court to use its power of judicial review.

This court is not the venue to continue the brooding and vociferous political debate that has already happened and has resulted in legislation.25

Constitutional issues normally arise when the right and obligations become doubtful as a result of the implementation of the statute. This forum does not exist to undermine the democratically deliberated results coming from the Congress and approved by the President. Again, there is no injury to a fundamental right arising from concrete facts established with proof. Rather, the pleadings raise grave moral and philosophical issues founded on facts that have not yet happened. They are the product of speculation by the petitioners.

To steeled advocates who have come to believe that their advocacy is the one true moral truth, their repeated view may seem to them as the only factual possibility. Rabid advocacy of any view will be intolerant of the nuanced reality that proceeds from conscious and deliberate examination of facts.

This kind of advocacy should not sway us.

Our competence is to decide on legal principle only in concrete controversies. We should jealously and rigorously protect the principle of justiciability of constitutional challenges. We should preserve our role within the current constitutional order. We undermine the legitimacy of this court when we participate in rulings in the abstract because there will always be the strong possibility that we will only tend to mirror our own personal predilections. We should thus adopt a deferential judicial temperament especially for social legislation.

This law should not be declared as unconstitutional, in whole or in part, on the basis of the consolidated petitions. The status quo ante order against the Responsible Parenthood and Reproductive Health Act of 2012 or Republic Act No. 10354 (RH Law) should be lifted immediately.

There should be no further obstacle in having the entire law fully implemented.

I

No Actual Controversy,

"Facial Review" is Improper

It has never been the constitutional mandate of the Supreme Court to answer all of life’s questions. It is endowed instead with the solemn duty to determine when it should decline to decide with finality questions that are not legal and those that are theoretical and speculative. This court’s duty includes its ability to stay its hand when the issues presented are not justiciable.

The requirement in constitutional adjudication is that we decide only when there is a "case or controversy."26 This is clear in the second paragraph of Article VIII, Section 1 of the Constitution, thus:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied)

The requirement for a "case" or "controversy" locates the judiciary in the scheme of our constitutional order. It defines our role and distinguishes this institution from the other constitutional organs.

The ponencia claims that there is an actual case and controversy existing in the present controversy, and it is ripe for determination.27 The ponente reasons that "[c]onsidering that the RH Law and its implementing rules have already taken effect, and considering that the budgetary measures to carry out the law have already been passed, it is evident that the subject petitions present a justiciable controversy. As stated earlier, when an action of the legislative branch is seriously alleged to have infringed the Constitution, it not only becomes a right, but also a duty of the Judiciary to [settle] the dispute."28

I disagree.

An actual case or controversy is "one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice."29 To be justiciable, the issues presented must be "‘definite and concrete, touching the legal relations of parties having adverse legal interest;’ a real and substantial controversy admitting of specific relief."30 The term justiciability refers to the dual limitation of only considering in an adversarial context the questions presented before courts, and in the process, the courts’ duty to respect its co-equal branches of government’s powers and prerogatives under the doctrine of separation of powers.31

There is a case or controversy when there is a real conflict of rights or duties arising from actual facts. These facts, properly established in court through evidence or judicial notice, provide the natural limitations upon judicial interpretation of the statute. When it is claimed that a statute is inconsistent with a provision of the Constitution, the meaning of a constitutional provision will be narrowly drawn.

Without the necessary findings of facts, this court is left to speculate leaving justices to grapple within the limitations of their own life experiences. This provides too much leeway for the imposition of political standpoints or personal predilections of the majority of this court. This is not what the Constitution contemplates. Rigor in determining whether controversies brought before us are justiciable avoids the counter majoritarian difficulties attributed to the judiciary.

Without the existence and proper proof of actual facts, any review of the statute or its implementing rules will be theoretical and abstract. Courts are not structured to predict facts, acts or events that will still happen. Unlike the legislature, we do not determine policy. We read law only when we are convinced that there is enough proof of the real acts or events that raise conflicts of legal rights or duties. Unlike the executive, our participation comes in after the law has been implemented. Verily, we also do not determine how laws are to be implemented.

The existence of a law or its implementing orders or a budget for its implementation is far from the requirement that there are acts or events where concrete rights or duties arise. The existence of rules do not substitute for real facts.

Petitioners cite Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP)32 as basis for asserting that this court can take cognizance of constitutional cases without actual controversies. In that case, this court was asked to rule on the validity of the Memorandum of Agreement on the Ancestral Domain (MOA-AD) between the GRP and the Moro Islamic Liberation Front (MILF) which included provisions on the definition of the "Bangsamoro" people; the "Bangsamoro Juridical Entity" (BJE); territory of the Bangsamoro homeland; the total production sharing between the central government and the BJE relating to natural resources; and "associative relationship" with the central government.33

Even in that case, this court acknowledged the requirement of an actual case or controversy in exercising the power of judicial review.

The power of judicial review is limited to actual cases or controversies. Courts decline to issue advisory opinions or to resolve hypothetical or feigned problems, or mere academic questions. The limitation of the power of judicial review to actual cases and controversies defines the role assigned to the judiciary in a tripartite allocation of power, to assure that the courts will not intrude into areas committed to the other branches of government.34

This court then ruled that the petitions were ripe for adjudication because of: "[1] the failure of respondents to consult the local government units or communities affected constitutes a departure by respondents from their mandate under E.O. No. 3; [2] respondents exceeded their authority by the mere act of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by any branch of government is a proper matter for judicial review."35 Citing David v. Macapagal-Arroyo, this court allowed petitioners, petitioners-in-intervention, and intervening respondents’ claims of locus standi due to the paramount public interest or transcendental importance of the issues involved.

The actual case in Province of North Cotabato was triggered by the process invoked in the negotiation of the agreement and the claim that it exceeded the authority of the government panel in talks with the Moro Islamic Liberation Front (MILF). Executive Order No. 3 was already implemented by the acts of the negotiating panel.

The ponencia’s reading of Province of North Cotabato is inaccurate. My esteemed colleague holds:

x x x Citing precedents, the Court ruled that the fact of the law or act in question being not yet effective does not negate ripeness. Concrete acts under a law are not necessary to render the controversy ripe. Even a singular violation of the Constitution and/or law is enough to awaken judicial duty.

In this case, the Court is of the view that an actual case or controversy exists and that the same is ripe for judicial determination. Considering that the RH Law and its implementing rules have already taken effect, and that the budgetary measures to carry out the law have already been passed, it is evident that the subject petitions present a justiciable controversy. As stated earlier, when an action of the legislative branch is seriously alleged to have infringed the Constitution, it not only becomes a right, but also a duty of the Judiciary to settle the dispute.36 (Emphasis in the original)

Unlike Province of North Cotabato, there is yet no implementation of the RH law. The waiver of justiciability is the exception. It is not the general rule.37 Province of North Cotabato involved a peculiar set of facts that required this court to exercise its power of judicial review. The respondents attempted to put the constitutional question outside the court’s sphere of judicial review through the performance of acts that rendered a ripening case moot and academic.38

In Garcia v. Executive Secretary,39 this court was faced with the issue of the constitutionality of Section 19 of Republic Act No. 847940 entitled "An Act Deregulating The Downstream Oil Industry And For Other Purposes." This court held that there was no justiciable controversy in the case as the issue raised went into the policy or wisdom of the law, thus:

Stripped to its core, what petitioner Garcia raises as an issue is the propriety of immediately and fully deregulating the oil industry. Such determination essentially dwells on the soundness or wisdom of the timing and manner of the deregulation Congress wants to implement through R.A. No. 8497. Quite clearly, the issue is not for us to resolve; we cannot rule on when and to what extent deregulation should take place without passing upon the wisdom of the policy of deregulation that Congress has decided upon. To use the words of Baker v. Carr, the ruling that petitioner Garcia asks requires "an initial policy determination of a kind clearly for non-judicial discretion"; the branch of government that was given by the people the full discretionary authority to formulate the policy is the legislative department.

x x x x

Petitioner Garcia’s thesis readily reveals the political, hence, non-justiciable, nature of his petition; the choice of undertaking full or partial deregulation is not for this Court to make.41

Then in Atty. Lozano v. Speaker Nograles,42 this court reiterated that "[i]n our jurisdiction, the issue of ripeness [which is an aspect of the case or controversy requirement] is generally treated in terms of actual injury to the plaintiff. Hence, a question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it x x x [or when] an action has already been accomplished or performed by a branch of government x x x."43

In Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,44 this court declined to rule on the constitutionality of Republic Act No. 9372 or "An Act to Secure the State and Protect Our People from Terrorism," otherwise known as the Human Security Act of 2007. Again, with respect to the requirement of the existence of an actual case, this court held:

As early as Angara v. Electoral Commission, the Court ruled that the power of judicial review is limited to actual cases or controversies to be exercised after full opportunity of argument by the parties. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.

An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion.

Information Technology Foundation of the Philippines v. COMELEC cannot be more emphatic:

"[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging. The controversy must be justiciable—definite and concrete, touching on the legal relations of parties having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other hand; that is, it must concern a real and not merely a theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts."

Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly Urbanized City was held to be premature as it was tacked on uncertain, contingent events. Similarly, a petition that fails to allege that an application for a license to operate a radio or television station has been denied or granted by the authorities does not present a justiciable controversy, and merely wheedles the Court to rule on a hypothetical problem.

The Court dismissed the petition in Philippine Press Institute v. Commission on Elections for failure to cite any specific affirmative action of the Commission on Elections to implement the assailed resolution. It refused, in Abbas v. Commission on Elections, to rule on the religious freedom claim of the therein petitioners based merely on a perceived potential conflict between the provisions of the Muslim Code and those of the national law, there being no actual controversy between real litigants.

The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad infinitum.

The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any constitutional interest suffices to provide a basis for mounting a constitutional challenge. This, however, is qualified by the requirement that there must be sufficient facts to enable the Court to intelligently adjudicate the issues.45 (Emphasis supplied)

Recently, this court in Corales v. Republic46 passed upon the ripeness or prematurity of a petition for prohibition assailing the Audit Observation Memorandum (AOM) issued by the Provincial State Auditor of Laguna against petitioner as Mayor. We again held that:

x x x this Court can hardly see any actual case or controversy to warrant the exercise of its power of judicial review. Settled is the rule that for the courts to exercise the power of judicial review, the following must be extant: (1) there must be an actual case calling for the exercise of judicial power; (2) the question must be ripe for adjudication; and (3) the person challenging must have the "standing." An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a mere hypothetical or abstract difference or dispute. There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence. Closely related thereto is that the question must be ripe for adjudication. A question is considered ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it.

x x x x

The requisites of actual case and ripeness are absent in the present case. To repeat, the AOM issued by Andal merely requested petitioner Corales to comment/reply thereto. Truly, the AOM already contained a recommendation to issue a Notice of Disallowance; however, no Notice of Disallowance was yet issued. More so, there was no evidence to show that Andal had already enforced against petitioner Corales the contents of the AOM. x x x. The action taken by the petitioners to assail the AOM was, indeed, premature and based entirely on surmises, conjectures and speculations that petitioner Corales would eventually be compelled to reimburse petitioner Dr. Angeles’ salaries, should the audit investigation confirm the irregularity of such disbursements.47

The doctrinal character of the requirement of an actual case may also be inferred from the tenor of the reservations of several members of this court in Province of North Cotabato.48

Then Justice Chico-Nazario, in voting to grant the motion to dismiss of the Office of Solicitor General and to dismiss the petitions, pointed out that:

The Court should not feel constrained to rule on the Petitions at bar just because of the great public interest these cases have generated. We are, after all, a court of law, and not of public opinion. The power of judicial review of this Court is for settling real and existent dispute, it is not for allaying fears or addressing public clamor. In acting on supposed abuses by other branches of government, the Court must be careful that it is not committing abuse itself by ignoring the fundamental principles of constitutional law.

x x x. The Court must accord a co-equal branch of the government nothing less than trust and the presumption of good faith.

x x x x

Upon the Executive Department falls the indisputably difficult responsibility of diffusing the highly volatile situation in Mindanao resulting from the continued clashes between the Philippine military and Muslim rebel groups. In negotiating for peace, the Executive Department should be given enough leeway and should not be prevented from offering solutions which may be beyond what the present Constitution allows, as long as such solutions are agreed upon subject to the amendment of the Constitution by completely legal means.49 (Emphasis supplied)

Justice Velasco in that case emphasized the need to be vigilant in protecting the doctrine of separation of powers enshrined in our Constitution, hence:

Over and above the foregoing considerations, however, is the matter of separation of powers which would likely be disturbed should the Court meander into alien territory of the executive and dictate how the final shape of the peace agreement with the MILF should look like. The system of separation of powers contemplates the division of the functions of government into its three (3) branches x x x. Consequent to the actual delineation of power, each branch of government is entitled to be left alone to discharge its duties as it sees fit. Being one such branch, the judiciary, as Justice Laurel asserted in Planas v. Gil, "will neither direct nor restrain executive [or legislative action]." Expressed in another perspective, the system of separated powers is designed to restrain one branch from inappropriate interference in the business, or intruding upon the central prerogatives, of another branch; it is a blend of courtesy and caution, "a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other." x x x. The sheer absurdity of the situation where the hands of executive officials, in their quest for a lasting and honorable peace, are sought to be tied lest they agree to something irreconcilable with the Constitution, should not be lost on the Court.

Under our constitutional set up, there cannot be any serious dispute that the maintenance of the peace, insuring domestic tranquility and the suppression of violence are the domain and responsibility of the executive. Now then, if it be important to restrict the great departments of government to the exercise of their appointed powers, it follows, as a logical corollary, equally important, that one branch should be left completely independent of the others, independent not in the sense that the three shall not cooperate in the common end of carrying into effect the purposes of the constitution, but in the sense that the acts of each shall never be controlled by or subjected to the influence of either of the branches.50

Eloquently, Justice Brion in his dissenting opinion in Province of North Cotabato asserted:

x x x. Where policy is involved, we are bound by our constitutional duties to leave the question for determination by those duly designated by the Constitution—the Executive, Congress, or the people in their sovereign capacity.

In the present case, the peace and order problems of Mindanao are essentially matters for the Executive to address, with possible participation from Congress and the sovereign people as higher levels of policy action arise. Its search for solutions, in the course of several presidencies, has led the Executive to the peace settlement process. As has been pointed out repetitively in the pleadings and the oral arguments, the latest move in the Executive’s quest for peace—the MOA-AD—would have not been a good deal for the country if it had materialized. This Court, however, seasonably intervened and aborted the planned signing of the agreement. The Executive, for its part, found it wise and appropriate to fully heed the signals from our initial action and from the public outcry the MOA-AD generated; it backtracked at the earliest opportunity in a manner consistent with its efforts to avoid or minimize bloodshed while preserving the peace process. At the moment, the peace and order problem is still with the Executive where the matter should be; the initiative still lies with that branch of government. The Court’s role, under the constitutional scheme that we are sworn to uphold, is to allow the initiative to be where the Constitution says it should be. We cannot and should not interfere unless our action is unavoidably necessary because the Executive is acting beyond what is allowable, or because it has failed to act in the way it should act, under the Constitution and our laws.

x x x x

Rather than complicate the issues further with judicial pronouncements that may have unforeseen or unforeseeable effects on the present fighting and on the solutions already being applied, this Court should exercise restraint as the fears immediately generated by a signed and concluded MOA-AD have been addressed and essentially laid to rest. Thus, rather than pro-actively act on areas that now are more executive than judicial, we should act with calibrated restraint along the lines dictated by the constitutional delineation of powers. Doing so cannot be equated to the failure of this Court to act as its judicial duty requires; as I mentioned earlier, we have judicially addressed the concerns posed with positive effects and we shall not hesitate to judicially act in the future, as may be necessary, to ensure that the integrity of our constitutional and statutory rules and standards are not compromised. If we exercise restraint at all, it is because the best interests of the nation and our need to show national solidarity at this point so require, in order that the branch of government in the best position to act can proceed to act.

x x x x

x x x. We can effectively move as we have shown in this MOA-AD affair, but let this move be at the proper time and while we ourselves observe the limitations the Constitution commonly impose on all branches of government in delineating their respective roles.51 (Emphasis supplied)

It is true that the present Constitution grants this court with the exercise of judicial review when the case involves the determination of "grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."52 This new feature of the 1987 Constitution affects our political question doctrine. It does not do away with the requirement of an actual case. The requirement of an actual case is fundamental to the nature of the judiciary.

