The Solicitor General in Defense of the Philippines RH Law

[Unofficial transcript of the August 6, 2013 speech of the Solicitor General during Oral Arguments at the Supreme Court re: R.A. No. 10354 or the RH Law1]

Madam Chief Justice, honorable Justices, your honors: the Office of the Solicitor General, on behalf of the House of Representatives, the Senate of the Philippines, and the Executive Department of government. Your honors, the issue before this honorable court is not when life begins. The Constitution, in Article II, Section 122 textually commands the State to protect the life of the unborn from conception - but it does not define the term conception. While delegates to the 1986 Constitutional Commission disagreed as to its meaning, they agreed that Article II, Section 12 was intended to constitutionally bar any congress or any court from ever adopting in this jurisdiction the decision of the United States Supreme Court in the case of Roe v. Wade3. Thus, when life begins is not the issue. The constitutional question at hand is: whether or not the Congress, in the exercise of its police power, enact[ed] the RH Law4 a social legislation that provides women with universal access to effective, legal, non-abortifacient contraceptive drugs and devices, and to services and information thereon. In the last fourteen years the Congress debated reproductive health [(RH)] legislation. Last year, twenty-six years after the advent of Article II, Section 12 and that is a quarter of a century of advances in science and medicine, Congress passed the RH Law. Even then, the Congress, just like the Constitutional Commission, was divided on the question of when life begins. Congress chose not to answer the question. In fact, both houses of Congress rejected proposals to define the term conception. Instead, in common cause with the Constitutional Commission of 1986, the Congress reaffirmed in the strongest, loudest, and clearest terms the anti-abortion and the anti-Roe v. Wade tone and prescription of the Constitution. How did the Congress do this? By inserting two pivotal provisions into the RH Law. First: Section 2 Declaration of Policy: contraceptive drugs and devices should not prevent the implantation of the fertilized ovum as determined by the Food and Drug Administration [(FDA)]5. Second: in Section 4 (a), in language which only medical terms can give pinpoint specificity, Congress required that contraceptive drugs or devices must not be abortifacient that
Unofficial transcript with style edits from the official audio recording (URL: http://www.mediafire.com/download/mc4xt7248t4c2yq/oral_arguments-08-06-13.mp3, accessed August 7, 2013) and annotated by Albert Francis E. Domingo, MD 2 The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. 3 410 U.S. 113 (1973) 4 Republic Act No. 10354, or the Responsible Parenthood and Reproductive Health Act of 2012 5 xxx The State likewise guarantees universal access to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive health care services, methods, devices, supplies which do not prevent the implantation of a fertilized ovum as determined by the Food and Drug Administration (FDA) xxx
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is, they should not induce the prevention of the fertilized ovum to reach and be implanted in the mothers womb upon determination by the Food and Drug Administration6. Thus, plainly: whether life begins at the fertilization of the ovum or upon the implantation of the fertilized ovum in the mothers womb there is no need to judicially resolve this question. Sections 2 and 4 (a) beyond doubt guarantee the strict implementation of the compelling state interest to prohibit abortion. Your honors, medical experts agree that the fertilized ovum journeys from the Fallopian tube to the mothers womb over a period of around seven days7. Thus, Sections 2 and 4 (a) could not be any more explicit. During the medical continuum of seven days that takes place between fertilization up to implantation, anything that prevents the fertilized ovum from reaching and being implanted in the mothers womb is an abortifacient, as determined by the FDA. Your honors, in adopting Sections 2 and 4 (a), the Congress and the Executive made a contemporaneous construction of the meaning of Article II, Section 12 of the Constitution. Their understanding is, in laymans terms, the take of the elected and political branches of government on how to effectuate the States duty to protect the life of the unborn. This is a view informed by the latest available scientific evidence, and decided through that procedure ordained in a representative form of government: a vote of the Congress with the concurrence of the President as head of the executive branch of government. We ask your honors to pay heed to this contemporary interpretation by the people of their Constitution. In the words of this honorable court, the responsibility of upholding the Constitution rests not on the courts alone, but on the legislature and the chief executive as well. All courts cannot but cautiously exercise their power to overturn the solemn declarations of two of the three grand branches of the government.8 Does the Constitution prohibit the manufacture or use of contraceptive drugs and devices? No, not by its text; and no, not by the declared intent of the framers. Women have a constitutional right to use non-abortifacient contraceptives and to receive information and services thereon. This right springs from, among others: the due process right to liberty; the right to privacy, including marital privacy; the right to health; the rights flowing from that bundle of layered and nuanced entitlements, duties and responsibilities under Article II, Section 12 and Article XV9 of the Constitution; and various international conventions which form part of the law of the land, notably the Convention on the Elimination of all forms of Discrimination Against Women [(CEDAW)]. And, we hasten to add, central to the exercise of these rights of women - as is central to the exercise of all rights, is that women have the freedom to enjoy or not to enjoy these rights of their own free and informed choice.

Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the mothers womb or the prevention of the fertilized ovum to reach and be implanted in the mothers womb upon determination of the FDA. 7 Cunningham FG, KJ Leveno, SL Bloom, JC Hauth, DJ Rouse, and CY Spong. (2010). Williams Obstetrics, 23rd ed. New York:McGraw-Hill, pp. 47-50. 8 People v. Vera, G.R. No. L-45685 (November 16, 1937) 9 The Family
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Women have enjoyed the right to use non-abortifacient contraceptives since under the 1935 Constitution. In 1966, Congress, through Republic Act 472910, allowed the use of contraceptive drugs and devices dispensed by a pharmacist upon a doctors prescription. Republic Act 4729 defined contraceptive drug as any medicine used exclusively for the purpose of preventing fertilization of the female ovum11, while contraceptive device was defined as any instrument introduced into the female reproductive system for the primary purpose of preventing conception12. The constitutionality of RA 4729 has never been questioned; no person has been prosecuted for contraception use; and neither has [any] FDA certificate of product registration [for contraceptives] been questioned. We respectfully emphasize that all that the RH law seeks now is to subsidize, for the benefit of the poor, the women, the marginalized, and the vulnerable contraceptives that have been legally available for the past fifty years to their more affluent counterparts. In 1986, the Constitutional Commission debated the constitutional status of contraceptives. Their conclusion: no constitutional ban on contraceptives. We quote Commissioner Bernardo Villegas, no less the sponsor of Article II, Section 12: Delegate/Commissioner Villegas: As regards the issue of what type of contraceptive devices are abortifacient, I think it is a question of fact, and this can be left to the Congress and to the courts to decide. This is a question best left to the [lower] implementing agencies and the courts actually deciding on the facts presented. So I am not in any way making a categorical statement that all these contraceptives are abortifacient. I think it is a matter of fact that has to be established. Your honors, and this is exactly what the Congress did. It debated the factual question of whether or not contraceptive drugs or devices are abortifacient, and the Congress received evidence on this question of fact. The proponents of the RH law submitted expert opinion and testimony to persuade Congress that contraceptive drugs and devices as a class are not abortifacient. The most authoritative of these are 1) the testimony of twenty-two Filipino experts13, and 2) the testimony of the World Health Organization14. This [is a] fact, [that] witnesses submitted testimonials that contraceptives act before fertilization or implantation, and therefore are not abortifacient. The WHO expert opinion especially declared that while all these methods directly or indirectly have effects on the endometrium (which is the mothers womb) that may hypothetically prevent implantation, there is no scientific evidence supporting the possibility that these methods are shown to cause the abortion of an implanted ovum. Opponents of the RH law submitted, with all due respect, in our view meager scientific evidence to the Congress. Our review of the legislative records shows that in the Senate, quotations from a book on the history of contraceptives were cited; and in the House, Representative Rufus
An Act to Regulate the Sale, Dispensation, and/or Distribution of Contraceptive Drugs and Devices approved June 18, 1966 Sec. 2 (a), RA 4729 12 Sec. 2 (b), RA 4729 13 Annex 5 to the Consolidated Comment of Respondents, available at http://sc.judiciary.gov.ph/microsite/rhlaw/osgcomment.php 14 Annexes 1, 2, 3, and 4 to the Consolidated Comment of Respondents, available at http://sc.judiciary.gov.ph/microsite/rhlaw/osg-comment.php
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Rodriguez of Cagayan de Oro cited three medical articles. The literature Petitioner ALFI15 promises only now to make available to this honorable Court are completely evidence aliunde16 to the record upon which Congress made its findings of fact. This evidentiary gap, with all respect, is fatal. No judicial notice can be taken over such questions of medicine as to what are the mechanisms of action of contraceptives. The conclusions made by ALFI are arguments, not matters of unquestionable demonstration. Our points your honors [are] the Congress has made the legislative finding of fact, and it also delegated to the FDA to determine which particular currently available contraceptive meets or [does] not meet the legislative definition of non-abortifacient as laid down in [Section] 4 (a). In a newspaper column on July 28, 2013, the constitutionalist