REPRODUCTIVE HEALTH-CONTRACEPTION-ABORTION LINK

Is Imbong a Prelude to Abortion as Griswold was to Roe?

!OLIVER M. TUAZON ∗

!I. INTRODUCTION

II. REPRODUCTIVE HEALTH AND CONTRACEPTION

A. Definition of Reproductive Health

B. Contraception: an Integral Component of Reproductive Health

C. Contraception in Philippine Laws

1. R.A. 4275: Contraceptive Act

2. R.A. 5921: Pharmacy Law

3. R.A. 6365, as amended by P.D. 79: Population Act

4. R.A. 7610: Magna Carta of Women

5. R.A. 10354: Reproductive Health Law

III. REPRODUCTIVE HEALTH AND ABORTION

A. Abortion as a Component of Reproductive Health

B. American Jurisprudence: Tracing the Link Between Contraception and

Abortion

1. Griswold: Constitutional Right to Contraception of Married

Couples

2. Eisenstadt: Extending the Constitutional Right to

Contraception to the Unmarried using the Equal Protection

Clause as Basis

3. Roe: From Constitutional Right to Contraception to Abortion

4. Casey: Decision to Contracept and Abort Having Same

Character

C. Imbong: A Clear Break from American Jurisprudence?

1. Right to Life and Right to Contraception?

2. When Right to Life Begins: Fertilization or Implantation?

3. Principle of No-Abortion Integral to RH Definition

The author was a faculty member of the Institute of Biology, College of Science, University of the Philippines, ∗

where he also earned his masters degree in Microbiology. He now reads Law at the UST Faculty of Civil Law and is an understudy of ULR.

4. Proscription Extends to Abortifacients

IV. CONCLUSION !!“It should be recognized, moreover, that in

some critical respects the abortion decision is of the same character as the decision to use contraception, to which Griswold v. Connecticut [...] afford constitutional protection 1!!

I. Introduction !Dubbed the most divisive and controversial issue in the contemporary history of the

Philippines, wounding the very soul of the nation, the Republic Act (R.A.) 10354, also known as 2

“The Responsible Parenthood and Reproductive Health Act of 2012”, has been declared by the 3

Supreme Court “not unconstitutional” save for eight provisions which it struck down as 4

unconstitutional. !Although the term reproductive health (RH) had been surreptitiously inserted by the

authors of the Implementing Rules and Regulations (IRR) for “The Magna Carta of Women”, 5

RA 10354 represents the first time that the term has officially entered the legal system of the

country in a legislative enactment with executive approval, now capped by a judicial sanction. !

Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) [hereinafter Casey].1

Imbong et al. v. Ochoa et al., G.R. No. 204819, April 8, 2014, Justice Del Castillo, Concurring and Dissenting Opinion at 2

2

An Act Providing for a National Policy on Responsible Parenthood and Reproductive Health, Republic Act No. 3

10354 (2012).

In its official webpage, the Court explained the use of the double negative “not unconstitutional” as a formulation 4

peculiar to constitutional adjudication. The Court works on the presumption that the assailed law is constitutional and the burden of proving that it is unconstitutional falls on the petitioner. As it happened in this case, the failure of the petitioners to prove otherwise compels the Court to declare that the law is “not unconstitutional”. Moreover, the use of the single positive “constitutional” connotes that the law is permanent and can never be declared unconstitutional.

An Act Providing for the Magna Carta of Women, Republic Act 9710 (2009).5

Reproductive health was defined two decades ago during the International Conference

on Population and Development (ICPD) in Cairo, and the first RH legislation was proposed to 6

the Philippine Congress a few years afterwards. It took more than a decade of persistent filing

of the bill in Congress and an equally persistent opposition from various sectors of society 7

before it was finally passed, thanks to the determination of the newly elected President B.S.

Aquino III. His push for the passage of the law accelerated after having obtained a USD464M

grant from the US-Obama administration until he clinched a favorable vote in Congress amidst 8

accusations of railroading and arm-twisting. 9 10

!A major objection to the incorporation of RH into the Philippine legal system is its

essential link to the promotion of contraception and a contraceptive lifestyle—thereby

promoting what is termed a contraceptive mentality —as well as its apparent link with 11

abortion. In the United States, the ruling of its Supreme Court in Griswold vs. Connecticut , 12 13

striking down as unconstitutional a state law prohibiting the sale of contraceptives, has been seen

as preparing the ground for its later pronouncement in Roe vs. Wade declaring abortion as a 14

constitutional right. 15

! Report of the International Conference on Population and Development, September 5-13, 1994 [hereinafter ICPD 6

Report].

See the 14 petitions against the RH law at http://sc.judiciary.gov.ph/microsite/rhlaw/ (last accessed October 10, 7

2013)

Belinda Olivares-Cunanan, Political Tidbits. http://www.polbits.com/2014/04/long-time-rh-bill-watchers-note-how-8

it.html (last accessed April 16, 2014).

Jose S. Palma, Catholic Bishops Conference of the Philippines, A matter of fairness (an open letter), August 13, 9

2012.

Philippine Daily Inquirer, (December 14, 2012), http://newsinfo.inquirer.net/323771/anti-rh-lawmakers-accuse-4-10

palace-officials-of-lobbying-during-voting

Contraceptive mentality refers to a set of beliefs and assumptions making contraception an integral part of one’s 11

lifestyle. Cf. Brian Clowes, The "Contraceptive Mentality" and Its Consequences, LifeIssues.Net, http://www.lifeissues.net/writers/clo/clo_10contraceptivrmind.html (last accessed October 16, 2013).

See Center for Reproductive Rights, Clinton to Canada: Abortion Access Must be Included in G8 Initiative, July 4, 12

2010, http://reproductiverights.org/en/feature/clinton-to-canada-abortion-access-must-be-included-in-g8-initiative

Griswold v. Connecticut, 381 U.S. 479 (1965).13

Roe v. Wade, 410 U.S. 113 (1973).14

James S. Cole, US v. Windsor: a pit stop, not the finish line, http://www.mercatornet.com/articles/view/15

us_v._windsor_a_pit_stop_not_the_finish_line {last accessed September 7, 2013).

Will the Court’s decision in Imbong vs. Ochoa, declaring the RH Law not

unconstitutional, be the Philippine Court’s Griswold, paving the way for an abortion law in the

years to come? This paper will answer this question by analyzing the decision of the Supreme

Court on the RH Law penned by Associate Justice Jose Catral Mendoza, as well as the separate

or dissenting opinions of the other Justices in so far as they relate to the question at hand. It will

also make use of recent scientific studies and reports in the process of analyzing the said

jurisprudence. !II. Reproductive Health and Contraception !

