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Memorandum Imbong and Juat

Memorandum Imbong and Juat

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Memorandum Imbong and Juat
Memorandum Imbong and Juat

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REPUBLIC OF THE PHILIPPINES SUPREME COURT

MANILA

EN BANC In G.R. No. 204819 and G.R. No. 207111 (with consolidated cases) _________________________________ JAMES M. IMBONG AND LOVELY-ANN CARLOS-IMBONG,
FOR THEMSELVES AND IN BEHALF OF THEIR MINOR CHILDREN,

LUCIA CARLOS IMBONG AND BERNADETTE CARLOS IMBONG, AND THE MAGNIFICAT CHILD DEVELOPMENT CENTER, INC., Petitioners in G.R. No. 204819, and JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS, AND LOTA LAT-GUERRERO Petitioners in G.R. No. 207111, v. HON. EXECUTIVE SECRETARY, ET AL., Respondents. On Writ of Certiorari and Prohibition _______________________________________________________

PETITIONERS’ JOINT MEMORANDUM OF LAW
_______________________________________________________ 15 November 2013 JO AUREA M. IMBONG JAMES M. IMBONG IMBONG & CASTRO LAW OFFICES Unit 304 Señor Ivan de Palacio Building 139 Malakas St., Diliman, Quezon City

Joint Memorandum of Law Imbong, et al. vs. Executive Secretary, et al. Juat, et al. vs. Executive Secretary, et al. G.R. No. 204819 and G.R. No. 207111 (with consolidated cases) -------------------------------------------------------------

2

OUTLINE OF THE MEMORANDUM I. The Constitutional Claims Raised Against the Act are Textually Demonstrable. (p.4) A. B. C. The Breadth of Reproductive Health and Responsible Parenthood under the Act. (p. 4) The Basis of Constitutional Claims Against the Act. (p. 16) There are Textually Demonstrable Contradictions Between the Words and Phrases of the Act and the Words and Phrases of the Constitution. (p. 18) Reproductive Health and Family Planning (p. 18) Family Planning and Pregnancy (p. 22) Social Justice and Family Planning (p. 23) Responsible Parenthood and Founding a Family (p. 25) Responsible Parenthood and Parental Authority (p. 27) II. The Rhetoric of Interests Furthered by the Act is Irreconcilable with Express Constitutional Interests. (p. 28) A. The State has a Textually Demonstrable Constitutional Interest in Reproductive Health and Responsible Parenthood in the Context of Protecting the Maternal Functions of Women and the Reproductive Capacity of Spouses to Found a Family. (p. 29) “Reproductive Health” and “Responsible Parenthood” under the Act Embrace Broad Interests that Frustrate Express Constitutional Claims to Protect the Maternal Functions of Women and the Reproductive Capacity of Spouses to Found a Family, to Promote Health, Educate Youth, and Ensure the Productivity of Future Generations. (p. 31) The Act’s Treatment of Life, Health, Family, and National Life in the Context of its Reproductive Health and Responsible Parenthood is Irreconcilable with the Constitution. (p. 57) Absent a Textual Demonstration of any Constitutional Basis for the Prevention of Pregnancies, Youth Sexual Liberation, Parental and Spousal Alienation, and Population Management, the Act Cannot Claim Any

B.

C.

D.

Joint Memorandum of Law Imbong, et al. vs. Executive Secretary, et al. Juat, et al. vs. Executive Secretary, et al. G.R. No. 204819 and G.R. No. 207111 (with consolidated cases) -------------------------------------------------------------