Fr. Joaquin Bernas wrote: [T]hose who argue that contraceptives currently in the market kill life must be able to [point to the precise] contraceptive devices that are abortive. A sweeping generalization is irresponsible.17 Indeed, the Congress has the reserve power to itself determine which contraceptive drugs and devices currently in the market are abortifacient; but to itself undertake this task would have been ill-advised given the workload of the Congress and given the many, many other ills it [has] to address. Your honors, as we speak, there are fifty-nine (59) contraceptive drugs and seven intrauterine devices currently available in the market. Permit us to illustrate. There are fourteen compounds used in these fifty-nine drugs, each with its own chemical properties and mechanisms of action vis--vis contraception. But, each licensed or branded contraceptive may use one or more of these compounds. Of the fifty-nine brands available we have counted at least ten combinations in which these fourteen basic compounds are used, and there are variations in those for each particular brand. Some brands even vary the dose during the twenty-one day period when the contraceptives are used. In short, in reviewing each particular brand prior to certification, the FDA must consider a host of variables. Certainly, Congress chose to act sensibly by delegating this fact-finding to the FDA; certainly, this act of the Congress cannot by any measure be in grave abuse of discretion. As a court in another jurisdiction has said18: When Congress undertakes to act in [areas] fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation, even assuming, arguendo, that judges [with] more [direct] exposure to the problem might make wiser choices. One last point, your honors: who authored Section 4 (a), which Petitioners now task the government to defend? Section 4 (a) was crafted and inserted into the RH Law primarily by
Alliance for the Family Foundation Philippines, Inc. (ALFI) Petitioner in G.R. No. 204934 Aliunde from another source; from elsewhere (Merriam-Webster Online Dictionary, URL: http://www.merriamwebster.com/dictionary/aliunde) 17 Bernas, JG. (2013). Sounding Board: RH Law on center stage. Philippine Daily Inquirer. (URL: http://opinion.inquirer.net/57657/rh-law-on-center-stage, accessed August 7, 2013) 18 Marshall v. United States, 414 U.S. 417 (1974)
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legislators who were opposed to the RH Law. In the Senate, Senate President Juan Ponce Enrile and Majority Leader Vicente Sotto [III], by amendments, defined abortifacient to refer to any drug which prevents or destroys a fertilized ovum from being implanted or destroys a fetus inside the mothers womb. These amendments were accepted by Senator Pia Cayetano as main sponsor of the bill. In the House, Representative Rufus Rodriguez, a stalwart opponent of the bill, proposed the insertion of [Section] 4 (a) by amendment. This was accepted by main sponsor Edcel Lagman of Albay, who asked only to add upon determination of the FDA. Both houses did not need to vote on these amendments. During the [Bicameral Conference Committee], the Senate yielded to the House version. Your honors, that is the history of [Section] 4 (a). And so, the government too, your honors, we also ask - at least on the issue of life: why are the Petitioners even here? Sections 2 and 4 (a) exemplify the kind of consensus born of political process. They embrace an inclusive definition of what is an abortifacient, agreed upon by lawmakers of differing political and societal views. This consensus enabled the political branches to sidestep the divisive issue of when life begins, even as they agreed to protect the life of the unborn. Your honors, more important[ly], this consensus allows the people to affirm, through their Congress [and] their Chief Executive, their universal and unifying commitment against abortion. We respectfully submit that this Court respect as well the outcome of this majoritarian process. In fine, your honors, we ask you at this point: stay your hand, lift the Status Quo Ante Order, and dismiss the Petitions. Deferring to the consensus, at this time, will assure the Congress, the Executive, and the honorable Court the rightful roles in Constitutional interpretation, for such dialogue between the branches is the agar of a vibrant constitutional democracy19. At all events, your honor[s], after the FDA shall have acted, a direct injury plaintiff can seek redress from the courts all the way to this honorable Court. By then, the courts including this honorable Court will be exercising your rightful case and controversy jurisdiction. Thank you, your honors.

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Judicial Review of Congressional Factfinding. (2008). Harvard Law Review. 122(2):786.