No less than Justice Vicente V. Mendoza implied that the rigorous requirement of an actual case or controversy is determinative of the nature of the judiciary. Thus:

[i]nsistence on the existence of a case or controversy before the judiciary undertakes a review of legislation gives it the opportunity, denied to the legislature, of seeing the actual operation of the statute as it is applied to actual facts and thus enables to it to reach sounder judgment.53

In the recent case of Belgica, et al. v. Executive Secretary, we pointed out:54

[b]asic in litigation raising constitutional issues is the requirement that there must be an actual case or controversy. This Court cannot render an advisory opinion. We assume that the Constitution binds all other constitutional departments, instrumentalities, and organs. We are aware that in the exercise of their various powers, they do interpret the text of the Constitution in the light of contemporary needs that they should address. A policy that reduces this Court to an adviser for official acts by the other departments that have not yet been done would unnecessarily tax our resources. It is inconsistent with our role as final arbiter and adjudicator and weakens the entire system of the Rule of Law. Our power of judicial review is a duty to make a final and binding construction of law. This power should generally be reserved when the departments have exhausted any and all acts that would remedy any perceived violation of right. The rationale that defines the extent of our doctrines laying down exceptions to our rules on justiciability are clear: Not only should the pleadings show a convincing violation of a right, but the impact should be shown to be so grave, imminent, and irreparable that any delayed exercise of judicial review or deference would undermine fundamental principles that should be enjoyed by the party complaining or the constituents that they legitimately represent.

The requirement of an "actual case," thus, means that the case before this Court "involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution;

the case must not be moot or academic based on extra-legal or other similar considerations not cognizable by a court of justice." Furthermore, "the controversy needs to be definite and concrete, bearing upon the legal relations of parties who are pitted against each other due to their adverse legal interests." Thus, the adverse position of the parties must be sufficient enough for the case to be pleaded and for this Court to be able to provide the parties the proper relief/s prayed for.

The requirement of an ‘actual case’ will ensure that this Court will not issue advisory opinions. It prevents us from using the immense power of judicial review absent a party that can sufficiently argue from a standpoint with real and substantial interests.55

Regretfully, the ponencia takes inconsistent positions as to whether the petitions do allege actual cases. On the issue of the violation of the right to health under Section 9 of the law,56 he correctly held that the constitutional challenge is premature:

x x x not a single contraceptive has yet been submitted to the FDA pursuant [to the] RH Law. It [behooves] the Court to await its determination which drugs or devices are declared by the FDA as safe, it being the agency tasked to ensure that food and medicines available to the public are safe for public consumption. x x x Indeed, the various kinds of contraceptives must first be measured up to the constitutional yardstick x x x to be determined as the case presents itself.57 (Emphasis in the original)

Moreover, the ponencia also correctly held that a discussion on the constitutionality of Section 14 of the law, pertaining to the teaching of Age- and Development-Appropriate Reproductive Health Education,58 is not yet ripe for determination:

x x x any attack on the validity of Section 14 of the RH Law is premature, as the Department of Education, Culture and Sports have yet to formulate any curriculum on age-appropriate reproductive health education. At this point, one can only speculate [on the] contents, manner and medium of instruction that would be used to educate the adolescents and whether [these] would contradict the religious beliefs of petitioners, and validate their apprehensions. x x x.

x x x x

While the Court notes the possibility that educators could raise their objection to their participation in the reproductive health education program provided under Section 14 of the RH Law on the ground that the same violates their religious beliefs, the Court reserves its judgment should an actual case be filed before it.59 (Emphasis in the original)

Unfortunately, the ponencia failed to discuss how several provisions of the RH Law became vulnerable to a facial attack, whereas other provisions must await an actual case or controversy to pass upon its constitutionality. The ponencia explained that the:

x x x foregoing petitions have seriously alleged that the constitutional human right to life, speech and religion and other fundamental rights mentioned above have been violated by the assailed legislation, the Court has authority to take cognizance of these kindred petitions and determine if the RH Law can indeed pass constitutional scrutiny.60

I restate, for purposes of emphasis, parts of my disquisition on facial challenges in my dissenting and concurring opinion in Disini v. Secretary of Justice.61 After all, the challenges to this present law and the Cybercrime Prevention Act of 2012 are the public’s reaction to the increasingly liberal but disturbing treatment that we have given on the issue of rigorous analysis for the justiciability of controversies brought before us.

The invalidation of the statute is either "on its face" or "as applied." The only instance when a facial review of the law is not only allowed but also essential is "when the provisions in question are so broad that there is a clear and imminent threat that actually operates or it can be used as a prior restraint of speech."62

In Cruz v. Secretary of Environment and Natural Resources,63 Justice Vicente V. Mendoza explained the difference of an "as applied" challenge from an "on its face" challenge:

The only instance where a facial challenge to a statute is allowed is when it operates in the area of freedom of expression. In such instance, the overbreadth doctrine permits a party to challenge the validity of a statute even though as applied to him it is not unconstitutional but it might be if applied to others not before the Court whose activities are constitutionally protected. Invalidation of the statute "on its face" rather than "as applied" is permitted in the interest of preventing a "chilling" effect on freedom of expression. But in other cases, even if it is found that a provision of a statute is unconstitutional, courts will decree only partial invalidity unless the invalid portion is so far inseparable from the rest of the statute that a declaration of partial invalidity is not possible.64 (Emphasis supplied)

Subsequently, in Estrada v. Sandiganbayan,65 Justice Mendoza culled a more extensive rule regarding facial or "on its face" challenges, thus:

[a] facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative Act is … the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." x x x.

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." x x x.66 (Emphasis supplied)

Similarly, this court in Prof. David v. Pres. Macapagal-Arroyo67 laid down guides when a facial challenge may be properly brought before this court, thus:

First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their faces" statutes in free speech cases, also known under the American Law as First Amendment cases.

x x x x

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only "spoken words" and again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state regulation.

Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used "sparingly and only as a last resort," and is "generally disfavored;" The reason for this is obvious. Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably be applied unconstitutionally to others, i.e., in other situations not before the Court. A writer and scholar in Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied for" so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad law’s "very existence may cause others not before the court to refrain from constitutionally protected speech or expression." An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction that its very existence may cause others not before the Court to refrain from constitutionally protected speech or expression. In Younger v. Harris, it was held that:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully, since the challenger must establish that there can be no instance when the assailed law may be valid. Here, petitioners did not even attempt to show whether this situation exists.68 (Emphasis in the original)

A similar view was adopted by this court in Romualdez v. Hon. Sandiganbayan69 and Spouses Romualdez v. Commission on Elections.70 Unfortunately, in resolving the motion for reconsideration in Spouses Romualdez v. Commission on Elections,71 this court seemed to have expanded the scope of the application of facial challenges. Hence:

x x x. The rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge.72

However, the basic rule was again restated in Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council:73

Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities.

Justice Mendoza accurately phrased the subtitle in his concurring opinion that the vagueness and overbreadth doctrines, as grounds for a facial challenge, are not applicable to penal laws.

A litigant cannot thus successfully mount a facial challenge against a criminal statute on either vagueness or overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling effect" on protected speech, the exercise of which should not at all times be abridged.

As reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear an "in terrorem effect" in deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of constitutionally protected rights.

The Court reiterated that there are "critical limitations by which a criminal statute may be challenged" and "underscored that an ‘on-its-face’ invalidation of penal statutes x x x may not be allowed."

[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution would be possible. A strong criticism against employing a facial challenge in the case of penal statutes, if the same is allowed, would effectively go against the grain of the doctrinal requirement of an existing and concrete controversy before judicial power may be appropriately exercised.

A facial challenge against a penal statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third parties who are not before it. As I have said in my opposition to the allowance of a facial challenge to attack penal statutes, such a test will impair the State’s ability to deal with crime. If warranted, there would be nothing that can hinder an accused from defeating the State’s power to prosecute on a mere showing that, as applied to third parties, the penal statute is vague or overbroad, notwithstanding that the law is clear as applied to him.

It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to the litigants.

x x x x

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases, observed that the US Supreme Court has not recognized an overbreadth doctrine outside the limited context of the First Amendment, and that claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words. In Virginia v. Hicks, it was held that rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or speech-related conduct. Attacks on overly broad statutes are justified by the "transcendent value to all society of constitutionally protected expression."74 (Emphasis and underscoring in the original)

The prevailing doctrine today is that:

a facial challenge only applies to cases where the free speech and its cognates are asserted before the court. While as a general rule penal statutes cannot be subjected to facial attacks, a provision in a statute can be struck down as unconstitutional when there is a clear showing that there is an imminent possibility that its broad language will allow ordinary law enforcement to cause prior restraints of speech and the value of that speech is such that its absence will be socially irreparable.75

Broken down into its elements, a facial review should only be allowed when:

First, the ground for the challenge of the provision in the statute is that it violates freedom of expression or any of its cognates;

Second, the language in the statute is impermissibly vague;

Third, the vagueness in the text of the statute in question allows for an interpretation that will allow prior restraints;

Fourth, the "chilling effect" is not simply because the provision is found in a penal statute but because there can be a clear showing that there are special circumstances which show the imminence that the provision will be invoked by law enforcers;

Fifth, the application of the provision in question will entail prior restraints; and

Sixth, the value of the speech that will be restrained is such that its absence will be socially irreparable. This will necessarily mean balancing between the state interests protected by the regulation and the value of the speech excluded from society.76

Facial challenges can only be raised on the basis of overbreadth and not on vagueness. Southern Hemisphere demonstrated how vagueness relates to violations of due process rights, whereas facial challenges are raised on the basis of overbreadth and limited to the realm of freedom of expression.

None of these petitions justify a facial review of this social legislation. The free exercise of one’s religion may be a cognate of the freedom of expression. However, the petitions have not properly alleged the religion, the religious dogma, the actual application of the religious dogma where a repugnancy can be shown. They have also failed to demonstrate that the violation of the amorphous religious dogmas that they imagine should result in the invalidation of statutory text rather than simply an adjustment in its interpretation and in its application.

II

No Locus Standi

Besides, the consolidated cases are improper class suits that should be dismissed outright.

A class suit is allowed under the rules77 if those who instituted the action are found to be sufficiently numerous and representative of the interests of all those they seek to represent. They must be so numerous that it would be impractical to bring them all to court or join them as parties. Lastly, a common interest in the controversy raised must be clearly established.78

These requirements afford protection for all those represented in the class suit considering that this court’s ruling will be binding on all of them. We should be especially cautious when the class represented by a few in an alleged class suit is the "entire Filipino Nation" or all the adherents of a particular religion. This court must be convinced that the interest is so common that there can be no difference in the positions and points of view of all that belong to that class. Anything less than this standard will be an implied acceptance that in this important adjudication of alleged constitutional rights, the views of a few can be imposed on the many.

In the 1908 case of Ibañes v. Roman Catholic Church,79 13 plaintiffs filed the complaint for themselves and on behalf of the other inhabitants of the town of Ternate against the Roman Catholic Church for the proprietorship of an image of the Holy Child.80 This court held that the action could not be maintained.

It sufficiently appears from the record in this case that it is a controversy between the Roman Catholic Church on one side and the Independent Filipino Church on the other. That it is the purpose of the plaintiffs, if they secure possession of the image, to place it in the chapel of the Independent Church is also very clear. What number of the inhabitants of the town (2,460 according to the census) are members of the Roman Catholic Church and what part are members of the Independent Filipino Church does not appear. But it is very apparent that many of the inhabitants are opposed to the transfer of the image from the Roman Catholic Church. Under the circumstances, the thirteen plaintiffs do not fairly represent all of the inhabitants of the town. Their interest and the interests of some of the others are diametrically opposed. For this reason this action can not be maintained.81 (Emphasis supplied)

In the 1974 case of Mathay v. Consolidated Bank and Trust Co.,82 this court affirmed the dismissal of a complaint captioned as a class suit for failure to comply with the requisite that the parties who filed the class suit must be sufficiently numerous and representative:

The complaint in the instant case explicitly declared that the plaintiffs-appellants instituted the "present class suit under Section 12, Rule 3, of the Rules of Court in behalf of CMI subscribing stockholders" but did not state the number of said CMI subscribing stockholders so that the trial court could not infer, much less make sure as explicitly required by the statutory provision, that the parties actually before it were sufficiently numerous and representative in order that all interests concerned might be fully protected, and that it was impracticable to bring such a large number of parties before the court.

x x x x

Appellants, furthermore, insisted that insufficiency of number in a class suit was not a ground for dismissal of one action. This Court has, however, said that where it appeared that no sufficient representative parties had been joined, the dismissal by the trial court of the action, despite the contention by plaintiffs that it was a class suit, was correct.83 (Emphasis supplied)

In Re: Request of the Heirs of the Passengers of Doña Paz,84 a class suit was filed by 27 named plaintiffs on behalf and in representation of "the approximately 4,000 persons x x x (who also) are all close relatives and legal heirs of the passengers of the Doña Paz."85 This court distinguished class suits86 from permissive joinder of parties:87

x x x. What makes the situation a proper case for a class suit is the circumstance that there is only one right or cause of action pertaining or belonging in common to many persons, not separately or severally to distinct individuals.

x x x x

The other factor that serves to distinguish the rule on class suits from that of permissive joinder of parties is, of course, the numerousness of parties involved in the former. The rule is that for a class suit to be allowed, it is needful inter alia that the parties be so numerous that it would be impracticable to bring them all before the court.88

Finding that the case was improperly brought as a class suit, this court concluded that "it follows that the action may not be maintained by a representative few in behalf of all the others."89 Consequently, this court denied the authority to litigate in the form of a class suit.90

This ruling was again emphasized in Bulig-Bulig Kita Kamag-anak Association v. Sulpicio Lines, Inc.,91 making the ratio decidendi in Re: Request of the Heirs of the Passengers of Doña Paz binding precedent.92 These cases have been cited in a more recent jurisprudence in its discussion on the need to sufficiently represent all interests for a class suit to prosper.93

MVRS Publications, Inc. et al. v. Islamic Da’wah Council of the Philippines, Inc. et al.94 emphasized how adequacy of representation in a class suit is important in fully protecting the interests of those concerned:

In any case, respondents’ lack of cause of action cannot be cured by the filing of a class suit. As correctly pointed out by Mr. Justice Jose C. Vitug during the deliberations, "an element of a class suit is the adequacy of representation. In determining the question of fair and adequate representation of members of a class, the court must consider (a) whether the interest of the named party is coextensive with the interest of the other members of the class; (b) the proportion of those made parties as it so bears to the total membership of the class; and, (c) any other factor bearing on the ability of the named party to speak for the rest of the class.