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Compelling State Interest, Much Less Any Legitimate Interest. (p. 58) III. The Mandates and Sanctions of the Act Disregard the Supremacy of the Constitution by Violating Constitutional Principles and Burdening Constitutional Rights. (p. 59) A. The “Referral Mandate” in Section 23.a.3 Unreasonably Burdens the Religious Freedom of Religious Conscience Objectors. (p. 66) The Narrow Conscience Protection Clause Unreasonably Burdens the Religious Freedom of Religious Conscience Objectors. (p. 69) The Absence of a Conscience Protection Clause for Public Health Care Service Providers Unreasonably Discriminates Against Public Service Workers’ Right to Religious Freedom. (p. 71) The “Information Mandate” in Sec. 23.a.1 Unreasonably Compels Content-Based Speech. (p. 73) The Act Unreasonably Discriminates Against Unorganized Religious Adherents By Allowing a Narrow Religious Accommodation under Section 7. (p. 74) The “Referral Mandate” in Section 7 Unreasonably Burdens the Religious Freedom of Religious Groups. (p. 76) The Act Sanctions Crimes that are Vague. (p. 79) Regarding the criminal violations addressed to a “private health care service provider” under (1) to (6). (p. 86) Regarding the criminal violations for withholding or restricting information, or providing incorrect information under (1), (2), and (3). (p. 88) IV. When a Doctrinal Application of a Constitutional Principle on a Matter of Transcendental Importance is Raised Before this Court, the Absence of an As-applied Case has Not Hindered Judicial Review. (p. 89) Our PRAYER, OUR FUTURE (p. 90)

B.

C.

D. E.

F.

G.

V.

Joint Memorandum of Law Imbong, et al. vs. Executive Secretary, et al. Juat, et al. vs. Executive Secretary, et al. G.R. No. 204819 and G.R. No. 207111 (with consolidated cases) -------------------------------------------------------------

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JOINT MEMORANDUM OF LAW Petitioners in G.R. No 204819 and G.R. No. 207111, by counsel, and to this Honorable Court, most respectfully submit this Joint Memorandum:1 I. THE CONSTITUTIONAL CLAIMS RAISED AGAINST TEXTUALLY DEMONSTRABLE.
THE

ACT

ARE

1. The constitutional claims brought forth by the petitions establish textually demonstrable challenges against the Act. To ascertain these challenges, an outline of the mandates and prohibitions under the Act should provide a good start, followed by a summary of constitutional interests implicated by the Act’s provisions. A. The Breadth of “Reproductive Health” “Responsible Parenthood” under the Act. and

2. On its face, the title of the Act suggests that the State is interested in two aspects of our life as Filipino citizens: our reproductive health and our responsibility as parents. Going further into its text, the Act provides a litany of mandates and policies relating to subjects that encompass reproductive health and responsible parenthood, such as: life, the unborn, children, health, reproductive health, the health professions, sexual relations, women’s rights, women as child-bearers, the family and the planning of our family’s size, relations between spouses, parenthood, religious convictions, human resource, the poor and marginalized, the educational mission for the youth, and the future of our nation. These subjects are treated in the Act as follows: 3. to— • promote openness to life (§ 2, par.7); • encourage child bearing in the context of the mother’s health and available resources (§ 3.f.1); • protect the life of mothers (§ 3.c);
Petitioners respectfully manifest their adoption of the jurisdictional arguments presented in the Memoranda of petitioners in G.R. No. 204819 (ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC., ET AL., V. EXECUTIVE SECRETARY, ET AL.) and G.R. No. 207172 (COUPLES FOR CHRIST FOUNDATION, INC., ET AL., V. EXECUTIVE SECRETARY, ET AL.), with due recognition for their extensive treatment of these preliminary issues.
1

With regard to life, the Act: (a) MANDATES government

Joint Memorandum of Law Imbong, et al. vs. Executive Secretary, et al. Juat, et al. vs. Executive Secretary, et al. G.R. No. 204819 and G.R. No. 207111 (with consolidated cases) -------------------------------------------------------------

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• protect life and welfare of the unborn (§ 2, par. 2; § 3.c); • review death statistics of mothers, fetuses, and infants (§ 8); (b) PROHIBITS government from— • depriving persons to have children for economic reasons (§ 3.f.1); • allowing access to abortifacients (§ 4.s); • purchasing or acquiring emergency contraceptives, postcoital pills and other abortifacients (§ 9, par. 2); • suggesting, influencing, requiring, or causing an applicant for public employment to submit to sterilization as a condition for hiring, promotion, or receiving a benefit (§ 23.c); and • denying public employment due to pregnancy or number of children of the applicant or employee (§ 23.c); and (c) PROHIBITS private employers from— • suggesting, influencing, requiring, or causing an applicant for public employment to submit to sterilization as a condition for hiring, promotion, or receiving a benefit (§ 23.c); and • denying public employment due to pregnancy or number of children of the applicant or employee (§ 23.c). 4. With regard to the unborn, the Act MANDATES government to protect the life, health, and welfare of the unborn (§ 2, par. 2; § 3.c); 5. With regard to children, the Act: (a) MANDATES government to— • ensure safe delivery of healthy children (§ 3.c); • promote rights of children (§ 2, par.2); • promote welfare of children (§ 2);