A. Definition of Reproductive Health !As noted earlier, the term reproductive health has officially entered the legal system of

the Philippines through the RH Law, thereby making the Court’s pronouncement as to its validity

a landmark decision. The term was not introduced even in 2009, when R.A. 9710, or the

“Magna Carta of Women”, was enacted, although the latter’s Implementing Rules and

Regulations included it without making an attempt to define it. !The first international consensus document that defined RH was the Programme of

Action of the 1994 International Conference on Population and Development (ICPD). The 16

document also defined “reproductive health care” and repeatedly mentioned “reproductive

health services” but did not define it. Instead, it attempted to define “reproductive rights,”

which becomes “reproductive health rights” in R.A. 10354. In the Philippines, all these terms

were defined by the RH Law. !A comparison of the definitions of terms between the ICPD Programme of Action and

R.A. 10354 shows that the former had been used as a template to define the terms in the latter.

The ICPD document defines RH as 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 its functions and processes. Reproductive health therefore implies that people

World Youth Alliance White Paper on Reproductive Health 3 (February 2012) [hereinafter WYA RH white paper].16

are able to have a satisfying and safe sex life and that they have the capability to

reproduce and the freedom to decide if, when and how often to do so.” !On the other hand, the RH Law defines RH as referring to the !“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 functions and processes. This implies that people are able to have a

responsible, safe, consensual and satisfying sex life, that they have the capability to

reproduce and the freedom to decide if, when, and how often to do so.” [similar

words between the two definitions were boldfaced] !It is noteworthy that the ICPD Programme of Action merely contained

“recommendations,” the implementation of which rely on particular initiatives from participating

states. Legally, this means that no country can be obligated to implement the ICPD 17

recommendations if they violate its laws and religious, ethical, and cultural values. 18

!!B. Contraception: an Integral Component of Reproductive Health !

The Court was very clear in its pronouncement that the RH Law is mainly a State

population control measure fueled by public funds. It explains: !“Despite efforts to push the RH Law as a reproductive health law, the Court

sees it as principally a population control measure. The corpus of the RH Law is geared

towards the reduction of the country's population. While it claims to save lives and keep

our women and children healthy, it also promotes pregnancy-preventing products. As

stated earlier, the RH Law emphasizes the need to provide Filipinos, especially the poor

and the marginalized, with access to information on the full range of modem family

planning products and methods. These family planning methods, natural or modern,

Atty. Jo Imbong, The ominous rights rhetoric in reproductive health legislation, presented at the University of Asia and the 17

Pacific Faculty Forum, May 4, 2011.

WYA RH white paper, supra note 18, at 6. 18

however, are clearly geared towards the prevention of pregnancy. For said reason, the

manifest underlying objective of the RH Law is to reduce the number of births in the

country.” 19

!Hence, the Court sees contraception as the “central idea” of the RH Law: !

“The Court, thus, agrees with the petitioners' contention that the whole idea of

contraception pervades the entire RH Law. It is, in fact, the central idea of the RH Law.

Indeed, remove the provisions that refer to contraception or are related to it and the RH

Law loses its very foundation. As earlier explained, "the other positive provisions such as

skilled birth attendance, maternal care including pre-and post-natal services, prevention

and management of reproductive tract infections including HIV/AIDS are already

provided for in the Magna Carta for Women.” 20

!!C. Contraception in Philippines Laws !

The Court made it clear that the promotion of contraception as a government policy

has been entrenched in the Philippine Laws since 1966. It sees the RH Law as a “mere

compilation and enhancement of the prior existing contraceptive and reproductive health laws, but

with coercive measures.” All of these laws were enacted during the incumbency of Pres. 21

Ferdinand Marcos, except for the last one which was promulgated by Pres. Gloria Macapagal-

Arroyo. !!1. R.A. 4275: Contraceptive Act !

Imbong, G.R. No. 204819, at 3419

Id. at 3520

Id. at 102.21

The first law allowing the sale, dispensation and distribution of contraceptive drugs and

devices in the Philippines was enacted in 1966 as R.A. 4729, which the Court called the 22

Contraceptive Act. The Court affirmed that this Act already contains “adequate safeguards to

ensure that only contraceptives that are safe are made available to the public.” Two requisites

have to be met, according to the Court. The sale, dispensation and distribution shall be done by

a “duly licensed drug store or pharmaceutical company” and “with the prescription of a qualified

medical practitioner.” 23

!!2. R.A. 5921: Pharmacy Law !

In 1969, the provisions in R.A. 4729 were complemented by those of the Pharmacy Law

or R.A. 5921, as amended. The latter contains “provisions relative to dispensing of abortifacients or 24

anti-conceptional substances and devices.” It says that “[n]o drug or chemical product or device 25

capable of provoking abortion or preventing conception as classified by the Food and Drug

Administration shall be delivered or sold to any person without a proper prescription by a duly

licensed physician.” It is interesting to note that the law regulates both “abortifacients” and

“anti-conception” substances and devices.

The law further requires pharmacists to record in a separate register data pertaining to

the dispensation of such drugs and devices, which includes the number and date of the

prescription; name and address of the physician; name, quantity and manufacturer of the drug;

name and address of the purchaser; date of filling the prescription; and signature of the

pharmacist filling the prescription. 26

!3. R.A. 6365, as amended by P.D. 79: Population Act

An Act to Regu,late the Sale, Dispensation, and/or Distribution of Contraceptive Drugs and Devices, Republic Act 22

No. 4729 (1966).

R.A. 4729, sec. 1.23

An Act Regulating the Practice of Pharmacy and Setting Standards of Pharmaceutical Education in the Philippines 24

and for Other Purposes, Republic Act No. 5921 (1969).

R.A. 5921, sec. 37. 25

Id.26

!In 1971, Pres. Ferdinand Marcos promulgated R.A. 6365 or the “Population Act of the 27

Philippines.” The Court acknowledged that this law was enacted in furtherance of the United

Nations Declaration on Population in 1967. The latter “recognized that the population problem

should be considered as the principal element for long-term economic development” and

thereby measures were enacted to promote “male vasectomy and tubal ligation to mitigate

population growth.” As cited by the Court in Imbong, R.A. 6365 envisioned that "family 28

planning will be made part of a broad educational program; safe and effective means will be

provided to couples desiring to space or limit family size; mortality and morbidity rates will be

further reduced." 29

!In 1972, President Marcos, who at that time took upon himself both Executive and

Legislative powers, revised the Population Act in his Presidential Decree (P.D.) No. 79. Among 30

the provisions of the decree, the recent Court noted the following : [it] made "family planning a 31

part of a broad educational program," provided "family planning services as a part of over-all

health care," and made "available all acceptable methods of contraception, except abortion, to all

Filipino citizens desirous of spacing, limiting or preventing pregnancies." !!4. R.A. 7610: The Magna Carta for Women !