The rules require that courts must make sure that the persons intervening should be sufficiently numerous to fully protect the interests of all concerned. In the present controversy, Islamic Da'wah Council of the Philippines, Inc., seeks in effect to assert the interests not only of the Muslims in the Philippines but of the whole Muslim world as well. Private respondents obviously lack the sufficiency of numbers to represent such a global group; neither have they been able to demonstrate the identity of their interests with those they seek to represent. Unless it can be shown that there can be a safe guaranty that those absent will be adequately represented by those present, a class suit, given its magnitude in this instance, would be unavailing.95

Class suits require that there is a possibility that those represented can affirm that their interests are properly raised in a class suit. The general rule must be that they be real and existing. In constitutional adjudication, this court must approach class suits with caution; otherwise, future generations or an amorphous class will be bound by a ruling which they did not participate in.

Not all these elements for a proper class suit are present in the petitions filed in these cases.

Petitioners James M. Imbong and Lovely-Ann C. Imbong, for themselves and in behalf of their minor children, Lucia Carlos Imbong and Bernadette Carlos Imbong, and Magnificat Child Development Center, Inc.96 filed their petition "as parents and as a class suit in representation of other parents and individuals similarly situated."97 They alleged that they are "Catholics who have deeply-held religious beliefs upon which Faith their conscience is rooted against complying with the mandates of the Act."98

Four persons and a juridical entity cannot be considered as sufficiently numerous and representative of the interests of "all other parents and individuals similarly situated."

Petitioners Alliance for the Family Foundation, Inc. (ALFI), represented by its President, Maria Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B. Luistro, et al.99 invoked Oposa v. Factoran, Jr. in filing their petition "on behalf of all generations of Filipinos yet unborn, who are in danger of being deprived of the right to life by R.A. No. 10354."100

The required common interest in the controversy can neither be determined nor proven in this case if those to be represented are yet to be born.

It is true that in Oposa v. Factoran, Jr.,101 intergenerational suits were introduced in our jurisdiction. However, this case must not be abused out of its context. Oposa is a novel case involving an environmental class suit. This environmental case involved minor petitioners who filed a complaint for the cancellation of all existing timber license agreements in the country. They were allowed to sue on behalf of future generations on the ground of "intergenerational responsibility," in relation to the constitutional right to a balanced and healthful ecology.102 The state of our ecology will certainly affect future generations regardless of ideology, philosophy or standpoints.

On the other hand, those who will only be born in the future may have different views regarding the various policy approaches on responsible parenthood and reproductive health. Hence, the commonality of the interest that will justify the presumption that the legal positions will be the same is not present.

In its petition, Task Force for Family and Life Visayas, Inc.103 alleged that it is "an association of men and women who have committed themselves to the protection of family and life, sanctity of marriage x x x."104 Its members are "Roman Catholics by faith" and are "spread throughout the Visayan region."105 The petitioners collectively seek relief "from the impending threat against their children, their respective families and the entire Filipino nation, their religious freedom and other constitutional rights they foresee and make known in this petition."106

Petitioners, by no stretch of the imagination, cannot be representative of the interests of "the entire Filipino nation." Not all Filipinos are Roman Catholics. Not all Filipinos are from the Visayas. Certainly not all Filipinos have a common interest that will lead to a common point of view on the constitutionality of the various provisions of the RH law.

Serve Life Cagayan de Oro City, Inc., represented by Dr. Nestor B. Lumicao, M.D. as President and in his personal capacity, Rosevale Foundation, Inc., represented by Dr. Rodrigo M. Alenton, M.D. as member of the school board and in his personal capacity, Rosemarie R. Alenton, Imelda G. Ibarra, CPA, Lovenia P. Naces, Ph.D., Anthony G. Nagac, Earl Anthony C. Gambe, and Marlon I. Yap also filed a petition consolidated with these cases.107

The individual petitioners alleged they are medical practitioners, members of the bar, educators, and various professionals who filed this petition "as parents and as a class suit in representation of other parents and individuals similarly situated."108 They are "devout and practicing Catholics whose religious beliefs find the mandatory provisions of the RH law obnoxious and unconscionable."109

The basis for representing Catholics because their religious beliefs find the RH law obnoxious and unconscionable is not shared by all Catholics. Again, the class is improperly defined and could not withstand judicial scrutiny. Their views may not be representative of the entire class they seek to represent.

Spouses Francisco S. Tatad and Maria Fenny C. Tatad and Alan F. Paguia alleged that they are representing, themselves, their posterity, and the rest of Filipino posterity.110 They instituted their action "in their capacity as concerned citizens, taxpayers, parents, grandparents, biological ancestors of all their descendants, born and unborn, conceived or not yet conceived, up to their remotest generation in the future within the context of Filipino posterity under the 1987 Constitution."111

Three individual petitioners cannot be considered as sufficiently numerous and representative of the interests "of the rest of Filipino posterity." There is no showing that future Filipinos will accept their point of view. No one can be certain of the interest of Filipinos in the future. No one can be certain that even their descendants will agree with their position.

Consequently, a common interest on the controversy with future Filipinos cannot be established.

In fact, petitioners Couples for Christ Foundation, Inc., et al.112 confirmed the existence of divergent opinions on the RH law among Filipinos when it stated that "the Filipino people, of whom majority are Catholics, have a strong interest in the final resolution of the issues on reproductive health, which has divided the nation for years."113

Pro-Life Philippines Foundation, Inc., represented by Lorna Melegrito as Executive Director and in her personal capacity, Joselyn B. Basilio, Robert Z. Cortes, Ariel A. Crisostomo, Jeremy I. Gatdula, Cristina A. Montes, Raul Antonio A. Nidot, Winston Conrad B. Padojinog, and Rufino L. Policarpio III also filed a petition.114

The individual petitioners instituted this action "as parents, and as a class suit in representation of other parents and individuals similarly situated."115 They alleged that the RH law is "oppressive, unjust, confiscatory and discriminatory specifically against herein petitioners – as parents, professionals, and faithful of the Catholic Church."116

Again, there is no showing that these individual petitioners are sufficiently numerous and representative of the interests of those they seek to represent.

The rationale for the dismissal of actions in these types of class suits is far from merely procedural. Since petitioners claim representation, the argument that they bring as well as the finality of the judgment that will be rendered will bind their principals. An improperly brought class suit, therefore, will clearly violate the due process rights of all those in the class. In these cases, certainly the entire Filipino nation, all the descendants of petitioners, all Catholics, and all the unborn will be bound even though they would have agreed with respondents or the intervenors.

Being improperly brought as class suits, these petitions should be dismissed.

Besides this infirmity, some of the petitions included the Office of the President as party respondent.117 Also on this basis, these petitions should be dismissed.

A sitting president cannot be sued.118 This immunity exists during the President’s incumbency only. The purpose is to preserve the dignity of the office that is necessary for its operations as well as to prevent any disruption in the conduct of official duties and functions.119 Without this immunity, a proliferation of suits would derail the focus of the office from addressing the greater needs of the country to attending each and every case filed against the sitting President, including the petty and harassment suits.

The doctrine of presidential immunity is not a surrender of the right to demand accountability from those who hold public office such as the President. The Constitution enumerates the grounds when a President may be impeached.120 This immunity is also no longer available to a non-sitting President. After the end of his or her tenure, he or she can be made criminally and civilly liable in the proper case.121

III
The Right to Life

Petitioners raise the issue of right to life under Article III, Section 1 of the Constitution in relation to the policy of equal protection of the life of the mother and of the unborn under Article II, Section 12. In this context, the right to life is viewed as the right to a corporeal existence.

The constitutional right to life has many dimensions. Apart from the protection against harm to one’s corporeal existence, it can also mean the "right to be left alone". The right to life also congeals the autonomy of an individual to provide meaning to his or her life. In a sense, it allows him or her sufficient space to determine quality of life. A law that mandates informed choice and proper access for reproductive health technologies should not be presumed to be a threat to the right to life. It is an affirmative guarantee to assure the protection of human rights.

The threat to corporeal existence

The policy taken by the law against abortion is clear. In the fifth paragraph of Section 2,122 the law provides:

The State likewise guarantees universal access to medically safe, non-abortifac[i]ent, effective, legal, affordable, and quality reproductive health care services, methods, devices, supplies which do not prevent the implantation of a fertilized ovum as determined by the Food and Drug Administration (FDA) and relevant information and education thereon according to the priority needs of women, children and other underprivileged sectors x x x. (Emphasis supplied)

Section 3,123 paragraph (d) likewise emphasizes the following as a guiding principle of implementation:

(d) The provision of ethical and medically safe, legal, accessible, affordable, non-abortifac[i]ent, effective and quality reproductive health care services and supplies is essential in the promotion of people’s right to health, especially those of women, the poor and the marginalized, and shall be incorporated as a component of basic health care[.] (Emphasis supplied)

Then, subparagraph (j) of the same section in this law states:

(j) While this Act recognizes that abortion is illegal and punishable by law, the government shall ensure that all women needing care for post-abortive complications and all other complications from pregnancy, labor and delivery and related issues shall be treated and counseled in a humane, nonjudgmental and compassionate manner in accordance with law and medical ethics[.] (Emphasis supplied)

Section 9124 of the law provides:

Sec. 9. The Philippine National Drug Formulary System and Family Planning Supplies. – The National Drug Formulary shall include hormonal contraceptives, intrauterine devices, injectibles and other safe, legal, non-abortifac[i]ent and effective family planning products and supplies. x x x. (Emphasis supplied)

Section 4, paragraph (a) of Republic Act No. 10354 defines abortifacient as:

(a) Abortifacient refers to 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.

This should have been sufficient to address the contention by petitioners that the law violates the right to life and that right to life means the right to a corporeal existence.

The ponencia found that the law was "consistent with the Constitution"125 because it "prohibits any drug or device that induces abortion"126 and because it "prohibits any drug or device [that prevents] the fertilized ovum to reach and be implanted in the mother’s womb."127

When life begins, not an issue.

However, the court cannot make a declaration of when life begins. Such declaration is not necessary and is a dictum that will unduly confuse future issues.

First, there is, as yet, no actual controversy that can support our deliberation on this specific issue.

Second, the court cannot rely on the discussion of a few commissioners during the drafting of the constitution by the Constitutional Commission.

In Civil Liberties Union v. Executive Secretary,128 this court noted:

A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose.129

However, in the same case, this court also said:130

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face." The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers’s understanding thereof.131 (Emphasis supplied)

The meaning of constitutional provisions should be determined from a contemporary reading of the text in relation to the other provisions of the entire document. We must assume that the authors intended the words to be read by generations who will have to live with the consequences of the provisions. The authors were not only the members of the Constitutional Commission but all those who participated in its ratification. Definitely, the ideas and opinions exchanged by a few of its commissioners should not be presumed to be the opinions of all of them. The result of the deliberations of the Commission resulted in a specific text, and it is that specific text—and only that text—which we must read and construe.

The preamble establishes that the "sovereign Filipino people" continue to "ordain and promulgate" the Constitution. The principle that "sovereignty resides in the people and all government authority emanates from them"132 is not hollow. Sovereign authority cannot be undermined by the ideas of a few Constitutional Commissioners participating in a forum in 1986 as against the realities that our people have to face in the present.

There is another, more fundamental, reason why reliance on the discussion of the Constitutional Commissioners should not be accepted as basis for determining the spirit behind constitutional provisions. The Constitutional Commissioners were not infallible. Their statements of fact or status or their inferences from such beliefs may be wrong. This is glaringly true during their discussions of their reasons for supporting the formulation of Article II, Section 12 of the Constitution.133

It cannot be contended that the exact moment when life begins was a settled matter for the Constitutional Commissioners. This is just one reading of their discussions.

For Commissioner Bernas, the reason for extending right to life to a fertilized ovum134 was to "prevent the Supreme Court from arriving at a x x x conclusion" similar to Roe v. Wade.135 In the process, he explained his ideas on the beginning of life:

FR. BERNAS: x x x The intent of this addition is to preclude the Supreme Court from following the United States doctrine which does not begin to weigh the life of the unborn against that of the mother until the fetus has reached a viable stage of development. In American doctrine, during the first six months of pregnancy, the only requirement for allowing abortion is that it will not be harmful to the mother. It is only after the sixth month that the life of the fetus begins to be weighed against the life of the mother.

The innovation does not say that from the first moment the sperm and the egg shake hands, human life is already present, much less does it say that at that moment, a soul is infused; nor does the innovation say that the right to life of the fertilized ovum must prevail over the life of the mother all the time. All that the innovation says is that from the moment of fertilization, the ovum should be treated as life whose worth must be weighed against the life of the woman, not necessarily saying that they are of equal worth.136

x x x. The Argument in Roe v. Wade is that the important thing is the privacy of the mother’s womb. If she wants to get rid of that fetus anytime within the first six months, it is allowed provided it can be done safely even if there is no medical reason for it. That is the only thing contemplated in this.137

However, despite Fr. Bernas’ statement on the proposed inclusion of "[t]he right to life extends to the fertilized ovum" in Section 1 of the Bill of Rights, Bishop Bacani stated that human life already existed at the time of conception:

BISHOP BACANI: The formulation reached by the Committee was "fertilized ovum," to precisely define what we meant. And it will be brought forward in another committee report that the right to life begins with conception. That is meant to explain what is understood on the committee report by the word "conception." The Gentleman was asking whether this is a human person. That is not the assertion yet of this section. But what we do assert is this, that this is human life already. If I may be allowed to read the results of the report by Fr. Robert Henley, who is also a Jesuit like Fr. Bernas, it seems they are in all camps. Let me just read this into the record. He says:

Specializing as it does in fetal physiology, Georgetown University, probably more than almost any other university, is aware of the biological facts regarding the beginnings of human life.

From the moment of conception a new biological entity exists. The entity cannot be considered as physically identical with the mother’s body. To consider the matter broadly, there is no essential difference between an ovum fertilized within the body and an ovum fertilized outside the parent’s body or rejected in an egg or emerging undeveloped, as in marsupials, in an external pouch. To destroy this entity is to destroy an existing life. Since this life entity is clearly within the development of the human species, there is obviously nothing added on a human being. Its destruction is the destruction of human life. Murder cannot be justified by a legal fiction.138

Further in the deliberations on this issue, Ms. Felicitas Aquino* propounded some concerns:

MS. AQUINO: Madam President, before the issue on the right to life is lost in the interdebate on the vexing question of the U.S. bases, I am intervening to settle some matters about the matter of the right to life.

I am very much alarmed by the absolutist claim to morality in the defense of human life, the defense that was raised by Commissioner Villegas. There is presently a raging debate on the philo-ethical considerations of the origin or the beginnings of human life that at this moment, I do not think we are in any position to preempt the debate and come up with a premature conclusion on the matter. There are still pressing questions in my mind, such as: Is the biological existence of a potentiality for life synonymous with human personality? Is viability synonymous with life? There are at least a dozen theories that attempt to address themselves to this kind of question. For example, we are aware of the Thomistic concept of hylomorphism which posits the complementarity of matter and form. The theory demands that before human life is assumed, the material body demands a certain measure of organization and form that makes it capable of receiving a soul. It operates on the premise that individuality is the basic premise and the fundamental criterion for human life and human personality and individuality requires consciousness and self-reflection.

There is another theory which states that human life begins two to three weeks after conception; that is after the possibility on the process of twinning the zygote or the recombination of the zygote is finally ruled out. These are questions that need to be addressed in our Civil Code. For example, in the context of this discussion, Articles 40 and 41 are settled that personality is determined by birth, and that for all purposes favorable to it, a conceived baby is considered born but subject to the conditions of Article 41 which says that personality is determined by live birth. I would think that Articles 40 and 41 are not only settled, but are the most practical approach to the raging debate on the matter of human life. It lays as the criteria for its conclusion the individual biological criteria, with special emphasis on the physical separation of the fetus from the mother and the requirements of viability.

