President Rodrigo Duterte’s second State of the Nation Address dealt with the delays in the implementation of the Reproductive Health Law. He called the attention of Chief Justice Maria Lourdes Sereno and attributed such delays to the Supreme Court’s temporary restraining order on subdermal contraceptives Implanon and Implanon NXT.
CJ Sereno for her part, responded and said that the SC did not issue a TRO against the RH Law or all contraceptives but only the two brands of implants earlier mentioned. In a way, CJ Sereno was saying that the TRO did not delay the implementation of the RH law.
Both the President and the CJ are lawyers. I am not. However, I have been involved in RH-related advocacy for more than two decades, including the last (almost) five years of its supposed implementation. Thus, I am confident of what I know about the issue.
Duterte’s statement that the TRO caused delays is true. But the TRO is just one cause. The truth is, of the almost five years after the RH bill became a law, it was only free from legal challenges for ONE year. That was after the SC decided that the law is NOT unconstitutional in April of 2014. That year was used by the Department of Health to set-up mechanisms for its implementation, and the National Implementation Team and the Regional Implementation Teams. Some systems were also put in place.
However, in May 2015, anti-RH groups again lodged a petition against the DoH and the Food and Drugs Administration and the SC on contraceptives. In June of the same year, the High Court issued the TRO against contraceptive implants and prevented the FDA from certifying contraceptives with pending applications with them. CJ Sereno is, therefore, correct as far as their June 2015 TRO is concerned.
Even with the TRO on implants, the DoH continued offering family planning services minus implants. Let me just mention here that from the time it was introduced in the country, the implant became an instant favorite of the women doing family planning because the insertion is quite easy and it is effective for three years.
Non-government organizations and private health providers continued (and still continue) to provide implants to women because there are not covered by the TRO.
Naturally, DoH appealed to the SC to have the TRO lifted. What made matters worse was in response to such appeal, the SC issued another decision in August of 2016 the wording of which created much confusion among advocates, government agencies, and service providers on the ground. This decision seemed to have expanded the TRO to other contraceptives, and prevented the FDA from issuing registrations and recertifications to all other contraceptives.
The August 2016 decision created problems on the ground as many public service providers were at a quandary on what family planning methods were not covered by the TRO. Some, to be on the safe side, just told women that they did not have contraceptives in their Health Centers.
Apprehension was also high because the registrations of contraceptives were already lapsing. Data on this show that by 2018, more than 80 percent of registrations would have lapsed. The implants that DoH purchased amounting to many millions of taxpayers’ money will expire by 2018.
Such problems created delays in implementing government’s family planning program. President Duterte was correct in saying that the TRO (especially the August 2016 SC decision) created delays in the RH law implementation. There is no doubt about this.
The SC’s April 2017 decision among other things, CLARIFIED that the TRO was not meant to affect other contraceptives, only Implanon and Implanon NXT. This was good. But harm was already done.
The latest decision did not lift the TRO on implants but said that as soon as the DoH and FDA are able to comply with SC orders on FDA process of registering contraceptives, and amendments to the law’s Implementing Rules and Regulations (IRR), the TRO is DEEMED LIFTED.
This is where Duterte’s Sona pronouncement on RH was lacking. It was good that he reiterated his pro-RH stance and informed the CJ that the TRO caused delays. These should have sent a strong signal to those who may be dilly-dallying in the law’s implementation.
However, really, the ball now is in the court of the FDA and DoH. These two agencies are with the Executive, and thus, directly under the Office of the President. Instead of concentrating on the CJ, it would have been perfect if the President instructed the DoH and FDA to fast track their compliance with orders of the SC. No wonder, as Duterte was addressing the CJ on this, Sereno was seen smiling.
I do not know if the President was not fully informed of the status of the TRO but based on his words, he seemed unaware of important contents of the SC’s April 2017 decision.
In fairness to the DoH and FDA, I know that they are now in the process of complying with SC’s orders. I have seen some draft documents required by the High Court. They also said that they are being careful with these so there will no longer be similar problems in the future.
We are just waiting for the DoH and FDA to fully comply with SC orders. We hope that this happens soon. After which, the TRO is deemed LIFTED and family planning programs as contained in the RH law, hopefully, can go full blast .
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