Another ‘fast break’

There is really no need to rush the implementation of the RH law. To be sure even before the law was passed and while its constitutionality is still being deliberated upon by the Supreme Court, some of its provisions are already being implemented by the Department of Health (DOH). Indeed billions of pesos have already been set aside by the DOH to purchase artificial birth control pills and devices purportedly for all Filipino women especially the poor and the uneducated, to enjoy reproductive health after exercising their informed choice. In fact one of the arguments against the passage of said law is that it is no longer necessary.

Besides even if the Supreme Court (SC) has already denied the motions for reconsideration of its decision on the matter, no entry of judgment has been issued yet as to make its decision final and executory. Moreover, its Implementing Rules and Regulations (IRR) have not yet been finalized and duly publicized for the information of the general public. The IRR is very important as far as this law is concerned because the SC did not actually uphold the constitutionality of all its provisions. In fact the SC did not say that the law is constitutional. It merely used the words “not unconstitutional” in resolving the various petitions filed against it.

The precipitous call of the law’s advocates to implement it immediately seems to be another attempt to create a public impression that the SC really ruled in their favor especially in the use of contraceptives.  It must be pointed out however that one of the main questions arising in this case regarding the use contraceptives is “when life begins.” The pro-RH group has consistently advanced the argument that contraceptives do not cause abortion because according to them, life begins only upon implantation of the fertilized ovum in the mothers’ womb and not upon fertilization of the ovum. But in its decision, the SC has flatly rejected this argument. It expressly ruled that life begins upon fertilization of the female ovum by the male sperm when the zygote is formed.

The SC rejection of this argument advanced by the RH law advocates has thus led the SC to declare as unconstitutional, the definition of abortifacients set forth in Section 3 of the law’s Implementing Rules and Regulations (IRR). Said section limits the definition of abortifacients only to those which primarily induce abortion. With this SC ruling, it is clear that other contraceptives are also arbortifacients even if they do not directly but only secondarily induce abortion especially if they prevent the implantation of a fertilized ovum.  

It is interesting and important to note and consider in this connection the well established jurisprudence in the US where contraceptives originated and are legally used purportedly for the women’s reproductive health. The US Supreme Court particularly in the case of Planned Parenthood vs Casey has already declared categorically that “contraception also means abortion.”  It recognized the fact that contraceptives are abortifacients, not only because their use invariably result in abortion primarily or secondarily. Indeed according to the US Supreme Court, the use of contraceptives may also end up in unwanted pregnancies which invariably force women to resort to abortion.

Undeniably, our RH law is patterned after the US laws on the use of contraceptives. Hence, we should also recognize this fact about their nature and effect as abortifacients. Unlike in the US however we don’t allow and recognize abortion here because  it is clearly contrary to the Constitutional provision particularly Section 12, Article II, expressly requiring the State to “equally protect the life of the mother and the life of the unborn from conception.”

Extreme care must therefore be observed in implementing this law. This recognized fact about the nature and effect of contraception which may run counter to the above mentioned Constitutional provision must be taken into account vis a vis the provisions in Section 3(a) in relation to Section 10 of the RH law mandating the government to fund the purchase of hormonal contraceptives, intra uterine device, other supplies and reproductive health services; and to distribute them or make them available for free to the marginalized sector through the local government units.

It is true that Section 9 of RA 10354 provides that “The Philippine National Drug Formulary shall include hormonal contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family supplies as determined by the Food and Drug Administration” (FDA).

Nevertheless, the danger here lies in that the FDA which is a mere agency in the Executive Department mainly charged with supervising the sale and distribution of food and drugs has been given the discretion and the  task of determining not only what are the safe, non-abortifacient and effective contraceptive supplies and devices. It is also given the task of determining whether they are “legal” which is obviously not within its competence.

In fact there may even be no need to give the agency, the power to determine whether the hormonal contraceptives, devices and other supplies are abortifacients. Based on the recognized facts obtaining abroad particularly the US which also has an RH law, all contraceptives are apparently abortifacients as they primarily and secondarily cause abortion.

The IRR must therefore fix sufficient guidelines so that the FDA will not have much leeway and discretion in determining what should be included in the Philippine National Drug Formulary. Otherwise we may have another “fast break” in the interpretation and implementation of the law that may subsequently be found unconstitutional like the DAP.

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