I am alarmed by the way we tend to preempt this kind of discussion by invoking the claims of the righteousness of morality. These questions for me are transcendental that we cannot even attempt to address any conclusion on the matter unless we can address the question without temerity or without bigotry. Besides, the level of human knowledge on this debate is so severely restricted that to preempt the debate is, I guess, to preempt the deliberations and finally the possibility of agreement on the diverse theories on the matter.139

In response, Mr. Villegas dismissed the concerns and declared that the issue of the beginning of life is already settled.

MR. VILLEGAS: Madam President, it is precisely because this issue is transcendental that we have to make also a transcendental statement. There is no debate among medical scientists that human life begins at conception, so that is already a settled question. We are talking about life. As I said, we are not talking about human personality, neither are we saying that the human person can be decided precisely by law, nor at what time it will have the right to property and inheritance. The only right that we are protecting is the right to life at its beginning, which medical science genetics has already confirmed as beginning at conception.140 (Emphases supplied)

The Constitutional Commission deliberations show that it is not true that the issue of when life begins is already a settled matter. There are several other opinions on this issue. The Constitutional Commissioners adopted the term "conception" rather than "fertilized ovum."

New discoveries in reproductive science, particularly the possibility of cloning, provide basis for the possible significance of viable implantation in the uterus as the "beginning of life and personhood." It is at implantation when a group of cells gain the potential of progressing into a human being without further intervention.141

There are others who say that human life is defined by the presence of an active brain.142 Without it, there is no human being.143

Another theory is that human life begins when organs and systems have already been developed and functioning as a whole, consistent with the idea that death happens upon cessation of organized functions of these organs and systems.144 Zygote and embryonic stages are merely transitional phases.145

Others suggest that life begins when there is no more possibility of "twinning."146

There are also those who do not share the moral value and, therefore, the legal protection that can be given to a fertilized ovum even assuming that that would be the beginning of life.

During the Constitutional Commission deliberations, Rev. Rigos pointed out the need to "consider the sensibilities of other religious groups."147 He asked:

REV. RIGOS: x x x. But like a few people who spoke this morning, I am a bit disturbed by the second sentence: "The right to life extends to the fertilized ovum."

In discussing this proposed sentence, did the Committee consider the sensibilities of some religious groups which do not look at the fertilized ovum as having reached that stage that it can be described as human life?148

Fr. Bernas answered: "Precisely, we used that word to try to avoid the debate on whether or not this is already human life."149

Later, Rev. Rigos asked if the aim of the clause could not be achieved through legislation.150

Bishop Bacani stated the reason for his belief why the matter could not be left to legislation. He said:

x x x. We would like to have a constitutional damper already on the assault to human life at its early stages. And we realized that it can be possible to more easily change x x x easier to change legislation on abortion. Hence, we would like to be able to prevent those changes in the laws on abortion later.151

Rev. Rigos pointed out the differing opinions on the commencement of human life. He said that "[i]f we constitutionalize the beginning of human life at a stage we call fertilized ovum, then we are putting a note of the finality to the whole debate."152 To this, Bishop Bacani said that there were people from other religions who were against abortion. He said:

BISHOP BACANI: I would like to remind Reverend Rigos that when we talk about this, it is not a question of religious boundaries. In fact, let me just read what is contained in an article given by one of my researchers. It says that many scholarly Protestant and Jewish leaders are prominent in the pro-light movement – and they are referring to the anti-abortion movement. I do not want to put this simply on the denominational plain, and it is misleading to put it at that level.

x x x x

BISHOP BACANI: Because these are people who are not Catholics – who are Jewish, Protestants, even atheists – but who are against abortion.153

Rev. Rigos clarified that while Bishop Bacani was correct in describing the Protestant church’s stance against abortion "on the whole," "x x x there is a big segment in the Protestant church that wishes to make a clear distinction between what we call abortion and miscarriage."154

A paper published in the Journal of Medical Ethics written by Cameron and Williamson summarizes various religious views on life’s beginnings.155 It was asserted that "[t]he Bible, the Koran, and the Talmud do not actually say when life begins, although each has been the subject of various interpretations."156

The traditional Catholic view is that life begins at fertilization.157 However, even "[w]ithin the Catholic Church, there are differing views."158 Cameron and Williamson mentioned subscription "to theories of ‘delayed’ or ‘mediate’ animation" or the infusion of the soul at points after fertilization.159 There are also arguments that even distinguished theologians like St. Augustine and St. Thomas claim that a fetus becomes a person only between the 40th to 80th day from conception and not exactly at fertilization.160

Similar to the traditional Catholic view, Buddhism, Sikhism, and Hinduism believe that life begins at conception.161

Some Muslim scholars, according to Cameron and Williamson, believe that a fetus gains soul only in the fourth month of pregnancy or after 120 days.162 Other Muslims believe that a six-day embryo is already entitled to protection.163

The view that life begins at fertilization was supported during the debates in the Constitutional Commission by the idea that a fertilized ovum always develops into a human life.

Commissioner Ms. Aquino observed:

MS. AQUINO: I cannot. This is very instructive because as the Commissioner will note, even this Commission cannot settle the question of whether a fertilized egg has the right to life or not.

Those experts in the field of medicine and theology cannot settle this question. It is bad enough for us to pre-empt this controversial issue by constitutionalizing the ovum; it would be doubly tragic for us to provide for ambiguities which may even disturb settled jurisprudence.164

Mr. Nolledo answered:

MR. NOLLEDO: I do not think there is ambiguity because the fertilized egg, in the normal course of events, will be developed into a human being, a fetus, and as long as the normal course of events is followed. I think that the right to life exists and the Constitution should recognize that right to life. We do not presume accidents; we do not presume ambiguities. We presume that as long as it is categorized as a fertilized ovum, it will ripen into human personality.165 (Emphasis supplied)

Unfortunately, this may be wrong science.

There are studies that suggest that a fertilized egg, in the normal course of events, does not develop into a human being. In Benagiano, et al.’s paper entitled Fate of Fertilized Human Oocytes,166 it was shown that pre-clinical pregnancy wastage is at least 50%. Some estimate that the chance that pregnancy will proceed to birth may be as low as about 30%.167 Some causes of this wastage are implantation failure, chromosome or genetic abnormality, and similar causes. If normalcy is defined by this percentage, then it is pregnancy wastage that is normal and not spontaneous development until birth. Based on these, there may be no basis to the presumption that a fertilized ovum will "ripen into human personality" as Mr. Nolledo suggested.

To highlight the fallibility of the Constitutional Commissioners, one of them argued that a fertilized ovum is human because it is the only species that has 46 chromosomes. Thus:

MR. VILLEGAS: x x x. Is it human? Genetics gives an equally categorical "yes." At the moment of conception, the nuclei of the ovum and the sperm rupture. As this happens 23 chromosomes from the ovum combine with 23 chromosomes of the sperm to form a total of 46 chromosomes. A chromosome count of 46 is found only — and I repeat, only — in human cells. Therefore, the fertilized ovum is human. (Emphasis supplied)

Since these questions have been answered affirmatively, we must conclude that if the fertilized ovum is both alive and human, then, as night follows day, it must be human life. Its nature is human.168

MR. VILLEGAS: As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm that there is human life. Just to repeat: first, there is obviously life because it starts to nourish itself, it starts to grow as any living being, and it is human because at the moment of fertilization, the chromosomes that combined in the fertilized ovum are the chromosomes that are uniquely found in human beings and are not found in any other living being.169 (Emphasis supplied)

Again, this is factually wrong.

A person who has Down’s Syndrome may have 47 chromosomes.170 Most persons who have Turner’s Syndrome are one chromosome short or have 45 chromosomes.171 Persons with these conditions are no less human than persons with 46 chromosomes. Meanwhile, there are also known species which have 46 chromosomes other than humans. A Reeves’ Muntjac, for example, has 46 chromosomes.172

Then, there was the claim that the instances when there had to be a choice made between the life of the mother and the life of the zygote, fetus or child were few.

Mr. Villegas asserted:

MR. VILLEGAS: As I stated in my sponsorship speech, 99 percent of the cases indicated that taking care of the health of the mother is taking care of the child and vice versa. Because of the progress of medical science, the situations when a moral dilemma exists are very, very few. The intention behind the statement is precisely for the State to make sure that it protects the life of the pregnant mother. She goes to all sorts of trouble as we have discussed in the provisions on health. Protecting the life of the mother, giving her all the necessary social services will protect the child. So it happens only in very, very few instances which we mentioned, like ectopic pregnancies when the fertilized ovum is implanted outside of the uterus. I repeat, medical science has made the situation very, very exceptional.

x x x x

MR. VILLEGAS: Madam President, as I said in response to the question yesterday of Commissioner Suarez, 99 percent of the cases related to protection of the mother’s health, making sure that she is in the right working conditions and that she is not subjected to stress, show that there are so many things that can endanger the life of the unborn because the health of the mother is not sufficiently cared for. This is really a prolife provision which emphasizes the fact that in most instances, protecting the life of the mother is also protecting the life of the unborn.173 (Emphasis supplied)

Taking care of the mother does not always mean taking care of the zygote, fetus or child. There are instances wherein in order to protect the life of the mother, the zygote, fetus or child may have to be sacrificed.

Implantation of the fertilized egg in areas outside the uterus such as the fallopian tube or ovaries may cause organ rupture and severe loss of blood. To save the mother’s life, surgical removal174 of the fertilized ovum may be necessary.

Pre-eclampsia/eclampsia or hypertension during pregnancy175 is associated with increased perinatal mortality.176 It may also result in other complications such as seizures, hemorrhage, or liver or kidney complications that may be life-threatening.177 It may require premature delivery of the child to prevent further complications or when the life of the mother is already threatened by seizures or other complications.178

Meanwhile, pregnant persons who have cancer may have to choose between chemotherapy and risking harm to the developing embryo or fetus in her womb or not undergoing chemotherapy and risking her life.179

The Department of Health estimated that more than a thousand women died in 2009 for various causes. It is observed that most of these causes are the same complications that caused a moral dilemma between saving the mother and saving the child.180

[[reference = http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2014/april2014/204819_leonen.pdf]]

MATERIAL MORTALITY: BY MAIN CAUSE

Number, Rate/1000 Livebirths & Percent Distribution

Philippines, 2009

CAUSE

Number

Rate

Percent*

TOTAL

1,599

0.9

100.0

1. Complications related to pregnancy

occurring in the course of labor,

delivery and puerperium

655

0.4

41.0

2. Hypertension complicating

pregnancy, childbirth and puerperium

513

0.3

32.1

3. Postpartum hemorrhage

286

0.2

17.9

4. Pregnancy with abortive outcome

142

0.1

8.9

5. Hemorrhage in early pregnancy

3

0.0

0.2

*Percent share to total number of maternal deaths

In asserting that there are only a few instances of moral dilemma during pregnancy, Mr. Villegas insisted on the application of the doctrine of double effect. He stated:

MR. VILLEGAS: x x x. And we said that even in those instances, which I consider to be less than one percent of the situation, there is a moral principle which we referred to as the principle of double effect in which if one has to save the life of the mother in an operation, it is morally and legally permissible to so operate even if the child will have to be indirectly sacrificed. There is no murder involved there because one does not intend the death of the child. One is correcting a medical aberration of the mother.

x x x x

MR. VILLEGAS: It is the same principle of double effect. If you are not killing the mother directly, if the operation is to save the child and there is the indirect effect of the mother’s life being sacrificed, then I think the principle of double effect also applies.181

The principle of double effect is traceable to Thomas Aquinas in Summa Theologiae.182 It is, therefore, a Christian principle that may or may not be adopted by all of the members of the medical community. There are even some who recommend its abandonment.183

A commissioner went on to point out that unwanted children become wanted children in practically all cases. Thus:

BISHOP BACANI: Madam President, may I comment on the unwanted babies. I was reading this little book on a study of unwanted pregnancies and the interesting thing is this: In practically all cases, unwanted pregnancies became wanted babies. In fact, there were more unwanted pregnancies that became wanted babies than wanted pregnancies in the beginning which turned sour.184

Again, this claim is belied by the fact that there are reportedly, hundreds of children that are abandoned every year.185 Apparently, abandonment and neglect are the most common cases of abuse among children, based on statistics.186 Moreover, statistics shows that there is an average of 16% unwanted births, according to the 2008 National Demographic and Health Survey.187

Third, a generalized statement that life begins at fertilization of the ovum misunderstands the present science relating to the reproduction process.

Reproduction is a complex process whose features we need not tackle absent an actual controversy.

Framing the issue as an issue of right to life or the right to protection of the unborn from conception presupposes a prior conclusive scientific determination of the point when life commenced. It presupposes a conclusive finding as to the beginning of the existence of the unborn.

The court cannot declare that life begins at fertilization on the basis of a limited set of sources that may not constitute the consensus among the scientific community.

For the medical bases for the contention that life begins at fertilization some of the petitioners188 cited medical textbooks and expert opinions. However, some respondents and respondents-intervenors, also had their own scientific textbooks, journals, and health organization statements to support their opposite contentions on the difference between fertilization and conception, and the importance of viability and clear establishment of pregnancy in determining life.189

We can infer from the existence of differing opinions on this issue that reproduction involves a complex process. Each part of this process provides a viable avenue for contention on the issue of life.

The reproductive process is not always characterized by continuity and spontaneity from fertilization to birth.

Fertilization happens when a single sperm penetrates the ovum or the egg.190 The body has a mechanism that prevents "polyspermy" or more than one sperm from penetrating the egg.191 Failure of this mechanism may cause issues on the viability of the fertilized egg.192

Fertilization is possible only as long as both the sperm and the ova remain alive.193 Sperm have a lifespan of about three to five days inside a woman’s body,194 while an ovum remains capable of fertilization only about a few hours to a day after ovulation.195 This means that fertilization can happen only within that specific period of time. No fertilization within this specific period means that both cells will disintegrate and die.

A fertilized egg stays in the fallopian tube for about three to four days.196 It undergoes several cell divisions.197 It reaches the uterus usually in its 16- or 32-cell state.198 At this point, each cell resulting from the divisions is "totipotent" or may be capable of developing into an individual.199

A fertilized egg may enter the uterus to undergo further cell division, until it becomes what is known as a blastocyst, at which stage the cells lose their totipotentiality and start to differentiate.200 The fertilized egg may also remain in the fallopian tube or proceed to other organs in the abdomen to undergo the same process.

About a week from ovulation, the fertilized egg starts to implant itself into the uterus201 or fallopian tube/other abdominal organs to develop an embryo. The latter case is called ectopic pregnancy. When this happens, the embryo is not viable and must be surgically removed to prevent maternal hemorrhage.202 There are times when no surgical removal is necessary because of spontaneous abortion.203

Around the time that the blastocyst starts embedding itself into the uterus, the hormone, chorionic gonadotropin, is secreted.204 This hormone is detectable in the mother’s blood and urine.205 Pregnancy is usually determined by detecting its presence.206 Thus, pregnancy is detected only after several days from fertilization.