More recently, in the last year of the incumbency of Pres. Gloria Macapagal-Aroyo, R.A.

9710, or “The Magna Carta for Women”, was enacted. The Court has noted that the said law

was a product of the evolution of the use of contraceptives and family planning methods “from

being a component of demographic management, to one centered on the promotion of public

health, particularly, reproductive health” in consonance with the International Conference on 32

An Act Establishing a National Policy on Population, Creating the Commission on Population and for Other 27

Purposes, R.A. 6365 (1971).

Imbong, G.R. No. 204819, at 22.28

Id.29

Revising the Population Act of Nineteen Hundred and Seventy-One, Presidential Decree No. 79 (1972).30

Imbong, G.R. No. 204819, at 22.31

Id. at 23.32

Population and Development. ! The Court stated that R.A. 9710 already “mandated the State to provide for

comprehensive health services and programs for women, including family planning and sex

education,” the latter two being among the contested provisions in the RH Law. 33

!!4. R.A. 10354: The RH Law !

The RH Law is seen by the Court as the response of both the Legislative and Executive

departments of government to further control the country’s population which “kept on

galloping at an uncontrollable pace” indicating that the existing laws were “ not adequate.” In 34

an effort to harmonize the existing laws with the RH Law, the Court declared: !“The legislative intent in the enactment of the RH Law in this regard is to leave

intact the provisions of R.A. No. 4729. There is no intention at all to do away with it. It is

still a good law and its requirements are still in to be complied with. […] the effectivity of

the RH Law will not lead to the unmitigated proliferation of contraceptives since the sale,

distribution and dispensation of contraceptive drugs and devices will still require the

prescription of a licensed physician. With R.A. No. 4729 in place, there exists adequate

safeguards to ensure the public that only contraceptives that are safe are made

available to the public.” [emphasis in the original] 35

!The Court took for granted that the Philippines already has a “prior existing” 36

reproductive health law, although as pointed out above, it is only in R.A. 10354 that the term

reproductive health was introduced in any statute enacted by the Philippine Congress, and

thereby defined by it. Together with the previous laws on contraception—sans the coercive

measures—the Court’s apparently mistaken belief of an existing reproductive health law in the

Philippines provided some sort of justification in its pronouncement that the RH Law is “not

Id.33

Id.34

Id. at 57.35

Id. at 102.36

unconstitutional. The Court ratiocinates: ! “Be that as it may, it bears reiterating that the RH Law is a mere compilation and

enhancement of the prior existing contraceptive and reproductive health laws, but with

coercive measures. Even if the Court decrees the RH Law as entirely

unconstitutional, there will still be the Population Act (R.A. No. 6365), the Contraceptive

Act (R.A. No. 4729) and the reproductive health for women or The Magna Carta of

Women (R.A. No. 9710), sans the coercive provisions of the assailed

legislation.” [emphasis supplied]. !Will the Court’s decision be affected by the knowledge that the RH Law is the first of its

kind to introduce the concept of reproductive health in a legislative enactment? One major

difference between R.A. 10354 from R.A. 9710—which the Court labels as “the reproductive

health for women”—is the incorporation of the term “reproductive health” in the latter. !R.A. 9710, for instance, provides for “[r]esponsible, ethical, legal, safe, and effective

methods of family planning,” while R.A. 10354 provides for “ethical and medically safe, legal, 37

accessible, affordable, non-abortifacient, effective and quality reproductive health care

services.” The word “ethical” is present in every instance that R.A. 9710 stated the provision 38

on family planning methods, whereas the same word only appeared once in R.A. 10354. !To further illustrate, R.A. 10354 mentioned in its guiding principles the “ (…) provision

of ethical and medically safe, legal, accessible, affordable, non-abortifacient, effective and quality

reproductive health care services and supplies (…). Then, under “Duties and Responsibilities” 39

in Section 19, it omits the word ethical, as it does in all the other descriptions related to RH

services, for example, Section 19(2) which is phrased in the following manner: “Ensure people’s

access to medically safe, non-abortifacient, legal, quality and affordable reproductive health

goods and services.” 40

! R.A. 9710, sec. 17(3).37

R.A. 10354, sec. 3(d).38

Id., sec. 3(d).39

Id., 10354, sec. 19(2).40

Table 1. Comparison of components of reproductive health care services between R.A. 10354 and R.A. 9710.

R.A. 10354 R.A. 9710

SEC. 3. (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 modern 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 g ove r n m e n t m e a s u r e s o f i d e n t i f y i n g marginalization: Provided, That the State shall also provide funding support to promote modern natural methods of family planning, especially the Billings Ovulation Method, consistent with the needs of acceptors and their religious convictions; (q). (…) The elements of reproductive health care include the following: (1) Family planning information and services which shall include as a first priority making women of reproductive age fully 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 sexually 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

SEC. 17. Women’s Right to Heal th . – (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 be 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. 14Access to the following services shall be ensured: (1) Maternal care to include pre-and post-natal services to address pregnancy and infant health and nutrition; (2) Promotion of breastfeeding; (3) Responsible, ethical, legal, safe, and effective methods of family planning; (4) Family and State collaboration in youth sexuality education and health services without prejudice to the primary right and duty of parents to educate their children; (5) Prevention and management of reproductive tract infections, including sexually transmitted diseases, HIV, and AIDS; (6) Prevention and management of reproductive tract cancers like breast and cervical cancers, and other gynecological conditions and disorders; (7) Prevention of abortion and management of pregnancy-related complications; (8) In cases of violence against women and children, women and children victims and survivors shall be provided with comprehensive health services that include psychosocial, therapeutic, medical, and legal interventions and assistance towards healing, recovery, and empowerment; (9) Prevention and management of infertility and sexual dysfunction pursuant to ethical norms and medicals standards; (10) Care of the elderly women beyond their child-bearing years; and (11) Management, treatment, and intervention of mental health problems of woman and girls. In addition, healthy lifestyle activities are encouraged and promoted through programs and projects as strategies in the prevention of diseases. (b) Comprehensive Health Information and Education. – The State shall provide women in all sectors with appropriate, timely, complete, and

!

