The Supreme Court has denied the appeal of the Department of Health seeking to lift the temporary restraining order it earlier issued against the registration, procurement and distribution of contraceptive implants believed to be abortifacients, but it clarified that only two brands are covered by its order.
In a resolution, the SC denied the motion for reconsideration filed by the respondents DoH et al because of the pending opposition raised by the petitioners against the listed drugs, including Implanon and Implanon NXT that the Court has remanded to Food and Drug Administration to determine if the questioned drugs and devices are not abortifacients.
The SC said that it could not lift the TRO it issued in June 2015 prior to the summary hearing to be conducted by the Food and Drug Administration on safety, efficacy, quality, and non abortiveness of the contraceptive products.
“To grant its prayer to lift the TRO would be premature and presumptuous. Any declaration by the Court at this time would have no basis because the FDA, which has the mandate and expertise on the matter, has to first resolve the controversy pending before its Office,” the resolution stated.
SC spokesperson Theodore Te said the decision was adopted during the Court’s summer session in Baguio City on April 26. The high court said the restraining order only stopped the DoH from registering, recertifying, procuring, and administering Implanon and Implanon NXT, the contraceptive devices being opposed by petitioner the Alliance for the Family Foundation Philippines Inc.
The petitioner claimed that the implants, which prevent ovulation for three years, have abortifacient features, which the FDA allegedly approved without consulting the public.
“It never meant to enjoin the processing of the entire gamut of family planning supplies that have been declared as unquestionably non abortifacient. Moreover, the injunction issued by the Court was only subject to the condition that the respondents afford the petitioners a genuine opportunity to their right to due process,” the SC said.
Late last year, several groups advocating reproductive health backed the bid of the DoH in the Supreme Court to proceed with the procurement and distribution of controversial contraceptive implants under the RH program.
Led by former DoH secretary Esperanza Cabral and former presidential assistant for social development Ben de Leon, the groups filed an intervention to appeal the ruling of the high court’s second division last August barring government’s acquisition and distribution of contraceptive products Implanon and Implanon NXT to the public.
In a motion, they asked the SC to reconsider its ruling that struck down the certifications and recertifications issued by the Food and Drug Administration (FDA) on 77 contraceptive drugs and devices—including Implanon and Implanon NXT—for violation of constitutional requirement of due process.
The intervenors also asked the SC to lift its temporary restraining order barring the department’s acquisition and distribution of contraceptive products Implanon and Implanon NXT to the public.
They asserted that the TRO violates the right of mothers and the unborn under the equal protection clause of the 1987 Constitution.
The groups also alleged that preventing access to contraceptives violates women’s reproductive health rights under Republic Act No. 10354 (RH law), RA 9710 (Magna Carta of Women) and various international human rights agreements signed by the government, including the United Nations’ Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
They warned that the country’s unplanned pregnancy rate of almost 40 percent will shoot up as well as teen-age pregnancy rates and maternal deaths from preventable childbirth complications, which are now estimated to be at 14 deaths a day will spike.
The intervenors include the Filipino Catholic Voices for Reproductive Health (C4RH); Philippine NGO Council on Population Health and Welfare (PNGOC), Philippine Center for Population and Development (PCPD) and Philippine Legislators’ Committee on Population and Development Foundation Inc. (PLCPD).
In the assailed ruling, the SC has found that the agency certified and administered 77 contraceptive drugs and devices “without the observance of the basic tenets of due process, without notice and without public hearing, despite the constant opposition of petitioners.”
While the high court denied the DOH’s motion to lift TRO and voided the certifications, it still opted to remand the case to the FDA for processing of new certifications.
The SC specifically ordered the FDA “to observe the basic requirements of due process by conducting a hearing, and allowing the petitioners to be heard, on the re-certified, procured, and administered contraceptive drugs and devices, including Implanon and Implanon NXT; and to determine whether they are abortifacients or non-abortifacients.”
In the same ruling, the high court also directed the FDA to formulate rules for screening, evaluation and approval of all contraceptive drugs and devices to be used under the RH law.
It also ordered the DOH to formulate rules for purchase and distribution of the said products and also to generate the complete list of government’s programs and services under the RH law for distribution to all health care service providers.
Implanon and Implanon NXT are thin rods inserted under the skin, which release hormones that prevent pregnancy for up to three years.
The SC issued the TRO on the distribution of said drugs in June last year for an indefinite period upon petition of Alliance for the Family Foundation Philippines Inc., which claimed that such contraceptives have abortifacient character.
The order covers “procuring, selling, distributing, dispensing or administering, advertising and promoting” the said products.
The halt order also stopped the FDA from granting pending applications for contraceptives and other reproductive products.
The SC issued the TRO a year after it upheld the legality of the RH law. The DOH, through the office of the solicitor general, earlier sought the lifting of the TRO, arguing that it would result in the waste of the supply already purchased by the government and being kept in warehouses due to expiry date of the drugs.
It also argued that the continued restraint would result in depleted supply of contraceptives in both public and commercial market. This, the DOH alleged, may increase induced abortion and maternal deaths in the country.
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