Studies suggest that fertilization does not always proceed to a detectable pregnancy.207 Fertilization can become undetected because the fertilized ovum becomes wastage prior to a finding of pregnancy.208

Every instance of cell division or differentiation is crucial in the reproductive process. Each step is a possible point of error. An error, especially when it involves the genes, is a possible cause for termination of the reproductive process.209

It is during the first week after fertilization that the greatest losses appear to occur.210 A review of literature on the fate of the fertilized egg in the womb estimates that about or at least 50% of fertilized eggs are wasted or "do[es] not produce a viable offspring."211

Wastage happens for different and natural reasons, among which are delayed or erroneous implantation and chromosomal or genetic abnormalities.212 Apparently, a delayed implantation of a fertilized egg into the uterus, usually more than 12 days from fertilization, may reduce or eliminate the chance that pregnancy will proceed.213 It is suggested that delayed implantation may be caused by delayed production or relatively low concentration of the chorionic gonadotropin hormone which leads to the degeneration of the corpus luteum.214 The corpus luteum produces hormones that are essential to the maintenance of pregnancy especially during the first months.215 These hormones are responsible for the thickening of the uterine muscles and the inhibition of uterine motility that will prevent the expulsion of the fetus from the womb.216

The huge percentage of losses of pre-implantation zygote provides basis for the argument that viability is a factor to consider in determining the commencement of life. These losses are not generally regarded as deaths of loved ones, perhaps because it occurs naturally and without the knowledge of the woman.

Hence, some217 put greater emphasis on the importance of implantation on this issue than fertilization.

This value is shared by others including the American College of Obstetricians and Gynecologists, Code of Federal Regulations, and British Medical Association, among others.218

The reproductive process may also show that a fertilized egg is different from what it may become after individuation or cell specialization.

One argument against the belief that human existence begins at fertilization emphasizes the totipotency of the pre-implantation zygote.

David DeGrazia, for example, argues that while fertilization is necessary for a person’s existence, it is not sufficient to consider it as a person.219 At most, the zygote is only a precursor of a person.220 It was stressed that several days after fertilization, a zygote is not yet uniquely differentiated.221 Hence, it can still divide into multiple human beings or fuse with other zygotes to produce a chimera.222 This mere possibility, according to DeGrazia belies the position that a zygote is identical with the individual or individuals that result from it.223 DeGrazia states:

Consider the zygote my parents produced in 1961, leading to my birth in 1962. I am not an identical twin. But that zygote could have split spontaneously, resulting in identical twins. If it had, presumably I would not have existed, because it is implausible to identify me with either of the twins in that counterfactual scenario. If that is right, then the existence of the zygote my parents produced was not sufficient for my existence, from which it follows that I am not numerically identical to that zygote. The very possibility of twinning belies the claim that we originated at conception.224

Further, as argued by DeGrazia, the mere fact that the cells are still subject to differentiation or individuation "belies the claim that we originated at conception."225 Imputing moral or human status to an undifferentiated zygote means that a human (in the form of a zygote) dies every time a zygote multiplies to form two individuals.226 DeGrazia doubts that many would accept the imagined implications of giving full moral status to a fertilized ovum: 1) Multiple pregnancy is a cause for mourning because essentially, a life is given up to produce at least two others; 2) There should be reason to support investments in research for the prevention of multiple pregnancies.227

DeGrazia characterizes a zygote as a single cell or "colony of cells"228 whose functions are not yet wholly integrated, unlike in a human being.229

It was also emphasized that the potential to undergo a process that would eventually lead to being a full human being is not equivalent to being a full human being.230 Advancements in technology point to the possibility of cloning from cells other than the sperm and the egg. Yet, this does not elevate the status of each cell as in itself a full human being.231 Thus:

Clearly, the single-cell zygote has the potential to develop in such a way that eventually produces one of us. (Note: I do not say that the single-cell zygote has the potential to become one of us – a statement that would imply numerical identity.) But the importance of this potential is dubious. Now that we know that mammals can be cloned from somatic cells – bodily cells other than sperm, eggs, and their stem-cell precursors – we know that, in principle, each of millions of cells in your body has the potential to develop into a full human organism. Surely this confers no particular moral status on your many individual cells; nor does it suggest that each cell is one of us. Once again, a full complement of DNA is not enough to make one of us.232

The argument that the use of ordinary body cells does not naturally lead to birth, according to DeGrazia, finds little weight when statistics of pre-implantation wastage is considered.233 Statistics does not support the view that fertilization naturally leads to birth.234 A fertilized egg still has to undergo several processes and meet certain conditions before it results to implantation or birth.

Further, there are policy dilemmas resulting from the court’s premature determination of life’s beginnings.

A corollary of the view that life begins at fertilization is that anything that kills or destroys the fertilized egg is "abortive."

The beginning of life is a question which can be most competently addressed by scientists or ethicists. A Supreme Court declaration of a scientific truth amidst lack of consensus among members of the proper community is dangerous in many contexts. One example is the occurrence of ectopic pregnancy.

Ectopic pregnancy occurs when the fertilized egg implants into parts or organs other than the uterus.235 Ectopic pregnancy usually occurs in the fallopian tube.236 Women who experience ectopic pregnancy must cause the removal of the developing embryo or she risks internal bleeding and death.237

Ectopic pregnancy can be treated using drugs or surgery depending on the size of the embryo and the status of the fallopian tube.238 Smaller pregnancy and the inexistence of tubal rupture allow treatment through medications.239 Medications will stop pregnancy growth without the need for removal of the fallopian tube.240

However, there are instances that necessitate surgical removal of the pregnancy, including the fallopian tube, to prevent harm to the woman.241

In any case, creating an all encompassing definition of life’s beginnings to "equalize" the protection between the "unborn" and the mother creates a moral dilemma among the people whether to save the mother from the risk of life-threatening complications or whether to "save" a fertilized ovum that has no chance of surviving. This is most especially applicable among those involved such as the mother and the health care professionals.

Following a declaration in the ponencia that life begins at fertilization, the removal of a fertilized egg in an ectopic pregnancy must necessarily constitute taking of life. All persons involved in such removal must necessarily kill a fertilized ovum. A mother or a health care professional who chooses to remove the embryo to save the mother risks being charged or stigmatized for that conduct.

Similarly, such all encompassing declaration is dangerous especially when applied to fertilizations resulting from sexual assault or rape.

There are conflicting versions of the mechanisms of action of emergency conception. There are publications, for example, that find that a single dose of the most widely used emergency contraceptive, levonorgestrel (LNG) taken within five days of unprotected sex would protect a female from unwanted pregnancy by delaying or inhibiting ovulation.242 Petitioners, on the other hand, believe that emergency contraceptives also prevent the implantation of a fertilized ovum into the uterus. They also cite distinguished scientific journals such as the Annals of Pharmacotherapy.243

This lack of public consensus coupled with an official declaration from this court that life begins at fertilization could immobilize a rape victim from immediately obtaining the necessary emergency medication should she wish to prevent the unwanted pregnancy while there is still time. It may create ethical pressure on the victim to assume the repercussions of acts that are not her fault.

Insisting on a determination of when life begins also unnecessarily burdens the ethical dilemma for assisted reproductive technologies.

Assisted reproductive technologies (ART) refer to "all fertility treatments in which both eggs and sperm are handled. In general, ART procedures involve surgically removing eggs from a woman’s ovaries, combining them with sperm in the laboratory, and returning them to the woman’s body or donating them to another woman. They do NOT include treatments in which only sperm are handled (i.e. intrauterine—or artificial—insemination) or procedures in which a woman takes medicine only to stimulate egg production without the intention of having eggs retrieved."244 Others include among the ART procedures intrauterine insemination, in vitro fertilization, sperm donation, egg donation, and surrogacy or gestational carrier.245 I focus on in vitro fertilization.

In in vitro fertilization, the ovaries are stimulated to produce multiple eggs.246 The produced eggs are retrieved from the woman’s body for insemination.247 A sufficient number of healthy embryos are transferred to the woman’s womb after fertilization.248 Multiple embryos are sometimes transferred to the womb to increase the chances of pregnancy, in which case, multiple births are likely to happen.249 Unused healthy embryos may be frozen for later use or for donation.250 Disposal of embryos is also an option for some.251

The ethical dilemma arises with respect to the unused embryos. A conflict of interest is created between the fate of the mother and the fate of the embryos. If life begins at fertilization, disposal of surplus embryos means disposal of several human lives. At the same time, a mother or anyone else cannot be forced to conceive a child or donate an embryo to another.

I believe that when presented with a like but actual case, it should be the parents who should make the choice whether to use the surplus embryos or to dispose it if allowed by law.

When exactly life begins is not in issue in this case.

We should avoid this issue because this court lacks the competence to determine scientific, ethical or philosophical truths. Just as it should not easily accept purported truths propounded by parties to support their causes for or against reproductive health, this court should also not so easily dismiss views as "devoid of any legal or scientific mooring"252 or having been "conceptualized only for convenience by those who had only population control in mind."253

The ponencia emphasizes this court’s statement in Continental Steel v. Hon. Accredited Voluntary Arbiter Allan S. Montano that "a child inside the womb already has life".254 But Continental Steel involves the issue of whether respondent in that case was entitled to death and accident insurance claim after his child had been prematurely delivered at 38 weeks and immediately died.

At 38 weeks, viability is less an issue compared to a fertilized egg. A fertilized egg will still have to successfully undergo several processes, cell divisions, implantations, and differentiations for a chance at even developing recognizable fetal tissues. This court said:

Even a child inside the womb already has life. No less than the Constitution recognizes the life of the unborn from conception, that the State must protect equally with the life of the mother. If the unborn already has life, then the cessation thereof even prior to the child being delivered, qualifies as death.255 (Emphasis supplied)

This court was not making a declaration that a fertilized egg already constitutes a child inside a womb and a declaration as to when life begins. Applied in the context of that case, this court was merely saying that the 38-week, prematurely born child was already a child for purposes of the award of the death and accident insurance claim under the Collective Bargaining Agreement.

IV

Section 9 and Abortifacient Effects

The petitions, having alleged no actual controversy, also furnish no justification to strike down any portion of Section 9 of Republic Act No. 10354 as unconstitutional. This provides:

SEC. 9. The Philippine National Drug Formulary System and Family Planning Supplies. – The National Drug Formulary shall include hormonal contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family planning products and supplies. The Philippine National Drug Formulary System (PNDFS) shall be observed in selecting drugs including family planning supplies that will be included or removed from the Essential Drugs List (EDL) in accordance with existing practice and in consultation with reputable medical associations in the Philippines. For the purpose of this Act, any product or supply included or to be included in the EDL must have a certification from the FDA that said product and supply is made available on the condition that it is not to be used as an abortifacient.

These products and supplies shall also be included in the regular purchase of essential medicines and supplies of all national hospitals: Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency contraceptive pills, postcoital pills, abortifacients that will be used for such purpose and their other forms or equivalent. (Emphasis supplied)

Petitioners argue that the law violates the right to health because allowing general access to contraceptives by including them in the national drug formulary and in the supplies of national hospitals means that the citizens are being exposed to several health risks such as different types of cancer, thromboembolytic events, myocardial infarction, and stroke, among others.

Petitioners point to no specific drug or contraceptive. They produce medical journals which tend to support their justification and ask this court to accept them as gospel truth. On the other hand, respondents also show journals that support their claims.

The petitioners misread this provision.

The law specifically grants the Food and Drug Administration (FDA) with the competence to determine the scientific validity of the allegations of the petitioners. The FDA is mandated to examine each and every drug, contraceptive or technology vis-a-vis the claims made for or against their inclusion.

I agree with the ponencia in withholding any blanket pronouncement of any contraceptive absent the exercise of the FDA of its functions under this provision. The FDA is mandated to ensure the safety and quality of drugs released to the public.256

Generalizations and exaggerated claims are symptomatic of anguished advocacies. The angst that accompany desperate attempts to convince often push well-meaning advocates to magnify fears that go beyond the reasonable.

The argument that drugs that may be abused should not be made available to the public is perhaps more dangerous to public health than a total ban on contraceptives. It is a proposed policy that misunderstands the effect of any kind of drug on the human body. It is, thus, arbitrary and without reason.

Drugs aim to affect our bodily processes to achieve a desired outcome.257 They work by targeting and interacting with cell receptors, enzymes and/or other substances in our body so that the desired change in our chemical processes and/or physiological functions can be effected.258

However, our bodies are complex systems. Targeted receptors and/or enzymes may exist in non-target areas.259 They may have structural similarities with non-target receptors and/or enzymes. Thus, while drugs in general are designed for a specific purpose, the complexities of our systems allow for a relatively generalized effect. There are unintended effects that are often called the "side effects."260 This is a property that is not exclusive to contraceptive drugs. It is a property of drugs in general.

Aspirin, for example, is advisable for thromboembolic disorders, stroke or for the prevention of cerebrovascular events.261 Abusing the use of aspirin, however, may cause gastrointestinal bleeding.262

Aldomet is a drug usually taken to relieve hypertension.263 When abused, its reported side effects include maladjustments affecting the nervous system, blood, and the liver. Among the reported reactions are sedation, headache, psychic disturbances, hepatitis, and hemolytic anemia.264

Even drinking too much water may cause hyponatremia, which is the low sodium concentration in the plasma.265

Side effects are expected with every drug from the weakest to the most potent. Their prescriptions are trade-offs between all the benefits and risks associated with it. Every drug should be taken to address the ailment but in a way that minimizes the risk. This is usually why there are proper dosages and time periods to take medicines. This is also why some medicines are not dispensed without the proper prescription.

Several drugs are not prescribed when there is pregnancy because of the fetal risks associated with them. Among these are Xenical (orlistat) used as a nutrition pill, Advil and any kind of Ibuprofen (during the third trimester) used to manage pain, Testim (testosteron) given for endocrine disorders, Flagyl (metronidazole) to manage infection, Crestor (rosuvastatin) to manage cholesterol, Vistaril (hydroxyzine) usually given for allergic reactions, and many more.266

The use of these drugs is appropriately limited so that they cannot have the effect or be used as abortifacients. This does not mean, however, that they are, per se, abortifacients.

The policy embedded in the law is that the proper use of contraceptives will prevent unwanted pregnancy and, therefore, also prevent complications related to pregnancy and delivery.267 The risks of its usage, when proper and guided, can be relatively low compared to its benefits.268 More specifically, the FDA is most competent in examining the scientific and medical basis of the beneficial claims and risks of each and every contraceptive. Drugs may or may not be included in the Essential Drugs List, based on the FDA’s findings. It is not for this court to jump to conclusions on the basis of the ad hoc presentations of medical journals from the parties. This finding of fact should be left to the proper agency. There is an indefinite scope of possible scenarios precisely because there was no actual case or controversy brought before this court. If applying the law to even one of these possibilities may render it constitutional, then we should not declare it as unconstitutional. The doctrine on the presumption of constitutionality must prevail when there is no factual basis to invalidate the law.269

Only safe and effective medicines are included in the drug formulary.

The inclusion of contraceptives in the national drug formulary is not new. The Philippine Drug Formulary: Essential Medicines List, Volume 7, of 2008 already listed it under "Hormones and Hormone Antagonists."270

Contraceptives are included, following five pillars designed to make available affordable, safe, and effective drugs to the public. These pillars are: (1) "the assurance of the safety, efficacy and usefulness of pharmaceutical products through quality control;" (2) "the promotion of the rational use of drugs by both the health professionals and the general public;" (3) "the development of self-reliance in the local pharmaceutical industry;" (4) "[t]he tailored or targeted procurement of drugs by government with the objective of making available to its own clientele, particularly the lower-income sectors of the society, the best drugs at the lowest possible cost;" and (5) "people empowerment."271

One of the steps for inclusion in the drug formulary is to ensure that the drug is of "acceptable safety, proven efficacy, quality, and purity".272 Ensuring that health products are safe, efficient, pure, and of quality is a function of the Food and Drug Administration.273 Moreover, Republic Act No. 4729 requires that contraceptive drugs and devices cannot be lawfully dispensed without proper medical prescription.

