TRO vs contraceptives will create problems

Population control, euphemistically called “family planning” by many, has divided Filipinos for the longest time.  Past attempts by the government to promote family planning always encountered tough opposition from the Roman Catholic Church. 

The Church allows only two natural contraceptives—abstinence, and the so-called rhythm method, where the apex of feminine fertility is predicted and sexual intercourse during that period is avoided.  Anything outside of these is unacceptable, including pharmaceutical contraceptives and the condom.  Artificial contraception runs against the teachings of the Church and is, therefore, a sin.  

Despite opposition from the Church, the government under then President Ferdinand Marcos instituted a nationwide family planning program.  Family planning was discretely promoted through free contraceptives readily available at barangay offices, posters situated at government buildings, and carefully crafted advertisements on radio.

Jaime Cardinal Sin, then the leader of the Roman Catholic Church in Metropolitan Manila, simply avoided confronting the government about the issue, even when he often celebrated mass for the First Couple in Malacañang.

The government interest in population control is prompted by social and economic considerations.  A runaway increase in the national population requires the generation of more employment opportunities, as well as facilities for education and health care.  

Job generation is, however, easier said than done.  Strict laws on workers’ compensation, laws which favor labor over management, and militant labor unions aggravate the situation, which often ends up in the closure of establishments and a corresponding increase in the number of unemployed Filipinos. Restated, there aren’t enough jobs that can be generated to regularly meet the increase in the population.  

The national government does not have a steady budget for the construction of additional public schools and public hospitals proportionate to the annual increase in the population.  Most of the public money is used for so-called “discretionary funds” of politicians.  Whatever schools and hospitals are constructed every year are woefully insufficient to meet the demand brought about by more and more Filipinos being born every day.

At the turn of the 20th century, the Philippine government took a more serious look at the population control issue, and with some encouragement from agencies of the United Nations, it considered the enactment of specific legislation towards promoting birth control, with the least possible objectionable features from a religious perspective. 

As expected, the Roman Catholic church opposed the move.  This opposition lasted for about 15 years.  

Despite the opposition, Congress eventually enacted Republic Act No. 10354, or The Responsible Parenthood and Reproductive Health Act of 2012 (commonly referred to as the RH Law).  

Even before the RH Law could be enforced, its constitutionality was challenged in the Supreme Court by those opposed to artificial contraceptives.  The Court restrained the enforcement of the RH Law during the pendency of the cases.  

In 2014, the Supreme Court upheld the validity of the RH Law, but voided a few of its provisions.

A year later, however, the opponents of the RH Law managed to derail the enforcement of the RH Law a second time around.  After alleging in their petition that certain contraceptive products in the market are abortifacients, and that no hearings were conducted by health and drug authorities on the matter, they convinced the Supreme Court to issue a temporary restraining order (TRO) prohibiting the Department of Health and the Food and Drug Administration from “granting any and all pending applications for registration and/or recertification for reproductive products and supplies, including contraceptive drugs and devices.”

As result of that TRO, all new contraceptive products and devices are required to undergo a protracted registration process that takes around two years before they can be sold to the public.  The two-year period appears to be a minimum, though, because further delays can result when every registration approved by the health and drug authorities is challenged in court.  Those delays can last for more than a decade.  

In the meantime, a potential problem of unimaginable magnitude may be knocking at the nation’s door soon.  That’s because the TRO issued by the Supreme Court in 2015, which is for an indefinite, unannounced period, means that there will be no new contraceptives in the market in the predictable future.  

Adding to the problem is that the existing registration papers of contraceptive products and devices currently available for sale to the public are expiring by next year.  Upon expiration, those contraceptive products and devices will have to undergo the same protracted and tedious process of registration with the health and drug authorities.  

In other words, there may be no more contraceptive products or devices available in the market by next year.

Under that scenario, the expected geometric increase in the national population will certainly become unmanageable, and poverty alleviation will become a nightmare even for the likes of determined leaders like President Rodrigo Duterte.

In that situation, couples are effectively deprived of their right to choose when to beget children.  In American jurisprudence, that is a constitutional right. 

Likewise, unwanted pregnancies will inevitably ensue, and unwed mothers who want to conceal their situation will resort to abortion, which puts them at risk because abortions of this sort are usually done without proper medical supervision.  Studies indicate that the numbers in this regard may be in the millions.

From the legal perspective, that scenario brought about by the TRO will render an act of Congress useless.

The possibility of this grim scenario taking place prompted many civic leaders and cause-oriented organizations to intervene in the ongoing case in the Supreme Court for the purpose of getting the TRO lifted soonest.

A TRO is supposed to be temporary.  When a TRO is for an indefinite period, it ceases to be temporary, and even becomes oppressive.  

The TRO in question created problems, and will create more problems.  Reason and logic dictate that it’s time to revoke it.