Last Jan. 9, President Rodrigo Duterte signed Executive Order No. 12 entitled, “Attaining and Sustaining ‘Zero Unmet Need for Family Planning’ Through the Strict Implementation of the Responsible Parenthood and Reproductive Health Act, Providing Funds Therefor, and for Other Purposes.”
Immediately, I received a good number of queries on how the EO will impact on the existing Temporary Restraining Order (TRO) on contraceptive implants, as well as the August decision of the Supreme Court (SC) on the Department of Health’s motion to lift the TRO.
As additional backgrounder, the SC’s August decision did not only reject the DOH’s motion but also decided the following among other things:
In processing registration and certification of contraceptives, the Food and Drug Administration (FDA) should give opponents of the RH law opportunities to participate. There used to be no need for the FDA to hold hearings. This body relied on medical literature, medical experts, and scientific research. Even without hearings, I was told by people in the know that registering a particular contraceptive still took more than a year.
Decisions of the FDA are now appealable to the Court of Appeals. Note that the FDA is a regulatory body and its decisions were deemed final. The Courts had nothing to do with the performance of its responsibilities as this office is supposed to decide based on scientific evidence and medical findings. The SC in effect, has changed the nature of the FDA from being a regulatory to quasi-judicial body when it comes to contraceptives. The SC has now given the Courts and lawyers the power to decide on what is basically a medical issue. Given the very slow justice system we have, imagine how much longer it will take before a contraceptive gets registered or certified.
In cases of “reasonable doubt,” cases must be decided in favor of the protection of the life of the unborn. In the more than 20-page decision, protection of the life of the unborn was repeated several times but “protection of wome’s rights” or “protection of mother’s life” was nowhere to be found. It appears that the decision was made just to protect the unborn but not the mothers. This despite the Constitutional guarantee that the life of the mother and the unborn shall be equally protected.
Pending FDA’s implementation of SC orders on developing a registration process that provides for opponent’s participation, the FDA is prohibited from registering and recertifying new contraceptives. The DOH and FDA filed a Motion for Reconsideration as regards the SC’s August decision. Thus, while waiting for the SC’s final ruling, no new registration or certification is being awarded even to private corporations. In the meantime, valid registrations and certifications are lapsing. Come 2018, more than 90% of these would have lapsed.
Concretely, without new registration or recertification, the government and private corporations will not be able to purchase contraceptives and a total stock-out is possible. This means that even those with money to buy will have no supplies to purchase. Access to contraceptives will be zero unless these are brought in as contraband, which is illegal.
These need to be spelled out again because after the news of the EO on Zero Unmet Need broke, not a few rejoiced thinking that problems with the SC TRO and August decision have been solved. Some friends even thought that the EO overrides the SC decision and thus, the RH law can now be fully implemented.
Having the EO is good but it does not, and cannot override the SC TRO and August decision. Let us clarify a few things.
Having the EO is good because it:
1. gives relevant government offices under the Executive such as local government units (LGUs), DoH, DILG, DSWD, Dep-Ed, etc. the marching orders to implement modern family planning (FP).
There have been many problems in implementing FP at the local level because of the SC’s TRO and August ruling. We know of the LGUs’ confusion on how the SC’s orders should be carried out, and what they can, and cannot do. These SC decisions have resulted in a chilling effect among local implementers and resulted in a weak family planning program.
We know that in many places, women were, and are being told that there are no more available stocks of contraceptives in health centers. Some LGUs return contraceptives they received from the DoH. There are places where women are given only TWO PIECES of pills and are asked to come back after two days.
The thing is, we know for a fact that the DoH has stocks that LGUs can easily tap if they want to. With the EO in place, there should no longer be confusion and misunderstanding. LGUs must implement modern family planning.
2. sends a strong signal to the SC that this administration is serious in implementing the RH law and particularly, FP. While the Executive and Judiciary are autonomous from each other, this show of political will hopefully influence our esteemed Justices to rethink their position on the issue. The problematic August decision was promulgated by the SC’s Second Division. The DoH and other interested parties that filed motions asked the SC en banc to take the issue up. Hopefully, this happens and that more Justices will see the August decision as an injustice to millions of Filipino women.
3. outlines important strategies for a more effective and efficient RH law implementation, including participation of civil society organizations (CSO). The EO has concretely ordered government agencies to do strategies that will address unmet need. One of these is partnering with CSOs and NGOs that can fill the gap especially in the provision of contraceptive implants that government is presently prevented from doing; and in reaching marginalized segments of our society, the poor who want or need to use contraceptives.
4. provides for budgets for RH and FP programs. This is quite important since budget is a recurring problem each time that the General Appropriations Fund is being finalized. This also sends a strong signal to those legislators who always try to block or reduce budgets for family planning. This is a most welcome additional push from President Duterte.
Thus, there is no doubt that the EO can positively impact on a better RH law implementation. However, the EO does not erase the problems brought about by the SC TRO and August decision. If the SC will not lift the TRO and reverse its decision, registration of contraceptives will still take a long time (if they get registered at all) because we see the anti-RH challenging every FDA decision in the Court of Appeals. Thus, contraceptive stocks will, in the future, still be problematic.
The EO will only be good while contraceptive supplies last.
Now more than ever, those who believe in family planning should speak in one voice and ask the SC to lift the TRO and reverse its August decision.
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