V

Conscientious Objector

The ponencia proposes to declare the provision relating to the mandatory referral of a conscientious objector as unconstitutional because it violates the right to religion. I also disagree.

The sections involved provides:

SEC. 7. Access to Family Planning – All accredited public health facilities shall provide a full range of modern family planning methods, which shall also include medical consultations, 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 patients with the option to grant free care and services to indigents, except in the case of non-maternity specialty hospitals and hospitals owned and operated by a religious group but they have the option to provide such full range of modern family planning methods: Provided further, That these hospitals shall immediately refer the person seeking such care and services to another health facility which is conveniently accessible: Provided finally, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344.

SEC. 23. Prohibited Acts. – The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

x x x x

(3) Refuse to extend quality health care services and information on account of the person’s marital status, gender, age, religious convictions, personal circumstances, or nature of work: Provided, That the conscientious objection of a health care service provider based on his/her ethical or religious beliefs shall be respected; however, the conscientious objector shall immediately refer the person seeking such care and services to another health care service provider within the same facility or one which is conveniently accessible: Provided, further, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344, which penalizes the refusal of hospitals and medical clinics to administer appropriate initial medical treatment and support in emergency and serious cases[.] (Emphasis supplied)

The patient’s rights

Doctors routinely take an oath implying that the primordial consideration in their services is the welfare of their patients. The form of the Physician’s Oath adopted by the World Medical Association is what is now known as the Declaration of Geneva, to wit:

At the time of being admitted as a member of the medical profession:

I solemnly pledge to consecrate my life to the service of humanity;

I will give to my teachers the respect and gratitude that is their due;

I will practice my profession with conscience and dignity;

The health of my patient will be my first consideration;

I will respect the secrets that are confided in me, even after the patient has died;

I will maintain by all means in my power, the honor and the noble traditions of the medical profession;

My colleagues will be my sisters and brothers;

I will not permit considerations of age, disease or disability, creed, ethnic origin, gender, nationality, political affiliation, race, sexual orientation, social standing or any other factor to intervene between my duty and my patient;

I will maintain the utmost respect for human life;

I will not use my medical knowledge to violate human rights and civil liberties, even under threat;

I make these promises solemnly, freely and upon my honor.274 (Emphasis supplied)

Many of those who specialize in the ethics of the health profession emphasize the possibility of a health service provider inordinately abusing conscientious objection over the welfare of the patient. Thus,

Physicians’ rights to refuse to participate in medical procedures that offend their conscience may be incompatible with patients’ rights to receive lawful, medically indicated treatment. Historically, the goal of medicine has been to provide care to the sick. The World Medical Association’s modern variant of the Hippocratic Oath, the Declaration of Geneva, inspires the graduating physician to pledge that, "The health of my patient will be my first consideration". For many who enter medicine, the commitment to assist their fellow human beings and pursue a path of personal salvation through this professional calling is religiously inspired. A conflict of interest can arise if the physician’s religious or other conscientious convictions are in tension with medically indicated procedures. The obvious case is therapeutic abortion, but analogous cases include contraceptive sterilization and withdrawal of life support from otherwise viable patients. Physicians who give priority to their own moral and spiritual convictions over their patients’ need and desire for medically indicated care face a conflict that needs resolution.

The ethical conflict can be avoided through mutual accommodation; physicians have the right to decide whom to treat, and patients have the right to decide from whom they will receive care. Physicians do not have the same ethical duties to nonpatients as to patients except in emergency circumstances. In all other circumstances, physicians are at liberty to choose those for whom they will accept the responsibility of care. If there are services they will not perform, physicians should make the fact known to patients for whom they have accepted responsibility. Doing so not only saves patients the distress of seeking those services and being turned down, it also saves physicians from the dilemma of unfulfilled responsibilities to those whose care they have agreed to undertake. This arrangement is well understood in medicine; physicians who notify prospective patients that they are, for instance, pediatricians, will not be asked to treat those requiring geriatric care, and geriatricians who do not have to accept patients seeking pediatric services. More explicit disclosure is required, of course, when prospective patients may reasonably expect that care will be available from the specialists they approach. Obstetrician-gynecologies who will not participate in abortion procedures must make that fact clear before forming patient-physician relationships."275

If the first and primordial consideration is the health of her or his patient, then the beliefs of the service provider even though founded on faith must accommodate the patient’s right to information. As stated in the Code of Ethics of the Philippine Medical Association:

ARTICLE II

DUTIES OF PHYSICIANS TO THEIR PATIENTS

Section 5. A physician should exercise good faith and honesty in expressing opinion/s as to the diagnosis, prognosis, and treatment of a case under his/her care. A physician shall respect the right of the patient to refuse medical treatment. Timely notice of the worsening of the disease should be given to the patient and/or family. A physician shall not conceal nor exaggerate the patient’s conditions except when it is to the latter’s best interest. A physician shall obtain from the patient a voluntary informed consent. In case of unconsciousness or in a state of mental deficiency the informed consent may be given by a spouse or immediate relatives and in the absence of both, by the party authorized by an advanced directive of the patient. Informed consent in the case of minor should be given by the parents or guardian, members of the immediate family that are of legal age. (Emphasis supplied)

If a health care service provider’s religious belief does not allow a certain method of family planning, then that provider may possibly withhold such information from the patient. In doing so, the patient is unable to give voluntary informed consent to all possible procedures that are necessary for her or his care.

The law, in sections 17 and 23 allow accommodation for full care of the patient by requiring referral. The patient that seeks health care service from a provider should be able to put his or her trust on the provider that he or she would be referred to the best possible option. There is nothing in the law which prevents the referring health care provider from making known the basis of his or her conscientious objection to an available procedure which is otherwise scientifically and medically safe and effective.

Between the doctor or health care provider on the one hand and the patient on the other, it is the patient’s welfare and beliefs which should be primordial. It is the patient that needs the care, and the doctor or health care provider should provide that care in a professional manner.

While providers have a right to their moral beliefs, the right does not allow health-care providers to violate their professional and legal obligations to the patient. Policies on health-care provider refusals should be carefully crafted to maximize the rights of individuals to their beliefs without extending this "protection" so far that it prevents patients from getting the medical care or information they need.276

The holding of the majority which declares the mandatory referral systems in Section 17 and Section 23, paragraph (a) (3) as unconstitutional on the basis of the right of religion of the doctor or health care provider implicitly imposes a religious belief on the patient.

It is in this context that many experts say that:

Religious initiatives to propose, legislate, and enforce laws that protect denial of care or assistance to patients, (almost invariably women in need), and bar their right of access to lawful health services, are abuses of conscientious objection clauses that aggravate public divisiveness and bring unjustified criticism toward more mainstream religious beliefs. Physicians who abuse the right to conscientious objection and fail to refer patients to non-objecting colleagues are not fulfilling their profession’s covenant with society.277

We must not assume that situations involving the duty to refer cover information or services that may be objectionable only to a specific religious group. Neither can we assume, for example, that the situation would always involve an extreme case such that a patient would seek an abortion.

There are, in fact, many reasons why a patient would seek information or services from a health professional. To be sure, when we speak of health care services and information under Section 23(3) of the law, we refer to a "full range of methods, facilities, services and supplies that contribute to reproductive health and well-being."278

Considering that the law is yet to be implemented, there are no facts from which this court can base its ruling on the provision. We cannot and must not speculate.

Conscientious objection and religious objection

There is a difference between objections based on one’s conscience and those based on one’s religion. Conscience appears to be the broader category. Objections based on conscience can be unique to the individual’s determination of what is right or wrong based on ethics or religion.

Objections based on religion, on the other hand, imply a set of beliefs that are canonical to an institution or a movement considered as a religion. Others share religious belief. Conscientious objection may also include those whose bases are unique only to the person claiming the exception. One’s conscience may be shaped by cultural factors other than religion. It is clear that a conscientious objector provision whose coverage is too broad will allow too many to raise exception and effectively undermine the purpose sought by the law.279

The duty to refer is also found in Section 7 of the law:

SEC. 7. Access to Family Planning. – All accredited public health facilities shall provide a full range of modern family planning methods, which shall also include medical consultations, supplies and necessary and reasonable procedures for poor and marginal couples having infertility issues who desire to have children: Provided, That family planning services shall likewise be extended by private health facilities to paying patients with the option to grant free care and services to indigents, except in the case of non-maternity specialty hospitals and hospitals owned and operated by a religious group, but they have the option to provide such full range of modern family planning methods: Provided, further, That these hospitals shall immediately refer the person seeking such care and services to another health facility which is conveniently accessible: Provided, finally, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344.

x x x x (Emphasis supplied)

The same considerations for individual health practitioners should apply to private health institutions. Private health institutions are duty-bound to prioritize the patient’s welfare and health needs.

Requirements of a challenge based on religion

The constitutional provision invoked by petitioners provides:

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.280

The provision contains two parts. The first part is the non-establishment clause.281 This contains a proscription against the direct or indirect state sponsorship of a religion and is closely related to another fundamental tenet in the Constitution, which provides:

Section 6. The separation of Church and State shall be inviolable.282

The second part is the free exercise of religion clause.283 The protection to "religious profession and worship" is absolute when it comes to one’s belief or opinion. The balance between compelling state interests and the religious interest must, however, be struck when the "profession and worship" are expressed in conduct which affect other individuals, the community or the state. Religious conduct or omissions on the basis of religious faiths are not absolutely protected.

In Iglesia Ni Cristo v. Court of Appeals,284 this court reiterated the rule that:

x x x the exercise of religious freedom can be regulated by the State when it will bring about the clear and present danger of some substantive evil which the State is duty-bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal mind but history counsels the Court against its blind adoption as religion is and continues to be a volatile area of concern in our country today. Across the sea and in our shore, the bloodiest and bitterest wars fought by men were caused by irreconcilable religious differences.285

Then in Estrada v. Escritor,286 this court clarified:

Although our constitutional history and interpretation mandate benevolent neutrality, benevolent neutrality does not mean that the Court ought to grant exemptions every time a free exercise claim comes before it. But it does mean that the Court will not look with hostility or act indifferently towards religious beliefs and practices and that it will strive to accommodate them when it can within flexible constitutional limits; it does mean that the Court will not simply dismiss a claim under the Free Exercise Clause because the conduct in question offends a law or the orthodox view for this precisely is the protection afforded by the religion clauses of the Constitution, i.e., that in the absence of legislation granting exemption from a law of general applicability, the Court can carve out an exception when the religion clauses justify it. While the Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of judgment in determining the degree of burden on religious practice or importance of the state interest or the sufficiency of the means adopted by the state to pursue its interest, the Court can set a doctrine on the ideal towards which religious clause jurisprudence should be directed. We here lay down that doctrine that in Philippine jurisdiction, we adopt that benevolent neutrality approach not only because our constitutional history and interpretation indubitably show that benevolent neutrality is the launching pad from which the Court should take off in interpreting religion clause cases. The ideal towards which this approach is directed is the protection of religious liberty ‘not only for a minority, however small – not only for a majority, however large – but for each of us’ to the greatest extent possible within flexible constitutional limits.287

The same case also cited the "Lemon test" which states the rules in determining the constitutionality of laws challenged for violating the non-establishment of religion clause:

First, the statute must have a secular legislative purpose; second, its primary or principal effect must be one that neither advances nor inhibits religion; x x x finally, the statute must not foster ‘an excessive entanglement with religion.288

However, the application of these standards first requires the existence of an actual case involving (1) a specific conduct (2) believed to be related to profession or worship (3) in a specific religion.

The basis for invoking the right to religion is not always clear. For instance, there is no single definition of religion.

The common dictionary meaning is that it is "an organized system of beliefs, ceremonies, and rules used to worship a god or a group of gods."289 Another dictionary meaning is that "religion may be defined broadly as the human quest for, experience of, and response to the holy and sacred."290 An author in a journal on ethics asserts that "religion is the effective desire to be in right relations to the power manifesting itself in the universe."291

In Aglipay v. Ruiz,292 this court adopted a bias toward theistic beliefs when it defined religion "as a profession of faith to an active power that binds and elevates man to his Creator x x x."293 But there are beliefs commonly understood to be religious which are non-theistic. Courts have grappled with the definition of a religion.294

But these could not be issues in this case because there are no actual facts upon which we could base our adjudication.

None of the petitions allege the conduct claimed to be part of "profession or worship". None of the petitions point to how this specific conduct relates to a belief or teaching of a religion. None of the petitions show how fundamental to the specific religious faith such conduct is.

In other words, the petitions do not show a specific instance when conscientious objection was availed of as a result of the exercise of a religion. In this case, we are asked to evaluate whether the provision that accommodates conscientious objectors would, in the future, with unspecified facts, violate the constitutional provision on religious exercise.

Thus, it is also not clear in the ponencia whether the provisions on referral by conscientious objectors are declared unconstitutional for all religions or only for specific ones. This is the natural result for speculative cases. This is dangerous constitutional precedent. If the declaration is for all religions, then this might just result in a violation of the non-establishment clause. A dominant majoritarian religion is now aided in imposing its beliefs not only on patients but also on all those who have different faiths.

Conduct which purport to be religious practice and its relationship to the fundamental tenets of that religion is a question of fact which cannot be part of our judicial notice. Otherwise, we implicitly establish a religion or manifest a bias towards one in violation of the clear and absolute separation between church and state.

Contraceptives and Religion

Even the proscription on the use of contraceptives may not clearly be a religious tenet. We do not have the competence to assume that it is so.

With respect to the Catholic faith, the comment-in-intervention of De Venecia, et al. included a history on the Catholic Church’s changing and inconsistent position regarding contraceptives, and the notion that every conjugal act must be for a procreative purpose.