Joint Memorandum of Law Imbong, et al. vs. Executive Secretary, et al. Juat, et al. vs. Executive Secretary, et al. G.R. No. 204819 and G.R. No. 207111 (with consolidated cases) -------------------------------------------------------------

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• protect children from all forms of neglect and conditions prejudicial to their development (§ 2, par. 4.b); • defend the right of children to assistance, care, and nutrition (§ 2, par. 4.b); • defend the right of minor girls and boys who are already parents to have access to modern family planning methods even without consent of their parents/guardian (§ 7, par. 2); • defend the right of minor girls who have suffered a miscarriage to have access to modern family planning methods even without consent of their parents/guardian (§ 7, par. 2); (b) PROHIBITS government from refusing to provide reproductive health procedures on abused minors for lack of parental/guardian consent when the perpetrator is the parent/guardian (§ 23.a.2.ii); and (c) PROHIBITS private health care service providers from refusing to provide reproductive health procedures on abused minors for lack of parental/guardian consent when the perpetrator is the parent/guardian (§ 23.a.2.ii); 6. With regard government to— to health, the Act: (a) MANDATES

• instill health consciousness (§ 2, par. 2); • study the safety and effectiveness of alternative medicine (§ 3.f.5); • allow Philhealth coverage for serious and life-threatening reproductive health conditions (§ 12); • allow Philhealth coverage for anti-retroviral medicines (§ 12); • provide additional funding for hiring nurses and midwives in isolated, highly populated, and depressed areas (§ 5); • provide equal access to nurses, midwives, and other skilled health professionals for childbirth, newborn care, maternal health care, and emergency obstetric care (§§ 5, 6);

Joint Memorandum of Law Imbong, et al. vs. Executive Secretary, et al. Juat, et al. vs. Executive Secretary, et al. G.R. No. 204819 and G.R. No. 207111 (with consolidated cases) -------------------------------------------------------------

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• protect the health of mothers (§ 3.c); • protect the health of the unborn (§ 3.c); • ensure the health of children (§ 3.c; § 2, par. 4.b); and (b) PROHIBITS public and private health care service providers from— • refusing to provide health care services/information in emergency or serious cases (§ 23.a.3); • refusing to provide health care information in emergency or serious cases (§ 23.a.3); • refusing to refer non-emergency health care service requests to another accessible health facility (§ 23.a.3); • refusing to refer non-emergency health care information requests to another accessible health facility (§ 23.a.3); • refusing to provide quality health care services based on marital status, gender, age, religious conviction, nature of work, or personal circumstances (§ 23.a.3); and • refusing to provide quality health care information based on marital status, gender, age, religious conviction, nature of work, or personal circumstances (§ 23.a.3); 7. With regard to reproductive MANDATES government to— health, the Act: (a)

• study the safety and effectiveness of reproductive health care methods (§ 3.f.5); • establish guidelines on the use of contraceptives (§ 19.c); • equip parents with information on reproductive health towards determining their ideal family size (§ 3.k); • provide additional funding for reproductive health supplies and equipment (§ 16); • establish evidence-based budgeting reproductive health services (§ 8); to provide

Joint Memorandum of Law Imbong, et al. vs. Executive Secretary, et al. Juat, et al. vs. Executive Secretary, et al. G.R. No. 204819 and G.R. No. 207111 (with consolidated cases) -------------------------------------------------------------