The inclusion of the term "reproductive health” to describe the mandatory services

provided by the RH Law requires further consideration. Why did the legislators bother to

include the same provisions in two different laws, the difference being the inclusion of the term

“reproductive health?” In fact, the Court acknowledged that the other positive provisions in the

RH Law are already provided for by the Magna Carta for Women. 41

!Furthermore, there is no clear indication that the government is mandated to provide

contraception in R.A. 9710. Its persistent use of the word “ethical” in provisions on family

planning services, and the omission of the term “reproductive health” may be interpreted to

mean that the Legislature intended the exclusion of artificial contraceptives in its health care

services. Moreover, the word “contraceptives” never appeared in R.A. 9710, while the same can

be found in R.A. 10354. !!III. REPRODUCTIVE HEALTH AND ABORTION !A. Abortion as a Component of Reproductive Health !

As shown above, the term reproductive health was not an invention of the Philippine

legislature. The definition used in the RH Law was mainly lifted from the ICDP definition two

decades ago. It is necessary therefore to consider whether such definition includes abortion as a

component of RH. !A review of the ICPD Programme of Action shows that abortion was included as part

of basic reproductive health services: !“All countries should strive to make accessible through the primary health-care

system, reproductive health to all individuals of appropriate ages as soon as possible and

no later than the year 2015. Reproductive health care in the context of primary health

care should, inter alia, include: family-planning counselling, information, education,

communication and services; education and services for prenatal care, safe delivery and

Imbong, G.R. No. 204819, at 35.41

post-natal care, especially breast-feeding and infant and women's health care; prevention

and appropriate treatment of infertility; abortion as specified in paragraph 8.25,

including prevention of abortion and the management of the consequences of

abortion; treatment of reproductive tract infections; sexually transmitted diseases and

other reproductive health conditions; and information, education and counselling, as

appropriate, on human sexuality, reproductive health and responsible parenthood.

Referral for family-planning services and further diagnosis and treatment for

complications of pregnancy, delivery and abortion, infertility, reproductive tract

infections, breast cancer and cancers of the reproductive system, sexually transmitted

diseases, including HIV/AIDS should always be available, as required.” [emphases 42

supplied] !The qualification “as specified in paragraph 8.25” refers to the inclusion of abortion

where it is legal. The RH Law itself, as affirmed by the Court, “recognizes that abortion is a 43

crime under Article 256 of the Revised Penal Code.” Section 4 (s) of the law itself clearly 44

states that “reproductive health rights do not include abortion, and access to abortifacients.”

Hence, as specified in paragraph 8.25 of the ICPD document, abortion is not included as part of

the basic reproductive health services in the Philippines as the same is illegal and is punished

under the country’s penal code. The Court, therefore, confirmed that the RH Law “does not

allow abortion in any shape or form.” 45

!Recently, however, there is a global push for the inclusion of abortion as an essential

component of reproductive health care services and the legalization of abortion in countries

where it is still punished under their penal codes. Currently, the penal code of the Philippines is

being revised and it is not clear at this stage if the abortion decriminalization agenda is among its

thrusts. !Among the key movers of this propaganda are US President Barack Obama and his

former Secretary of State, Hilary Clinton. The track record of Obama before and during his

ICPD Report, supra note 3, at 7.6.42

Id. at 8.25.43

R.A. 10354, sec. 29. 44

Imbong, G.R. No. 204819, at 101.45

presidency shows that he has an agenda to promote more abortions. Clinton also promotes 46

abortion and has said that, “[y]ou cannot have maternal health without reproductive health, and

reproductive health includes contraception and family planning and access to legal, safe

abortions.” 47

!A glimpse of the effect of this campaign in the Philippines may be had in the

Implementing Rules and Regulations (IRR) of the RH Law itself. The word “primarily” was

inserted in the definition of abortifacients thereby making “secondary” abortifacient effects

allowable. However, the Court, upon notice of the petitioners, struck down such surreptitious

insertion as unconstitutional. This topic will be discussed more in detail below. !!B. American Jurisprudence: Tracing the Link Between Contraception and Abortion !

The Philippine Supreme Court has proclaimed that it has cut the umbilical cord linking 48

it to US jurisprudence. However, time and again it resorts to US decisions whenever there is

want of available information and legal scholarship in the Philippines. A short review of some

landmark decisions of the US Supreme Court regarding contraception and abortion may help us

understand the possible implications of the Philippine Supreme Court’s landmark decision that

seems to affirm if not grant a constitutional right to contraception in Imbong. !!1. Griswold: Constitutional Right to Contraception of Married Couples !

The landmark case decided by the US Supreme Court granting a constitutional right to

contraception is Griswold v. Connecticut. Such right to contraception was then limited to 49

married couples under the umbrella of the right to privacy, and more specifically, marital privacy.

Lifesite News, http://www.lifenews.com/2010/11/07/obamaabortionrecord/ (last accessed April 20, 2014).46

Center for Reproductive Rights, Clinton to Canada: Abortion Access Must be Included in G8 Initiative, (July 4, 47

2010), http://reproductiverights.org/en/feature/clinton-to-canada-abortion-access-must-be-included-in-g8-initiative

Francisco et al. v. House of Representatives et al., 415 SCRA 44 (2003).48

Griswold v. Connecticut, 381 U.S. 479 (1965).49

Prior to Griswold, pro-contraception groups had started to challenge anti-contraception

statutes in certain States from the 1940s. However, these had all been dismissed on procedural 50

grounds.

In Griswold, the Executive Director and Medical Director of the Planned Parenthood

League of Connecticut were convicted by the lower court for giving married couples

information and medical advice on how to prevent conception and subsequently prescribing a

contraceptive device for a married woman. The said acts directly contravened a Connecticut

statute that criminalized the use of any drug or article to prevent conception. This statute was

assailed by the accused. !In striking down the contested statute, the US Supreme Court affirmed that “forbidding

the use of contraceptives violates the right of marital privacy which is within the penumbra of

specific guarantees of the Bill of Rights.” 51

! !2. Eisenstadt: Extending the Constitutional Right to Contraception to the

Unmarried using the Equal Protection Clause as Basis. !Griswold was meant to address only the “rights” of married couples to purchase

contraceptives. However, the principle used by the Court in arriving at its decision was extended

by it in Eisenstadt v. Baird to favor the sexual behavior of individuals, married or not, using as a

justification the Equal Protection Clause. 52

!In Eisenstadt, a Massachusetts law that made it a felony for anyone to give away a drug,

medicine or instrument, or article for the prevention of conception—with a few exceptions—

was contested. The accused in this case was convicted for giving a woman a contraceptive foam

after delivering a lecture to students on contraception. !

See Poe v. Ullman, 367 U.S. 497 (1961) and Tileson v. Ullman, 318 U.S. 44 (1943).50

Griswold, 381 U.S. at 486.51

Eisenstadt v. Baird, 405 U.S. 438 (1972)52

The US Court in this case argued that “by providing dissimilar treatment for married

and unmarried persons who are similarly situated, the statute violates the Equal Protection

Clause,” thereby extending Griswold’s decision, which was meant for married couples, to 53

married and unmarried individuals. ! !3. Roe: From Constitutional Right to Contraception to Abortion !

