The Supreme Court ruling on the RH Law: One year later

my Trade Tripper column in this weekend issue of BusinessWorld:

Last Apr. 8 marked a year to the day of the Supreme Court’s ruling in Imbong vs. Ochoa, more commonly known as the “RH Law case.” Quaintly touted then as the “trial of the century,” it paved the way for a ruling with fundamental implications for social policy and jurisprudence here in the Philippines. Albeit in a manner not recognized by many. Indeed, while the RH Law case represented a victory for organized legal planning and cohesive argumentation, it at the same time saw one of the more eccentric examples of lack of focus in legal advocacy.

One has to give credit indeed to the government lawyers who defended the law -- led by then Solicitor General (now Supreme Court Justice) Francis Jardeleza and Assistant Solicitor General (now Solicitor General) Florin Hilbay -- for their well orchestrated, legally coherent, and sophisticatedly reasoned stand.

Conversely, one can only shake one’s head at the mystifying amount of attention given by the Court on “abortifacients” and “the right to life.” This becomes evident when one realizes that the question of life’s beginnings should never have been an issue in the first place. One can see this not only from the Supreme Court’s immediate affirmation that “life begins at conception” but from the very fact that RA 10354 itself (as noted by the Court in its ruling) “clearly mandates that protection be afforded from the moment of fertilization” and “that abortion is a crime.” But to emphasize how surrealistic (or just plain baffling) the whole thing is: whenever somebody now wants to complain about alleged abortifacients, the law they run to for protection is -- you guessed it -- none other than RA 10354.

All the while, the real and true issue of artificial non-abortifacient contraception was inexplicably forgotten.

During the early days of the release of the ruling, the idea was even flouted (evidently as a face-saving measure) that contraception was not really the target of the complaint. But that is wrong. And irresponsible. The reality is that government subsidization of contraception was and has always been the point of the entire case.

Ironically, it took a foreigner to grasp the various significant parts and implications of the ruling. Brian Simboli, writing for Public Discourse, puts it this way:

It is “troubling that while the Court asserts there is no compelling state interest to justify overriding the conscientious objector rights of health providers, it does not similarly conclude that objecting taxpayers should not be burdened coercively with taxes used to purchase contraceptives.”

This is significant because the main point of the RH Law was not that it made contraceptives legal (it has always been legal and cheaply available, cheaper than bottled water), but that it provided huge amounts of tax money to subsidize it.

Think about that when you read about the Department of Health asking for an additional P1.7 billion in its budget this year for the exclusive implementation of the RH Law. Admittedly, not all of it will be used for the purchase of contraceptives.

But note: the latest Global Competitiveness Report indicated tuberculosis as one of the country’s biggest health problems, with the Philippines ranking a low 127 (out of 144 countries) in this area and with a business impact of 114. The Philippines also ranked low in primary education and infrastructure. Why not put the money there?

The foregoing is crucially within the context of another fact that Simboli points out: “[The Supreme Court] did not dismiss a petitioner claim that oral contraceptive use has been correlated with significant health risks.”

But the most damaging portion of the ruling is when the Supreme Court, to use the words of Simboli, “greatly delimits the role of natural law reasoning.”

The ruling, with all due respect, evokes a substantial misappreciation of natural law. It seemed to say that our Constitution (and all our laws) has no philosophy, without history, and has vacuum as context. Had the ruling been within the parameters of the US Constitution, the RH Law ruling may have credence. But even then, the US Supreme Court employed natural law reasoning in a number of cases.

Our Supreme Court, on the other hand, has the power to strike down laws considered done with grave abuse of discretion (a power that the US Supreme Court does not have) and itself knowingly employed the natural law (or reasoning involving or related thereto) in many of its past decisions.

The significance of this, as Simboli points out, is that it renders our Supreme Court with “quite a weak basis for responding to whatever legislative threats may emerge, not just to the pro-life cause, but also to the centrality of the family.”

In short, think about the consequences of the RH ruling the next time the issues of same-sex marriage, divorce, euthanasia, LGBT “rights,” and even abortion comes up.