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• establish evidence-based programs reproductive health services (§ 8); • eradicate discrimination against the reproductive health rights (§ 2, par. 6);

to

provide of

exercise

• bring reproductive health services within access of persons with disabilities (§ 18); • facilitate the involvement of the private sector in delivering reproductive health care services (§ 19.b.2); (b) PROHIBITS government from— • refusing to provide reproductive health procedures on abused minors for lack of parental/guardian consent when the perpetrator is the parent/guardian (§ 23.a.2.ii); • refusing to provide reproductive health procedures in emergency or serious cases (§ 23.a.2.ii); • failing to get parental/guardian consent before providing elective surgical reproductive health procedures on minors (§ 23.a.2.ii); • requiring parental/guardian consent before providing emergency surgical reproductive health procedures on minors (§ 23.a.2.ii); • restricting or prohibiting the delivery of reproductive health services (§ 23.b); • forcing reproductive health services on another (§ 23.b); • refusing to approve funds for reproductive health services (§ 23.b); • refusing to allocate funds for reproductive health services (§ 23.b); • refusing to release funds for reproductive health services (§ 23.b); • refusing to support reproductive health services (§ 23.b); • hindering the implementation of any reproductive health program (§ 23.b);

Joint Memorandum of Law Imbong, et al. vs. Executive Secretary, et al. Juat, et al. vs. Executive Secretary, et al. G.R. No. 204819 and G.R. No. 207111 (with consolidated cases) -------------------------------------------------------------

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• withholding information on programs/services (§ 23.a.1);

reproductive

health

• restricting dissemination of information on reproductive health programs/services (§ 23.a.1); and • providing incorrect information on reproductive health programs/services (§ 23.a.1). and (c) PROHIBITS private health care service providers from— • withholding information on reproductive health programs/services even outside an emergency or serious situation (§ 23.a.1); • restricting the dissemination of information on reproductive health programs/services even outside an emergency or serious situation (§ 23.a.1); • providing incorrect information on reproductive health programs/services even outside an emergency or serious situation (§ 23.a.1); • refusing to provide health care services/information in emergency or serious cases, regardless of conscience objections (§ 23.a.3); • refusing to refer non-emergency/non-serious health care service/information requests to another accessible health facility, regardless of conscience objections (§ 23.a.1); • refusing to provide quality health care service/information based on marital status, gender, age, religious conviction, nature of work, or personal circumstances (§ 23.a.1); • refusing to provide reproductive health procedures on abused minors for lack of parental/guardian consent when the perpetrator is the parent/guardian (§ 23.a.2.ii); • refusing to provide reproductive health procedures to persons of legal age (§ 23.a.2.ii); and • failing to get parental/guardian consent before providing elective surgical reproductive health procedures on minors (§ 23.a.2.ii).

Joint Memorandum of Law Imbong, et al. vs. Executive Secretary, et al. Juat, et al. vs. Executive Secretary, et al. G.R. No. 204819 and G.R. No. 207111 (with consolidated cases) -------------------------------------------------------------

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8. With regard to health professions, the Act MANDATES government to— • provide additional funding for hiring nurses and midwives in isolated, highly populated, and depressed areas (§ 5); • provide equal access to nurses, midwives, and other skilled health professionals for childbirth, newborn care, maternal health care, and emergency obstetric care (§ 5; § 6); and • train Barangay Health Workers to promote reproductive health (§ 16). 9. With regard to sexual relations, the Act MANDATES government to defend the right of individuals to have a sex life that is responsible, safe, consensual, and satisfying (§ 4.p); 10. With regard to women’s rights, the Act MANDATES government to— • Promote women’s empowerment (§ 2, par. 3; § 3.m); • Promote women’s dignity (§ 2, par. 3); • Advance women’s rights (§ 2, par. 3) • Treat women humanely (§ 3.j); • Promote gender equality and equity (§ 2, par. 3; § 3.m); and • Defend the right of a woman to receive non-judgmental and humane treatment for post-abortion complications (§ 3.j). • Encourage child bearing in the context of the woman’s health and available resources (§ 3.f.1); • Defend the right of couples to found a family with due consideration for the woman’s health (§ 3.f.1); • Defend the right of a minor woman who is not a parent but has had a miscarriage, to have access to modern family planning methods (§ 7, par. 2).