In less than a decade, the same reasoning used in Griswold was applied by the US

Supreme Court to legalize abortion in Roe v. Wade. The “right of marital privacy” used to justify

Griswold’s ruling had been transformed into the “right to privacy, including a woman's qualified

right to terminate her pregnancy” in Roe. 54

!Ironically, the same Roe who initiated the class action challenging the constitutionality 55

of the Texas criminal abortion laws is now one of the main advocates against abortion in the

US. 56

!4. Casey: Decision to Contracept and Abort Having Same Character !

The US Supreme Court in Roe legalized abortion under certain conditions. Almost two

decades later, the same Court further liberalized abortion laws in the United States in the 1992

decision known as Planned Parenthood v. Casey. 57

!

Eisenstadt, 405 U. S. at 44353

Roe v. Wade, 410 U.S. 113 (1973)54

Her real name is Norma McCorvey. She actually brought her child to term.55

Steven Ertelt, LifeNews.Com, (January 22, 2013), http://www.lifenews.com/2013/01/22/woman-behind-roe-v-56

wade-im-dedicating-my-life-to-overturning-it/

Casey, 505 U. S. 83357

Roe is still considered an “unsettled law.” See Sheila Liaugminas, Obamacare as settled law, or not, (October 8, 2013), 58

http://www.mercatornet.com/sheila_liaugminas/view/12893

In Casey, five provisions of the Pennsylvania Abortion Control Act of 1982 regulating

the performance of abortion were questioned. Invoking the doctrine of stare decisis, the US 58

Court ruled in favor of further relaxing abortion laws. !Significantly, the decision admitted as a matter-of-fact the connection between

contraception and abortion. As the US Court stated: !“The Roe rule’s limitation on state power could not be repudiated without

serious inequity to people who, for two decades of economic and social developments,

have organized intimate relationships and made choices that define their views of

themselves and their places in society, in reliance on the availability of abortion in

the event that contraception should fail.” (emphasis supplied) 59

!Furthermore, the US Court asseverated that “in some critical respects the abortion

decision is of the same character as the decision to use contraception, to which Griswold

v. Connecticut, Eisenstadt v. Baird, and Carey v. Population Services International afford

constitutional protection.” (emphasis supplied) !!C. Imbong: A Clear Break from American Jurisprudence? !

The string of landmark decisions of the US Supreme Court enumerated above—from

contraception to abortion, and their acknowledged interconnection—may well be the legal basis

for the firm opposition by some sectors in Philippine society to the RH Law. A closer look into

the Philippine Supreme Court decision in Imbong may shed light on whether our highest court is

leading the Philippines into the same direction. !!1. Right to Life and Right to Contraception? !

Casey, 505 U. S. at 85559

The first part of Section 12, Article II of the Philippine Constitution has become the

bone of contention of the entire debate. It provides: “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.” 60

[emphasis supplied] !In Imbong, the Court affirmed the “right to life” of every human being as a “universally

accepted principle.” It declares: 61

“Even if not formally established, the right to life, being grounded on natural

law, is inherent and, therefore, not a creation of, or dependent upon a particular law,

custom, or belief. It precedes and transcends any authority or the laws of men.” 62

The Court further affirmed that such right to life is given “more than ample protection” 63

in Section 1 of the Bill of Rights of the Constitution, which provides: “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.” !However, the Court does not find anything wrong with a State-sponsored contraceptive

program. It justifies itself by saying that “the use of contraceptives and family planning methods

in the Philippines is not of recent vintage”, enumerating previous laws in the country as 64

explained above. !This apparent hand-washing by the Court has been questioned vehemently by one of the

main petitioners, former Sen. Francisco Tatad, who says that the Court failed to respond to the

key argument of the constitutional protection to the life of the unborn: !

CONST., art. II, sec. 12.60

Imbong, G.R. No. 204819, at 38.61

Id. 62

Id. 63

Id.64

“In my petition, I said that the State, as “the equal protector of the life of the

mother and the life of the unborn from conception,” is ipso facto the protector of

conception, and therefore cannot be the source of any contraception, even for just one

solitary woman. “The protector of conception cannot simultaneously be the preventer

thereof,” I told the Court.

For as long as truth and reason are not perverted, that statement cannot be

disputed […]

In the final ruling, however, there is not a single word about that solid and

uncontested objection, as though it was never made during the Orals, as though it was

never restated in our final memorandum, as though it does not exist and cannot possibly

exist at all […]

Is it absurd to hold that contraception destroys conception, so the protector of

the life of the unborn from conception, and (by necessity) of conception itself, cannot

be the source and provider of contraception? No, it is not. The truth is self-evident.

Now, if the Court thinks it is an absurdity, should it not have employed all the

intellectual resources at its command to shoot it down? Why does the ruling run to 105

pages, but is unable to assign a single line or word to this all important point? […]

To put it differently, if it is “not unconstitutional” for the State to provide a

program of contraception, does it make any sense for the Constitution to make the State

“the protector of the life of the mother and the life of the unborn from conception and

of conception itself ”? […]

Only after it is shown, if it can be shown at all, that the State, which is the

protector of conception, has also the right or the duty to run a program of

contraception, can one proceed to the secondary questions. But the Court, for all its

wisdom, missed this point altogether. Or, seeing it, it decided to drown it in silence.” 65

! Earlier, the same petitioner argued that the constitutional provision under scrutiny is

“both a positive duty and a negative one.” He explained: 66

Francisco Tatad, Manila Standard Today, April 14, 2014, http://manilastandardtoday.com/2014/04/14/the-anti-rh-65

laity-will-fight-on/

Francisco Tatad, Manila Standard Today, August 12, 2013, http://manilastandardtoday.com/2013/08/12/the-rh-66

law-and-the-constitution/

! “The positive duty—what the State must do to protect the unborn— needs an

enabling law to spell it out in concrete terms. But its negative duty—what the State must

not do in order to protect the unborn—is self-executing, and needs no enabling legislation.

It commands the State not to do anything that will harm the unborn or that will prevent

the unborn from being conceived. ! Since contraceptives are artificial methods or devices used before, during or after

coition to prevent conception, this simply means the State cannot use any of them without

denying its duty to protect the unborn. Were the State to become the official provider of

contraception, its duty to protect the unborn from conception would apply only to those

who shall have survived its own program of contraception. Supposing no embryo survives

the program of contraception? Then there will be “no unborn” for the State “to protect.”