The intervenors asserted that the notion denouncing sex without procreative intent cannot be found in the old or new testament. During the church’s existence in the first few hundred years, the issue of the church was not on the purpose of the conjugal act but on the specific methods for contraception as some were associated with witchcraft.295 The idea that requires the procreative purpose for the sexual act was not originally Christian but borrowed from pagan Greek Stoics during the early second century:

As James Brundage has pointed out, the immediate source of influence on Christian writers was the pagan Stoics, whose high ideals for morality challenged the Christians to copy them or even do better. Natural law or the law of nature was the basis for these ideals. The famous Stoic jurist Ulpian supplied to Christian writers their understanding of natural law. For Ulpian, natural law consisted in the laws of nature that animals and humans had in common. Among the domestic animals with which Ulpian was familiar, the female accepted the male only when she was in heat. So it was the law of nature for humans and animals alike that sexual intercourse should only take place for breeding.296 (Emphasis supplied)

The Catholic Church through Pope Paul VI later secretly created a Pontifical Commission for the Study of Population, Family and Births to recommend whether modern contraceptive methods could be permitted.297 The commission’s final report concluded, by two-third votes, that "no natural law proscribed non-reproductive sex and no doctrinal, scientific, medical, social or other reason existed for the church to continue prohibiting the use of modern birth control."298

Despite these findings, two ultraconservative members issued a minority report arguing that "the Vatican’s authority would be irreparably undermined if it abandoned a position it had adopted hundreds of years earlier."299

Consequently, Pope Paul VI issued Humanae Vitae reiterating Pope Pius XI’s 1930 encyclical Casti Connubii on natural law’s proscription against sex without procreative intent.300 The commission’s creation and its reports were leaked to the public, resulting in mass protests and defiance within the church.301

Intervenors quoted at length a detailed account of these events surrounding the Casti Connubii and Humanae Vitae, thus:

Nervous prelates in Rome felt that the pill was just an excuse to jettison the Vatican's position on birth control, which was resented and under siege. The euphoria over new freedoms was part of the social giddiness that characterized the 1960s, in the church as in the secular world. It was a time of the sexual revolution, feminism, and new attitudes toward authority. In this atmosphere, the papal pronouncements about natural law were brought under closer scrutiny by natural reason, and they grew flimsier with every look. There was great fear in the Curia of the Vatican that this mood would invade the Council Pope John was assembling (as, in fact, it did). The whole matter of birth control was considered especially endangered, and it would be fought over strenuously in two Roman arenas, one open and one Secret. The former battle, carried on in the sessions of the Vatican Council, reached a kind of stalemate in the conciliar decree on the church in the modern world, Gaudiumet et Spes. The other battle, waged in secret by the Pope's own special commission, led to that commission's stunning defeat by the Pope's own encyclical Humanae Vitae.302 (Emphasis supplied)

Humanae Vitae

That Pontifical Commission met five times, at first in the fall of 1963 - six men convening at Louvain. The second meeting (like all subsequent ones) was in Rome, in the spring of 1964, attended by the thirteen men. The number was increased to fifteen for a meeting that summer. Up to this point, no one had presumed to recommend altering the church's teaching on contraception. Things changed at the fourth session, held in the spring of 1965, when the size of the commission jumped up to fifty- eight, with five women among the thirty-four lay members. An expert called in for consultation was John T. Noonan, from Notre Dame in Indiana, whose study of the church's changing positions on usury had won scholarly acclaim. He was working on a similar study of changes in the prohibition of contraception - a book that would appear just as the commission was disbanded. Noonan opened the members' eyes to the way that noninfallible papal teaching can develop.

Another eye opener was the result of a questionnaire brought to Rome by the lay couple Pat and Patty Crowley. They had long been active in the international Christian Family Movement, and they had surveyed their members - devout Catholics all - on their experience of the rhythm method of contraception. They found it far from natural- Since a woman's period fluctuates with her health, anxieties, age, and other influences, establishing the actual infertile period in any cycle required daily charting of her temperature and close comparative reading of calendars - and even then the results were not Sure. The most conscientious catholics, who followed this nervous procedure with precision, found that it was not certain - which left them in great fear until the next menstruation (which might not occur). And in this concentration on the wife's physical conditions, her psychological patterns - of fondness, need, crises, travel - had to be ignored or repressed. The comments of the couples surveyed made riveting reading in the commission. A husband, a scholar, wrote:

Rhythm destroys the meaning of sex act; it turns it from a spontaneous expression of spiritual and physical love into a mere bodily sexual relief; it makes me obsessed with sex throughout the month; it seriously endangers my chastity; it has a noticeable effect upon my disposition toward my wife and children; it makes necessary my complete avoidance toward my wife for three weeks at a time. I have watched a magnificent spiritual and physical union dissipate and, due to rhythm, turn into a tense and mutually damaging relationship. Rhythm seems to be immoral and deeply unnatural. It seems to be diabolical.

His wife gave her side of the story:

I find myself sullen and resentful of my husband when the time of sexual relations finally arrives. I resent his necessarily guarded affection during the month and I find I cannot respond suddenly. I find, also, that my subconscious and unguarded thoughts are inevitably sexual and time consuming. All this in spite of a great intellectual and emotional companionship and a generally beautiful marriage and home life.

The commission was hearing that rhythm made people obsessed with sex and its mechanics while minority members at the Council were arguing that rhythm allows people to escape the merely animal urges and enjoy the serenity of sexuality transcended. The commission was also hearing from doctors that nature, of course, provides women with their greatest sexual desire at just the fertile time that rhythm marked off bounds.

The combined impact of Noonan's history and the Crowley's empirical findings made the commission members - good Catholics all, chosen for their loyalty to the church - look honestly at the "natural law" arguments against contraception and see, with a shock, what flimsy reasoning they had accepted. Sex is for procreation, yes - but all the time, at each and every act? Eating is for subsistence. But any food or drink beyond that necessary for sheer subsistence is not considered mortally sinful. In fact, to reduce to that animal compulsion would deny symbolic and spiritual meanings in shared meals - the birthday party, the champagne victory dinner, the wine at Cana, the Eucharist itself. Integrity of the act? Is it sinful to be nourished intravenously when that is called for? Does that violate the integrity of the eating act? The more assembled members looked at the inherited "wisdom" of the church, the more they saw the questionable roots from which it grew - the fear and hatred of sex, the feeling that pleasure in it is a biological bribe to guarantee the race's perpetuation, that any use of pleasure beyond that purpose is shameful. This was not a view derived from scripture or from Christ, but from Seneca and Augustine.

The commission members, even trained theologians and spiritual counselors who had spent years expounding the church teachings, felt they were looking at reality for the first time. A cultivated submission to the papacy had been, for them, a structure of deceit, keeping them from honesty with themselves, letting them live within a lie. To their shared surprise they found they were not only willing to entertain the idea of the church's changing, but felt that it had to change on this matter, that the truth, once seen, could no longer be denied. When the nineteen theologians on the commission, convened for a separate vote, were asked whether church teaching could change on contraception, twelve said yes, seven no (including John Ford, who had joined the commission at this meeting).

This set off alarm bells in the Vatican. For the next meeting, the last and the longest, from April to June of 1965, the members of the commission were demoted to "advisers" (periti) and the commission itself was constituted of sixteen bishops brought in to issue the final report. They would listen to those who had done the actual conferring, and theirs would be the final verdict. Debate before them would be presided over by Cardinal Ottaviani of the Holy Office. This bringing in the big guns would have cowed the members in their first sessions. But things had gone too far for such intimidation now. The Crowleys brought another survey with them to the showdown, this one of 3,000 Catholics - including 290 devout subscribers to the magazine St. Anthony's Messenger - of whom 63 percent said that rhythm had harmed their marriage and 65 percent said that it did not actually prevent conception, even when the right procedures were followed exactly (even neurotically). Dr. Albert Gorres spoke of the self- censorship Catholics had exercised over themselves - something the members recognized in their lives when it was pointed out. The Jesuit priest Josef Fuchs, who had taught Casti Connubii standards for twenty years, said he was withdrawing his moral textbook and resigning his teaching post at the Gregorian University in Rome now that he could no longer uphold what he was asked to profess. The vote of the theologians who were presenting their findings to the bishops was now fifteen to four against the claim that conception is intrinsically evil. The vote of the larger group was thirty to five.

Here was a perfect laboratory test of the idea that contraception is against nature, as that can be perceived by natural reason alone. These people were all educated, even expert. They were Catholics in good standing (they had been chosen on those grounds). They had been conditioned all their lives to accept the church’s teaching - in fact they had accepted it in the past. They of all people would entertain the official case with open minds. They had no malice against church authorities - most of them had devoted much (if not all) of their lives to working with them. Most had entered the project either agreeing with the papal position or thinking that it was unlikely to change. Now they found themselves agreeing that change was not only necessary but inevitable. They had trouble imagining how they had ever thought otherwise. Cardinal Suenens explained how they had been conditioned to have a double consciousness, to live a lie:

For years theologians have had to come up with arguments on behalf of a doctrine they were not allowed to contradict. They had an obligation to defend the received doctrine, but my guess is they already had many hesitations about it inside. As soon as the question was opened up a little, a whole group of moralists arrived at the position defended by the majority here. . . The bishops defended the classical position, but it was imposed on them by authority. The bishops didn't study the pros and cons. The received directives, they bowed to them, and they tried to explain them to their congregations.

As soon as people began to think independently about the matter, the whole structure of deceit crumbled at the touch. The past position could not be sustained, even among these people picked by the Vatican itself, much less among Catholics not as committed as these were. And it was absurd to speak of the non-Catholic world as ever recognizing this "natural law of natural reason."

The need to face the prospect of change was impressed on the people in the commission by the arguments of the five theologians defending Casti Connubii. They reduced their own case to absurdities. John Ford said that intercourse is not necessary for marital love: "Conjugal love is above all spiritual (if the love is genuine) and it requires no specific carnal gesture, much less its repetition in some determined frequency." Ford also liked to say that, if the teaching on sexual activity only for procreation were changed, people could rnasturbate with impunity. Dr. Gorres quoted the Melchite Patriarch, Maximos IV, who said in the Council deliberations that priests display a "celibate psychosis" in the area of sex. ***

The climactic vote of the commission - the one of the sixteen bishops - was nine to three for changing the church's position on contraception, with three abstentions. An agreement had been reached before the vote was taken to submit only one report for the commission, but Cardinal Ottaviani and Father Ford, seeing how things were going, had prepared a document of their own, which would later be misrepresented as an official minority document. There was only one official document, the sole one voted on by the bishops who had authority to report the body's findings. (Ottaviani was the one who had brought in these officials, hoping to get the result he wanted. When he failed to, he ignored his own device.)

The Ford "report", drawn up with Germain Grisez, said that any change was inconceivable. This was not because there were rational arguments against change: "If we could bring forward arguments which are clear and cogent based on reason alone, it would not be necessary for our Commission to exist, nor would the present state of affairs exist in the church." No, the real reason to keep the teaching was that it was the teaching: "The Church could not have erred though so many centuries, even through one century, by imposing under serious obligations very grave burdens the name of Jesus Christ, if Jesus Christ did not actually impose these burdens." As a priest had put it in earlier debate, if the church sent all those souls to hell, it must keep maintaining that that is where they are.

This was not an argument that made sense, at this point, to the commission - to bishops any more than to the theologians or lay experts. But it was the one argument that, in the end, mattered to Paul VI. He took advantage of the so-called "minority report" to say that he could not accept the commission's findings since there had been disagreement with it. Nine of the twelve bishops, fifteen of the nineteen theologians, and thirty of the thirty-five nonepiscopal members of the commission were not enough for him. Votes on the decrees in the Council had not been unanimous either, but he did not call them invalid for that reason. Paul's real concern was with the arguments that Ottaviani brought to him after the report was submitted. He knew what was worrying the Pope, and could play on that. F.X. Murphy had observed one thing about Paul's behavior throughout the meetings of the Council:

The Pope was a man obviously torn by doubts, tormented by scruples, haunted by thoughts of perfection, and above all dominated by an exaggerated concern - some called it an obsession - about the prestige of his office as Pope. His remarks on this score at times displayed an almost messianic fervor, a note missing in the more sedate utterances of his predecessors. His innumerable statements on the subject were made on almost every occasion, from casual week-day audiences of Sunday sermons from the window of his apartment to the most solemn gatherings in season and out of season. Since it was part of the strategy of the [conciliar] minority to accuse the majority of disloyalty toward the Holy Father' Paul's constant harping-in inevitably caused the majority to think that he perhaps did share these misgivings, at least to a certain extent. It was noticed by students of Paul’s remarks that while he showed an open- mindedness about almost any other subject, on the single theme of the papacy his mind remained strangely closed to analysis.

Those words were written before Humanae Vitae was issued, but they explain the letter entirely.

The commission members left their work convinced that the pope could no longer uphold a discredited teaching. When the report was leaked to the press, Catholics around the world took heart at the signs of change. So far from upsetting their faith, as the Pope feared, it heartened them. What would unsettle their faith was what Paul did next - issue Humanae Vitae, with its reiteration of Casti Connubii's ban: ('The church, calling men back to the observance of the natural law, as interpreted by its constant doctrine, teaches that each and every marriage act must remain open to the transmission of life." Catholics responded with an unparalleled refusal to submit. Polls registered an instant noncompliance with the encyclical. At a previously scheduled Catholic festival of devout young Germans at Essen, a resolution that those attending could not obey the encyclical passed through a crowd of four thousand with only ninety opposing votes. A simultaneous poll among German Catholics at large found that 68 percent of them thought the Pope was wrong on contraception. Similar findings rolled in from around the world.

What were bishops to do? The encyclical itself had ordered them to explain and enforce the Pope’s decision, along with all priests:

Be the first to give, in the exercise of your ministry, the example of loyal internal and external obedience to the teaching authority of the Church. . . it is of the utmost importance, for peace, of consciences and for the unity of the Christian People, that in the field of morals as well as in that of dogma, all should attend to the magisterium of the Church, and all should speak the same language.

But for the first time in memory, bishop's statements, while showing respect for the encyclical, told believers they could act apart from it if they felt bound by conscience to do so. The assembly of bishops in the Netherlands put it most bluntly: "The assembly considers that the encyclical's total rejection of contraceptive methods is not convincing on the basis of the arguments put forward." other Episcopal panels were more circumspect, but signaled that they would not consider those disobedient to the encyclical to be separating themselves from the sacraments. The Belgian bishops put it this way: "Someone, however, who is competent in the matter under consideration and capable of forming a personal and well-founded judgment - which necessarily presupposes a sufficient amount of knowledge - may, after serious examination before God, come to other conclusions on certain points." In other words: do not treat the Pope's words lightly, but follow your conscience after taking a serious look at them. That was the position taken by bishops in the United States ("the norms of licit dissent come into play"), Austria, Brazil, Czechoslovakia, Mexico, [] West Germany, Japan, France, Scandinavia, and Switzerland. The Scandinavian statement was typical:

Should someone, however, for grave and carefully considered reasons, not feel able to subscribe to the arguments of the encyclical, he is entitled, as has been constantly acknowledged, to entertain other views than those put forward in a non-infallible declaration of the Church. No one should, therefore, on account of such diverging opinions along, be regarded as an inferior Catholic.

The Pope was stunned. He would spend the remaining ten years of his pontificate as if sleepwalking, unable to understand what had happened to him, why such open dissent was entertained at the very top of the episcopate. Four years after the publication of Humanae Vitae, when the Pope looked "cautious, nervous, anxious, alarmed," he deplored the defiance of church teaching in a sermon at Saint Peter's, and this was the only explanation he could come up with for the defiance: "Through some crack in the temple of God, the smoke of Satan has entered'" He was increasingly melancholy and prone to tears. Had he opened that crack in the temple of God? Even as a nagging suspicion this was a terrible burden to bear. It explains the atmosphere of darkening tragedy that hung about his final years. He would not issue another encyclical in all those ten years. He was a prisoner of the Vatican in a way that went beyond his predecessors' confinement there. He was imprisoned in its structures of deceit. Meanwhile, Father Ford, who had assisted his fellow Jesuit Gustave Martelet in drawing up Humanae Vitae under Cardinal Ottaviani's direction, went back to the seminary where he had taught moral theology for years and found that the Jesuit seminarians their refused to take his classes, since they knew from others in the Order what he had done in Rome. As a result of what he considered his life's great coup, his teaching career was over.303 (Emphasis supplied)

Intervenors even alleged that as early as 1999, "nearly 80% of Catholics believed that a person could be a good Catholic without obeying the church hierarchy’s teaching on birth control."304 They, therefore, put in issue whether the views of petitioners who are Catholics represent only a very small minority within the church.

We cannot make any judicial determination to declare the Catholic Church’s position on contraceptives and sex. This is not the forum to do so and there is no present controversy—no contraceptive and no individual that has come concretely affected by the law.

This court must avoid entering into unnecessary entanglements with religion. We are apt to do this when, without proof, we assume the beliefs of one sect or group within a church as definitive of their religion. We must not assume at the outset that there might be homogeneity of belief and practice; otherwise, we contribute to the State’s endorsement of various forms of fundamentalism.305

It is evident from the account quoted above giving the historical context of the contraceptives controversy that the Catholic church may have several perspectives and positions on the matter. If this is so, then any declaration of unconstitutionality on the basis of the perceived weaknesses in the way conscientious objectors are accommodated is premature.

