Jurisprudence of conscientious objection

Both the Catholic Bishops’ Conference of the Philippines and supporters of the Reproductive Health Law lauded the Supreme Court’s decision but for different reasons. The Pro-RH advocates hailed the Court’s ruling declaring the RH Law constitutional as a victory for the people whereas the CBCP and the Anti-RH law advocates saw the ruling to strike down eight (8) provisions of the law, particularly its penal provisions, as an effective way of emasculating and rendering the law toothless.   As things now stand, it seems that the pro-RH cannot say that they gained a complete victory whereas the opposition cannot feel that they suffered a total loss.

Below are the eight provisions of the RH law which were declared unconstitutional and why the Court struck them down.

Section 7, only insofar as it: (a) requires private health facilities, non-maternity specialty hospitals, and hospitals owned by religious groups to refer patients not in an emergency or life-threatening situation to another health facility which is conveniently accessible (b) provides access to family planning and RH services to minors who have been pregnant or had a miscarriage without a parental consent.

The rest of Section 7, however, which provides access to family planning, was upheld by the Court, notably this line: “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.” This is decisively pro-RH.

The Court was of the view that the obligation to refer imposed by the RH law violates religious belief and conviction of a conscientious objector. Once the medical practitioner, against his will, refers a patient, his conscience is immediately burdened as he is compelled to perform an act against his beliefs. The option of referral is a false compromise because it makes pro-life health providers complicit in the performance of an act that they find morally repugnant or offensive.

Section 23-A-1, which punishes RH providers, regardless of their religious belief, who fail or refuse to disseminate information regarding RH services and programs, and Section 23-A-3, insofar as it punishes an RH provider who fails to refer any non-life-threatening case to another RH provider, were also struck down because in the dissemination of information regarding programs and services and in the performance of reproductive health procedures, religious beliefs must be respected.

Section 23-A-2-i, which allows a married individual not in a life-threatening case to access RH procedures without the consent of the spouse, was declared unconstitutional. The Court said that reproductive health procedures should require the mutual consent and decision between the husband and the wife as they affect issues intimately related to the founding of the family. While as a general rule I support spousal consent, where spousal abuse is present, the decision of the spouse undergoing the procedure must prevail.

Section 23-B, insofar as it punishes any public officer who refuses to support RH programs, and Section 17, which mandates a 40-hour pro bono service by private and nongovernment RH service providers, including gynecologists and obstetricians, as a prerequisite for PhilHealth accreditation, were struck down. Conscientious objectors are exempted from these provisions as long as their religious beliefs and convictions do not allow them to render reproductive health service, pro bono or otherwise.

Section 3.01-A and J of the RH law Implementing Rules and Regulations (IRR), which defines abortifacients as “primarily” inducing abortion instead of simply inducing abortion, were declared unconstitutional. The qualifier “primarily contravenes section 4(a) of the RH Law and violates Section 12, Article II of the Constitution, which recognizes the sanctity of family life. Incidentally, only Justice Marvic Leonen dissented on this particular issue.

Section 23-A-2-ii, which prohibits RH service providers from refusing to perform legal and medically-safe reproductive health procedures on minors in non-life-threatening situations without parental consent, was also declared unconstitutional. The Court ruled that by effectively limiting the requirement of parental consent to “only in elective surgical procedures,” it denies the parents their right of parental authority in cases where what is involved are “non-surgical procedures.”

The votes on the provisions declared unconstitutional were decisive and, in my view, the margins are insurmountable. The decision in its entirety is likely to stay and will be the law of the land.

My personal view is that it is good we finally have a strong conscientious objection jurisprudence in our constitutional system. This should apply to all issues of the highest ethical concern and to all religions, including nonbelievers. I do not think it applies to matter of taxation and property as in my view those are proper subjects of police power. In any case, the Supreme Court will eventually have to clarify where conscientious objection is appropriate. I certainly think this is consistent with our Bill of Rights, which probably explains why Justice Antonio Carpio, as pro-RH as you can find a judge to be, sided with the majority in declaring the coercive provisions unconstitutional.

In columns I will write after Easter, I will summarize the contrary views of Chief Justice Sereno and the powerful dissenting voice of Justice Marvic Leonen on these issues.

From an operational view, I do not think this is such a big loss to the pro-RH camp as survey data shows that most Filipinos, including doctors and other health workers, are pro-RH and very few of the latter will invoke religious beliefs in conscientiously objecting to the mandates of the law. In addition, I am one of those who have always believed that coercion in ethical matters are a wrong way to go and law can only go so far to influence behavior in issues such as those related to reproductive health.

The truth is that law has its limits. Those who thought that passing an RH Law would end the RH wars clearly were mistaken. The fight on RH continues and it  is still, and rightly so, in the streets and clinics, and in the hearts and minds of our people.

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