That would be an absurdity and an abomination.” 67

!The same argument had been put forward by a seasoned lawyer and legal commentator,

Atty. Jose Sison, who argued that the issue at hand is mainly a legal or constitutional, and not a

moral one. He explained that the use of some contraceptives leads to abortion, and used 68

Casey’s declarations on the “reliance on the availability of abortion in the event that

contraception should fail” and that “abortion is of the same character as the decision to use 69

contraception” to hint at the contraceptive mentality and lifestyle that will be created by a 70

government-sponsored contraception program. He further argued that, assuming contraception

actually prevents conception, ! “x x x the Constitution (Section 12 Article II) does not actually empower Congress to pass

a law preventing conception. It only orders the State to protect the life of the unborn

from conception. Preventing conception is indeed inconsistent with the mandate to

protect the life of the unborn from conception. Such law preventing conception in effect

regulates such matters as the sexual relations of the spouses and the right of each spouse

Id. 67

Jose Sison, The Core Issues, The Philippine Star, September 27, 2013, p. 15, col. 1.68

Casey, 505 U. S. at 835.69

Casey, 505 U.S. at 852.70

to open coition of the other which are internal aspects of the family that may violate the

sanctity of family life.” 71

In sum, both Tatad and Sison assert that the State-sponsored, promoted, and funded

distribution of contraception runs counter to the constitutional mandate to protect the life of

the unborn from conception. They affirm that the Constitution does not empower Congress to

pass a law preventing conception—the principle mode of action of contraception—because it is

inconsistent with that mandate. Otherwise, it would be a mockery for the State to function as

the protector of the life of the unborn, and, at the same time, prevent the same from being

conceived. !A similar argument—this time focusing on the right to life—had been made earlier by

former Chief Justice Hilario Davide, Jr. when the RH bill was still pending in Congress. He said

that “if the bill becomes a law, it would violate the inherent [right] to life, the first and most

fundamental human right.” He explained that “the threats to life caused by earthquakes or 72

tsunamis, or even nuclear radiation, and terrorism and war pale in comparison to the destruction

of life or the threat to life by state policies or legislation.” 73

!These arguments are presented anew in this paper as they have not been addressed by the

Court in its decision and may well be the “missing link” as to future rulings of the Court on

matters related to contraception and abortion. They may help the reader understand a possible

connection between the two, given the current ruling of the Court, as further explained below.

!2. When Right to Life Begins: Fertilization or Implantation? !

The controversial question is this: when does conception occur? When does life begin?

The majority of the Justices considered that this is a scientific and medical issue that should not

be decided by them at that stage without a proper hearing of evidence. In this light, the ponente,

Associate Justice Jose Catral Mendoza, illustrated using statutory construction tools his “strong

Sison, supra note 69.71

Id.72

Philippine Daily Inquirer, March 26, 2011, http://newsinfo.inquirer.net/breakingnews/nation/view/73

20110326-327785/Davide-RH-bill-worse-than-earthquakes-tsunamis

view that life begins at fertilization.” 74

Referring to the Section 12, Article II of the Constitution as quoted above, Mendoza

argued that !“[t]extually, the Constitution affords protection to the unborn from conception. This is

undisputable because before conception, there is no unborn to speak of. For said reason,

it is no surprise that the Constitution is mute as to any proscription prior to conception or

when life begins. The problem has arisen because, amazingly, there are quarters who have

conveniently disregarded the scientific fact that conception is reckoned from fertilization.

They are waving the view that life begins at implantation. Hence, the issue of when life

begins.” 75

! Using the “plain and legal meaning” approach, Mendoza explained that the “traditional 76

meaning” of the word conception as “described and defined by all reliable and reputable sources,

means that life begins at fertilization.” He made use of a common dictionary, as well as a legal 77

dictionary to drive home the point, and cited Philippine jurisprudence acknowledging that “an 78

unborn child has already a legal personality.” 79

Furthermore, using the Records of the Constitutional Convention, Mendoza examined

the deliberations of the commissioners on the issue and how the term conception used in the

Imbong, G.R. No. 204819, at 39.74

Id at 39-40.75

Id at 40. “It is a canon in statutory construction that the words of the Constitution should be interpreted in their 76

plain and ordinary meaning”

Id at 41. “Webster's Third New International Dictionary describes it as the act of becoming pregnant, formation of 77

a viable zygote; the fertilization that results in a new entity capable of developing into a being like its parents.”

Id. “Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation of the female ovum by 78

the male spermatozoon resulting in human life capable o f survival and maturation under normal conditions.”

Id. “In Continental Steel Manufacturing Corporation v. Hon. Accredited Voluntary Arbitrator Allan S. Montano, 147 it was 79

written: Life is not synonymous with civil personality. One need not acquire civil personality first before he/she could die. 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.” [Emphases in the original] In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme Court, said that the State "has respect for human life at all stages in the pregnancy" and "a legitimate and substantial interest in preserving and promoting fetal life." Invariably, in the decision, the fetus was referred to, or cited, as a baby or a child.149

constitutional provision in question “clearly refers to the moment of ‘fertilization.’” He further 80

pointed out that the constitutional commissioners, in clearly defining conception as fertilization,

intended “to prohibit Congress from enacting measures that would allow it determine when life

begins.” 81

Finally, Mendoza scrutinized the “medical meaning” of the word conception. Using

several medical books, including a statement of the Philippine Medical Association, he 82 83

illustrated the scientific evidence that life begins at conception or fertilization. ! In sum, Mendoza affirmed the “undeniable conclusion” that “a zygote is a human 84

organism and that the life of a new human being commences at a scientifically well-defined

moment of conception, that is, upon fertilization.” [emphasis in the original] 85

! Given all these reasons, the Court says it “cannot subscribe to the theory” that life 86

begins at implantation, adding: ! “This theory of implantation as the beginning of life is devoid of any legal or

scientific mooring. It does not pertain to the beginning of life but to the viability of the

fetus. The fertilized ovum/zygote is not an inanimate object - it is a living human being complete with

DNA and 46 chromosomes. Implantation has been conceptualized only for convenience by

those who had population control in mind. To adopt it would constitute textual infidelity

not only to the RH Law but also to the Constitution. !

Id. 80

Id. at 44.81

Id. at 46-47. Mosby Medical, Nursing, and Allied Health Dictionary; Textbook of Obstetrics; Physiological & 82

Pathological Obstetrics; Human Embryology & Teratology

Id. at 4783

fertilized egg84

Imbong, G.R. No. 204819, at 48.85

Id.86

Not surprisingly, even the OSG does not support this position.” [emphases 87

in the original] ! It is interesting to note, moreover, that the beginning of life at conception was a truism

taught in all biology textbooks in the US that were written before Roe v. Wade. After Roe, some

textbooks changed the meaning without appealing to a single new discovery to justify the

change. 88

Describing this concept better, a white paper of Westchester Institute demonstrates: ! Based on universally accepted scientific criteria, a new cell, the human zygote, comes into

existence at the moment of sperm-egg fusion, an event that occurs in less than a second.