VI

Family

There being no actual case or controversy, the petitions also do not provide justification for this court to declare as unconstitutional Section 23(2)(i) of the RH Law on spousal consent, and Section 7, paragraph 2 on parental consent. These provisions read:

SEC 23. Prohibited Acts. – The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

x x x x

(2) Refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the ground of lack of consent or authorization of the following persons in the following instances:

(i) Spousal consent in case of married persons: Provided, That in case of disagreement, the decision of the one undergoing the procedure shall prevail; and

SEC. 7. Access to Family Planning – x x x

No person shall be denied information and access to family planning services, whether natural or artificial: Provided, That minors will not be allowed access to modern methods of family planning without written consent from their parents or guardian/s except when the minor is already a parent or has had a miscarriage.

Spousal Consent

According to petitioners Millennium Saint Foundation, Inc., et al., "while both play equal roles in procreation, the man or the husband is violated of his right of conjugal decisions when it is the woman’s decision that will be followed whether to avail of contraceptives or not."306

Petitioners Couples for Christ Foundation, Inc., et al. argued that "the [reproductive health] procedure does not involve only the body of the person undergoing the procedure [as] it affects the future of the family (in terms of its size or even the presence of children) as well as the relationship between spouses."307

The ponencia agreed and discussed how "giving absolute authority to the spouse who would undergo a procedure, and barring the other spouse from participating in the decision would drive a wedge between the husband and wife, possibly result in bitter animosity, and endanger the marriage and the family, all for the sake of reducing the population."308 The ponencia cited the constitutional mandate of the state to defend the "right of spouses to found a family x x x."309

These provisions of Republic Act No. 10354 do not threaten nor violate any right, even the right to family.

Section 23(a)(2)(i) applies to a specific situation: when there is a disagreement between married persons regarding the performance of a "legal and medically-safe reproductive health procedure."

The general rule encourages married persons to discuss and make a conjugal decision on the matter. They are caught in a problem when they disagree. This agreement may fester and cause problems within their family.

The disagreement will not be created by the RH Law. It will exist factually regardless of the law. Section 23(a)(2)(i) of the law becomes available to break this deadlock and privilege the decision of the spouse undergoing the procedure.

This is logical since the reproductive health procedures involve the body, health and well being of the one undergoing the procedure.

The marriage may be a social contract but is certainly not a talisman that removes the possibility of power relationships. Married persons, especially the woman/wife, can still suffer inequality. Married persons may still experience spousal abuse.

Generally, it will be the woman who will ask to undergo reproductive health procedures. The interpretation of the majority therefore affects her control over her body. Rather than enhance the zones of autonomy of a person even in a married state, the interpretation of the majority creates the woman’s body as a zone of contestation that gives the upper hand to the husband.

The majority derives the right to a family from Article XV and reads it in isolation from all the other provisions of the Constitution. In my view, these rights should be read in relation to the other provisions.

Article XV reads:

The Family

Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.

Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.

Section 3. The State shall defend:

(1) The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood;

(2) The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development;

(3) The right of the family to a family living wage and income; and

(4) The right of families or family associations to participate in the planning and implementation of policies and programs that affect them.

The ponencia cites Morfe v. Mutuc310 on the protected zone of marital privacy. This case is not in point. It does not apply to a conflict between the spouses. It applies in declaring a zone of privacy of spouses vis-à-vis state action.

Citing Griswold v. Connecticut, the court said:

The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the ground of its amounting to an unconstitutional invasion of the right of privacy of married persons; rightfully it stressed ‘a relationship lying within the zone of privacy created by several fundamental constitutional guarantees’. So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: ‘The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control Protection of this private sector – protection, in other words, of the dignity and integrity of the individual – has become increasingly important as modern society has developed. All the forces of a technological age – industrialization, urbanization, and organization – operate to narrow the area of privacy and facilitate intrusions into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society.’311 (Emphasis supplied)

This is one view. It did not take into consideration the state’s interest in ensuring human rights and the fundamental equality of women and men.

The right to a family should be read in relation to several provisions in the Constitution that guarantee the individual’s control over her or his own person. Thus, Article III, Section 1 of the Constitution states:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

This due process clause implies and congeals a person’s right to life. This includes the individual’s right to existence as well as her or his right to a quality of life of her or his choosing. The State is not to sanction a program or an act that deprives the individual of her or his control over her or his life and body. The "equal protection" clause in this provision ensures that individuals, even those that enter into a married state, do not coexist and suffer under conditions of marital inequality.

Article II elaborates on the positive obligation of the State to the right to life as embodied in the due process clause in two sections. Sections 9 and 11 provide:

Section 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.

Section 11. The State values the dignity of every human person and guarantees full respect for human rights. (Emphasis supplied)

Section 14 of the same article also improves on the goal of equality of men and women. While section 1 provides for equal protection of the laws, this section creates a positive duty on the State as follows:

Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men. (Emphasis supplied)

The fundamental equality of women and men, the promotion of an improved quality of life, and the full respect for human rights do not exist when a spouse is guaranteed control the other spouse’s decisions respecting the latter’s body.

The autonomy and importance of family should not be privileged over the privacy and autonomy of a person. Marriage is not bondage that subordinates the humanity of each spouse. No person should be deemed to concede her or his privacy rights and autonomy upon getting married.312

By declaring Section 23(a)(2)(i) as unconstitutional, the majority interprets the privacy and autonomy of the family as also providing insulation of patriarchal or sexist practices from state scrutiny.313 This is not what the Constitution intends.

Parental Consent

The ponencia and the majority declared Section 7 of Republic Act No. 10354 unconstitutional for violating the right to privacy as the provision dispensed with the written parental consent for minors who are already parents or those who have had a miscarriage to access modern methods of family planning. Justice Reyes in his concurring and dissenting opinion is also of the view that Section 7 is violative of Article II, Section 12 of the Constitution on the parents’ natural and primary right and duty to nurture their children.

I disagree with both the ponencia and Justice Reyes’ views.

In declaring its unconstitutionality, the ponencia stated:

Equally deplorable is the debarment of parental consent in cases where the minor, who would be undergoing a procedure, is already a parent or has had a miscarriage. x x x

x x x x

There can be no other interpretation of this provision except that when a minor is already a parent or has had a miscarriage, the parents are excluded from the decision making process of the minor with regard to family planning. Even if she is not yet emancipated, the parental authority is already cut off just because there is a need to tame population growth.

x x x x

To insist on a rule that interferes with the right of parents to exercise parental control over their minor-child or the right of the spouses to mutually decide on matters which very well affect the very purpose of marriage, that is, the establishment of conjugal and family life, would result in the violation of one's privacy with respect to his family. It would be dismissive of the unique and strongly-held Filipino tradition of maintaining close family ties and violative of the recognition the State affords couples entering into the special contract of marriage [that they act] as one unit in forming the foundation of the family and society.314

Justice Reyes, in striking down the exception to the required written parental consent for minors under Section 7, paragraph 2, also states:

[t]here exists no substantial distinction as between a minor who is already a parent or has had a miscarriage. There is no cogent reason to require a written parental consent for a minor who seeks access to modern family planning methods and dispense with such requirement if the minor is already a parent or has had a miscarriage. Under the Family Code, all minors, generally, regardless of his/her circumstances, are still covered by the parental authority exercised by their parents. That a minor who is already a parent or has had a miscarriage does not operate to divest his/her parents of their parental authority; such circumstances do not emancipate a minor.315

The ponencia, however, clarified that access to information about family planning must be differentiated from access to reproductive health methods.316 Further, it said that there must be an exception with respect to life-threatening cases. In which case, the minor’s life must be safeguarded regardless of whether there is written parental consent.317

This provision has an exceptional application – when minors are already parents or when the minor has miscarried before. The proviso inserted by the legislature should be presumed to be based on a well-founded policy consideration with regard to the peculiar situation of minors who are already parents or those who have experienced miscarriages. As I have stressed earlier, it has been the policy of the courts in this jurisdiction to:

x x x avoid ruling on constitutional questions and to presume that the acts of the political departments are valid in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation of powers which enjoins upon each department a becoming respect for the acts of the other departments. The theory is that as the joint act of Congress and the President of the Philippines, a law has been carefully studied and determined to be in accordance with the fundamental law before it was finally enacted.318

Rather than assume homogenous choices of family relationships on the basis of a speculative belief relating to "close family ties," the better part of prudence and wisdom from this Court would be to consider a more cosmopolitarian reality. There are traditional and non-traditional families. Many of these arrangements of family are the result of free human choices that go through a gamut of emotional conflicts. Teenage pregnancy, like many other life defining events, do take their toll on family. We cannot speculate—for now—as to how families will deal with these stresses. We cannot speculate on why these pregnancies happen.

Those of us who have not and can never go through the actual experience of miscarriage by a minor, those of us who cannot even imagine the pain and stresses of teenage pregnancy, should not proceed to make blanket rules on what minors could do in relation to their parents. None of us can say that in all cases, all parents can be understanding and extend sympathy for the minors that are legally under their care. None of us can say that there are instances when parents would think that the only way to prevent teenage pregnancy is a tongue lashing or corporeal punishment. We cannot understand reality only from the eyes of how we want it to be.

Only when we are faced with an actual controversy and when we see the complications of a real situation will we be able to understand and shape a narrowly tailored exception to the current rule. In the meantime, the wisdom of all the members of the House of Representative, the Senate, and the President have determined that it would be best to give the minor who is already a parent or has undergone a miscarriage all the leeway to be able to secure all the reproductive health technologies to prevent her difficulties from happening again. We must stay our hand for now.

VII

Separation of Powers

Justice del Castillo is of the view that based on our power to "promulgate rules for the protection and enforcement of constitutional rights" under Article VIII, Section 5(5) of the Constitution, we have the power to issue directives to administrative bodies as to "the proper rules" that they should promulgate in the exercise of the powers granted to them.319

He cites Echegaray v. Secretary of Justice,320 thus:

The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it enhanced the rule making power of this Court. Its Section 5(5), Article VIII, provides:

x x x           x x x          x x x

"Section 5. The Supreme Court shall have the following powers:

x x x           x x x          x x x

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court."

The rule making power of this Court was expanded. This Court for the first time was given the power to promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also granted for the first time the power to disapprove rules of procedure of special courts and quasi-judicial bodies. x x x321

He believes that we have the power to approve or modify such rules or require them to issue rules for the protection of constitutional rights. He states:

Viewed in light of the broad power of the Court to issue rules for the protection and enforcement of constitutional rights, the power to disapprove the rules of procedure of quasi-judicial bodies is significant in that it implies the power of the Court to look into the sufficiency of such rules of procedure insofar as they adequately protect and enforce constitutional right. Moreover, the power to disapprove the aforesaid rules of procedure necessarily includes or implies the power to approve or modify such rules or, on the one extreme, require that such rules of procedure be issued when necessary to protect and enforce constitutional rights. In other words, within and between the broader power to issue rules for the protection and enforcement of constitutional rights and the narrower power to disapprove the rules of procedure of quasi-judicial bodies, there exists penumbras of the power that the Court may exercise in order to protect and enforce constitutional rights.

x x x x

Taken together [with Article VIII, Section 1 of the Constitution], the expanded jurisdiction of the Court and the power to issue rules for the protection and enforcement of constitutional rights provide the bases for the Court (1) to look into the sufficiency of safeguards in the implementation of the RH Law insofar as it will adversely affect the right to life of the unborn, and (2) to issue such orders as are necessary and essential in order to protect and enforce the constitutional right to life of the unborn. x x x322 (Emphasis supplied)

For this reason, it is suggested that "x x x the Court x x x issue an order:

(1) directing the FDA to formulate the rules of procedure in the screening, evaluation and approval of all contraceptives that will be used under the RH Law;

(2) the rules of procedure shall contain the following minimum requirements of due process:

(a) publication, notice and hearing,

(b) the Solicitor General shall be mandated to represent the unborn and the State’s interest in the protection of the life of the unborn,

(c) interested parties shall be allowed to intervene,

(d) the standard laid down in the Constitution, as adopted under the RH Law, as to what constitute allowable contraceptives shall be strictly followed, i.e., those which do not harm or destroy the life of the unborn from conception/fertilization,

(e) in weighing the evidence, all reasonable doubts shall be resolved in favour of the right to life of the unborn from conception/fertilization, and

(f) the other requirements of administrative due process, as summarized in Ang Tibay, shall be complied with.

The FDA should be directed to submit these rules of procedure within 30 days from receipt of the Court’s decision, for the Court’s appropriate action.323

The issue in Echegaray was whether the Supreme Court has jurisdiction to control the execution and enforcement of its judgment. The discussion on the expanded powers of the Supreme Court in Section 5(5) of Article VIII of the Constitution was made in this context. It is not to be taken as justification for the Court to usurp powers vested upon other departments. Thus, after this Court in that case said that "[t]he Court was x x x granted for the first time the power to disapprove rules of procedure of special courts and quasi-judicial bodies[,]" it continued with the statement:

x x x But most importantly, the 1987 Constitution took away the power of the Congress to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer shared by this Court with the Congress, more so with the Executive. If the manifest intent of the 1987 Constitution is to strengthen the independence of the judiciary, it is inutile to urge, as public respondents do, that this Court has no jurisdiction to control the process of execution of its decisions, a power conceded to it and which it has exercised since time immemorial.

To be sure, it is too late in the day for public respondents to assail the jurisdiction of this Court to control and supervise the implementation of its decision in the case at bar. x x x324 (Emphasis supplied)

This court’s power to "promulgate rules for the protection and enforcement of constitutional rights" as stated in Article VIII, Section 5(5) of the Constitution must be harmonized with the rest of the provision, which provides:

Section 5. The Supreme Court shall have the following powers:

x x x x

5. Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. (Emphasis supplied)

The court’s power to issue rules, including rules concerning the protection and enforcement of constitutional rights, is limited to judicial procedures. We do not have competence to compel the issuance of administrative procedures. Rules of procedure of quasi-judicial bodies can only be disapproved by the Supreme Court, but not issued, modified or approved by it.

The Constitution vests the executive power upon the President. He or she, and not the judiciary, exercises the power of control over all executive departments, bureaus and offices,325 including the Food and Drug Administration. The judiciary has no administrative power of control or supervision over the Food and Drug Administration.

Insisting that we can impose, modify or alter rules of the Food and Drug Administration is usurpation of the executive power of control over administrative agencies. It is a violation of the principle of separation of powers, which recognizes that "[e]ach department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere."326 The system of checks and balances only allows us to declare, in the exercise of our judicial powers, the Food and Drugs Administration’s acts as violative of the law or as committed with grave abuse of discretion.327 Such power is further limited by the requirement of actual case or controversy.328

FINAL NOTE

It is not the Supreme Court alone that can give the full substantive meaning of the provisions of the Constitution. The rules that aid in reshaping social reality as a result of the invocation and interpretation of constitutional provisions should be the product of the interrelationship of all constitutional organs.

This case presents us with an opportunity to clearly define our role. We have the power to declare the meanings of constitutional text with finality. That does not necessarily mean that we do not build on the experience of the other departments and organs of government. We are part of the constitutional design that assures that the sovereign people’s will is vetted in many ways. Deference to the outcome in legislative and executive forums when there is no "actual case or controversy" is also our constitutional duty.

Judicial deference implies that we accept that constitutional role that assures democratic deliberation to