Upon formation, the zygote immediately initiates a complex sequence of events that

establish the molecular conditions required for continued embryonic development. The

behavior of the zygote is radically unlike that of either sperm or egg separately and is

characteristic of a human organism. Thus, 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. [emphasis 89

supplied] !More recently, the President of the American College of Pediatricians joined the

Philippine Medical Association in affirming that “a human person or human being already does 90

exist at the moment of fertilization.” 91

Id.87

PETER KREEFT, THREE APPROACHES TO ABORTION 34-35 (2002).88

Maureen L. Condic, When Does Human Life Begin? A Scientific Perspective, Westchester Institute for Ethics & the 89

Human Person, WHITE PAPER, Volume 1, Number 1, October 2008, at ix.

Article 40 of the Civil Code grants “presumptive personality” to the conceived child and could be another topic for 90

a research paper. See Record of the 1986 Constitutional Convention IV, September 19, 1986, at 799.

Philippine Daily Inquirer, October 6, 2013, http://opinion.inquirer.net/62853/sciences-final-answer-to-when-91

human-life-begins

Given all these explanations from legal, medical and historical viewpoints, the “Court's

position that life begins at fertilization, not at implantation” is worthy of substantial credence. 92

!!3. Principle of No-Abortion Integral to RH Definition !

Among the main movers for the passage of the RH law in the Philippines are those who

also support a woman’s “right” to abortion. One of these is a group that openly provides 93

instructions in the native tongue of Tagalog on how to perform an abortion with impunity, 94

given than abortion is a crime under the country’s existing penal code. The Executive Director 95

of the latter is, in fact, one of the authors commissioned by the Executive department to write

the law’s IRR. !In Imbong, the Court belabored the point that the “clear and unequivocal intent” of 96

the Framers of the Philippine Constitution in protecting the life of the unborn, as spelled out in

Section 12 of Article II, was to “prevent the Legislature from enacting a measure legalizing

abortion.” The Court declared: “It was so clear that even the Court cannot interpret it 97

otherwise.” [emphasis in the original] 98

!Further, the Court affirmed that the RH Law itself is in line with this constitutional 99

intent. It recognizes abortion as a crime under Article 256 of the Revised Penal Code, which

Imbong, G.R. No. 204819, at 51.92

Rina Jimenez-David, What a mom wants, (May 8, 2011), http://opinion.inquirer.net/inquireropinion/columns/view/93

20110508-335222/What-a-mom-wants

Likhaan Center for Women’s Health, http://www.likhaan.org/fil/content/ligtas-na-paraan-pagpapalaglag (last 94

accessed September 6, 2011).

REV. PEN. CODE, art. 256.95

Imbong, G.R. No. 204819, at 48.96

Id.97

Id.98

RA 10354, sec 4, q, 3 & s and sec. 29.99

punishes the “destruction or expulsion of the fertilized ovum.” As pointed out by Justice 100

Carpio in his Concurring Opinion, and quoted as well in the main decision, the RH Law is !“replete with provisions that embody the policy of the State to protect the travel of the

fertilized ovum to the uterus [sic] 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 the fertilized ovum as determined by the Food and Drug

Administration.” R.A. 10354 protects the fertilized ovum by prohibiting services,

methods, devices or supplies that prevents its implantation on the uterus [sic] wall.” 101

!The Court repeated and emphasized in its decision that the "principle of no abortion" is

embodied in the constitutional protection of life and it must always be upheld. 102

!4. Proscription Extends to Abortifacients !

The Court also decided that the RH Law is consistent with the Constitution in

prohibiting abortifacients, defined 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.” The Court 103

further explained:

“As stated above, the RH Law mandates that protection must be afforded from the

moment of fertilization. By using the word "or," the RH Law prohibits not only drugs or

devices that prevent implantation, but also those that induce abortion and those that

induce the destruction of a fetus inside the mother's womb. Thus, an abortifacient is any

drug or device that either:

Imbong, G.R. No. 204819, at 49.100

Id, Justice Carpio, Concurring Opinion at 2-3.101

Id. at 54.102

R.A. 10354, sec. 4a.103

(a) Induces abortion; or

(b) Induces the destruction of a fetus inside the mother's womb; or

(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb,

upon determination of the FDA.” 104

Connecting this explanation of the meaning of abortifacient under the law with the

previous discussion on the beginning of life, the Court further clarified:

“By expressly declaring that any drug or device that prevents the fertilized ovum to

reach and be implanted in the mother's womb is an abortifacient (third kind), the RH

Law does not intend to mean at all that life only begins only at implantation, as Hon.

Lagman suggests. It also does not declare either that protection will only be given upon

implantation, as the petitioners likewise suggest. Rather, it recognizes that: one, there is a

need to protect the fertilized ovum which already has life, and two, the fertilized ovum

must be protected the moment it becomes existent - all the way until it reaches and

implants in the mother's womb. After all, if life is only recognized and afforded

protection from the moment the fertilized ovum implants - there is nothing to

prevent any drug or device from killing or destroying the fertilized ovum prior to

implantation.” [emphasis supplied] 105

! It is under this light that the Court found the proviso under Section 9 as “empty as it is

absurd.” It provides: "any product or supply included or to be included in the EDL must 106 107

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 Court explained that the FDA “cannot

fully attest that a drug or device will not all be used as an abortifacient, since the agency cannot

be present in every instance when the contraceptive product or supply will be used.” Hence, the

Court explained that such proviso !“should bend to the legislative intent and mean that "any product or supply included or to

Imbong, G.R. No. 204819, at 50.104

Id. at 51105

Id. 106

Essential Drug List107

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 cannot be used as abortifacient." Such a

construction is consistent with the proviso under the second paragraph of the same

section that provides: 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.” 108

! These explanations led the Court to strike down Section 3.01 (a) and (j) of the RH-IRR

“insofar as it uses the qualifier “primarily” for contravening sec. 4(a) of the RH Law and

violating section 12, Article II of the Constitution.” ! To illustrate, the RH Law defines abortifacient as follows: !

“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.” 109

On the other hand, the RH-IRR defines abortifacient this way: !“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 by the Court] 110

! The same was observed in the IRR’s definition of the word contraceptive: !

“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

Imbong, G.R. No. 204819, at 52.108

R.A. 10354, sec. 4a.109

R.A. 10354 IRR, sec. 3.01a.110

determined by the Food and Drug Administration (FDA).” [emphasis supplied by the 111

Court] ! The Court noted that the insertion of the word “primarily” in the RH-IRR constitutes a

redefinition of the term abortifacient as originally provided for in the RH Law itself, and “this

cannot be done.” This redefiniton will allow “‘contraceptives’ and recognizes as ‘abortifacient’ 112

only those that 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.” 113

Such insertion of the qualifier “primarily” has some repercussions on the constitutional

protection on the life of the unborn from conception, as the Court explained: !“There is danger that the insertion of the qualifier "primarily" will pave the way for 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. With

such qualification in the RH-IRR, it appears to insinuate that 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. !For the same reason, this definition of "contraceptive" would permit the approval of

contraceptives which are actually abortifacients because of their fail-safe mechanism.” 114

!Hence, the Court declared that “the authors of the RH-IRR gravely abused their office

when they redefined the meaning of abortifacient” as this could pave the way for 115

contraceptive drugs and devices that have secondary abortifacient effects in direct contravention

of the constitutional protection of the life of the unborn from conception. The Court struck

down the IRR definitions as “ultra vires” acts, that is, it was beyond the powers of the authors of

the IRR to redefine the meaning of abortifacient and contraception. All the Justices concurred

R.A. 10354 IRR, sec. 3.01j.111

Imbong, G.R. No. 204819, at 53.112

Id.113

Id.114

Id. at 52.115

in this save the youngest among them.

!!IV. CONCLUSION !

Like Griswold, Imbong is the first Supreme Court decision in the Philippines granting or

at least affirming a constitutional right to contraception, albeit from different backgrounds. As

outlined above, the Griswold decision has been regarded only as a pit stop on the way to a later

pronouncement of the Court in Roe on the constitutional right to abortion. Commenting on

Griswold’s precedent effect on Roe, an American commentator wrote, “as the day follows night

(…) suddenly the legal protection which the American family and its members, born and

unborn, had enjoyed since the founding of the nation, came tumbling down like stacked

dominoes.” 116

!Griswold gave a judicial stamp to the right to contraception, as Imbong does, given that

it is the Court’s first pronouncement as to the legality of contraception. At the same time, the

Court claims that its decision does not legalize contraceptives in the Philippines, although it

acknowledges that the “central idea” of the RH Law is contraception, not health as it was 117

purported to be. As outlined above, the Court lists laws allowing contraceptives in the

Philippines since the 1960s. And the Court asserts that these laws “adequate safeguards to

ensure the public that only contraceptives that are safe are made available to the

public.” [emphasis by the Court] 118

In fact, the Court requires the FDA to test whatever contraceptive purchased by the

government under the RH Law according to the “constitutional yardstick” expounded in the 119

decision. It also explained that so far, “not a single contraceptive has yet been submitted to

the FDA pursuant to the RH Law” [emphasis supplied by the Court], thereby providing 120

RANDY ENGEL, SEX EDUCATION: THE FINAL PLAGUE 22 (1989).116

Imbong, G.R. No. 204819, at 35.117

Id. at 57.118

Id. at 59.119

Id.120

clear parameters for future “as-applied” challenges to the RH Law depending on the

contraceptives made available to the public pursuant to the Law. However, such safeguards seem

to address more the possible accountability of the government in the future “for any injury,

illness or loss of life resulting from or incidental to their use.” [emphasis by the Court] 121

Moreover, the Court painstakingly explains that the “principle of no abortion” holds,

and there will never be a constitutional guarantee for abortion given the Philippine Constitution’s

clear protection of the life of the unborn from conception and the Revised Penal Code’s

proscription of the same. !However, by affirming the RH Law as not unconstitutional the Court ushers in a state-

sponsored, state-funded and state-promoted contraceptive era. Moreover, it gives a legal

imprimatur to government-fueled birth control propaganda, making the same an official

ideology of the State. The law requires government health centers to hand out free 122

contraceptives, public health workers to receive training in birth control, and mandates the

teaching of sex education in schools.

It is noteworthy, however, that abortion providers themselves have admitted that the

prevalence of of contraception increases abortion rates. Ironically, the International Planned 123

Parenthood Federation claimed in the early 1960s that it was in favour of birth control but not

abortion, yet it has become the world’s leading advocate and provider of abortion. 124

!Finally, we have the word of the US Supreme Court in Casey that the development of a

contraceptive mentality—brought about by easy access to contraceptives—leads to reliance on

the “availability of abortion in the event that contraception should fail”. The same Court even 125

Id.121

Oliver M. Tuazon, MercatorNet, April 16, 2014, http://www.mercatornet.com/articles/view/122

philippines_population_control_law_gets_judicial_green_light

Dr. Malcolm Potts, former medical director of the International Planned Parenthood Federation, said: “As people 123

turn to contraception, there will be a rise, not a fall, in the abortion rate.”  Quoted in Andrew Scholberg, The Abortionists and Planned Parenthood: Familiar Bedfellows, International Review of Natural Family Planning, Winter 1980, p. 298, http://www.ewtn.com/library/PROLENC/ENCYC097.HTM

K.D. WHITEHEAD, AGENDA FOR THE “SEXUAL REVOLUTION” 112 (1981).124

Casey, 505 U. S. at 835.125

stated that “in some critical respects the abortion decision is of the same character as the

decision to use contraception” and thus they afforded constitutional protection to both. 126

!Is it any wonder that there are still people questioning the constitutional validity of the

decision of the Court as regards its sanction for contraception and population control through

the RH Law? !One of the Justices, Arturo Brion, seems to have understood the negative consequences

of a contraceptive culture that the RH Law may introduce, especially among the youth. He

asserted that “its implementation could, quite possibly, change the face of Philippine Society as we

know it today.” [emphasis in the original]. He actually cited the Casey decision but did not 127

mention the link that the decision made between contraception and abortion. However, he

acknowledged that “[f]actoring in contraceptives and birth control may immeasurably hasten […]

changes for the worse.” In fact, he asserted that “[c]ontraceptives and birth control devices, 128

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 [...]” It is not very clear that the Justice, in airing his concerns about instant 129

sex and irresponsible view on pregnancy as possible consequences of a contraceptive culture,

also foresees the possible link of such mentality to abortion, which Casey affirms to be of the

same character in some critical respects. !And so, the question remains: is the Court’s ruling in Imbong a prelude to abortion as

Griswold was to Roe? The Court assures us that it will not be so, even while it sanctions the very

same ideology that brought about the legalization of abortion in the US. For the Philippines,

only time can tell. !!!! Casey, 505 U.S. at 852.126

Imbong, G.R. No. 204819, Justice Brion, Separate Concurring Opinion at 10.127

Id. at 39.128

Id.129

!!!!