Joint Memorandum of Law Imbong, et al. vs. Executive Secretary, et al. Juat, et al. vs. Executive Secretary, et al. G.R. No. 204819 and G.R. No. 207111 (with consolidated cases) -------------------------------------------------------------

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11. With regard government to—

to

the

family,

the

Act

MANDATES

• promote and strengthen the family (§ 2, par. 2); • defend the right of families to a family living wage and income (§ 2, par. 4.c); • defend the right of couples to found a family with due consideration for the woman’s health and the resources available to the couple (§ 3.f.1); and • defend the right of couples to have children even if they are economically disadvantaged (§ 3.f.1). 12. With regard to planning our family size, the Act: (a) MANDATES government to— • defend the right of families to determine its ideal size (§ 3.k); • require marriage license applicants to receive government instruction and information on family planning (§§ 2, par. 4; 15); • defend the right of minor girls and boys who are already parents to have access to modern family planning methods even without consent of their parents/guardian (§ 7, par. 2); • defend the right of minor girls who have suffered a miscarriage to have access to modern family planning methods even without consent of their parents/guardian (§ 7, par. 2); • procure family planning supplies for the whole country (§ 10); • distribute family planning supplies to Local Government Units (§ 10); • include family planning products and supplies in the National Drug Formulary Essential Drugs List (§ 9); • require national hospitals to purchase family planning products listed in the Essential Drugs List (§ 9, par. 2);

Joint Memorandum of Law Imbong, et al. vs. Executive Secretary, et al. Juat, et al. vs. Executive Secretary, et al. G.R. No. 204819 and G.R. No. 207111 (with consolidated cases) -------------------------------------------------------------

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• equip parents with information on family planning towards determining their ideal family size (§ 3.k); (b) PROHIBITS government from— • restricting or prohibiting the delivery of family planning services (§ 23.b); • forcing family planning services on another (§ 23.b); • refusing to approve funds for family planning services (§ 23.b); • refusing to allocate funds for family planning services (§ 23.b); • refusing to release funds for family planning services (§ 23.b); • refusing to support family planning services (§ 23.b); • hindering the implementation of any family planning program (§ 23.b); • refusing to provide modern family planning method services in emergency or serious cases (§ 7); • refusing to provide modern family planning method services to paying patients (§ 7); and • suggesting, influencing, requiring, or causing an applicant to use or not use a modern family planning method as a condition for hiring, promotion, or receiving a benefit (§ 23.c). (c) MANDATES private health facilities to— • provide modern family planning method services to all persons in emergency or serious cases (§ 7); • refer non-emergency/non-serious modern family planning method requests of any person to another accessible health facility (§ 7); • provide modern family planning method services to paying patients (§ 7);

Joint Memorandum of Law Imbong, et al. vs. Executive Secretary, et al. Juat, et al. vs. Executive Secretary, et al. G.R. No. 204819 and G.R. No. 207111 (with consolidated cases) -------------------------------------------------------------

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and (d) PROHIBITS private persons from suggesting, influencing, requiring, or causing an applicant to use or not use a modern family planning method as a condition for hiring, promotion, or receiving a benefit (§ 23.e). 13. With regard to spousal relations, the Act PROHIBITS public and private health care service providers from requiring spousal consent before providing reproductive health procedures on demand of a patient-spouse (§ 23.a.2.i). 14. With regard to parenthood, the Act: (a) MANDATES government to— • require marriage license applicants to receive government instruction and information on responsible parenthood (§§ 2, par. 4; 15); • defend the right of parents to prevent their minor children from having access to modern methods of family planning, except when the minor is already a parent or has had a miscarriage (§ 7, par. 2). • equip parents with information on reproductive health and family planning towards determining their ideal family size (§ 3.k); and • respect parental authority over their minor children in deciding on elective surgical procedures (§ 23.a.2.ii). • integrate responsible parenthood education in the public school curriculum (§ 14); and (b) MANDATES private health care service providers to require parental consent before providing elective surgical reproductive health procedures on minors (§ 23.a.2.ii); 15. With regard government to— to conscience, the Act MANDATES

• defend the right of couples to found a family based on religious convictions (§ 2, par. 4.c); • defend the right of conscience objectors not to provide health care services (§ 23.a.3);

Joint Memorandum of Law Imbong, et al. vs. Executive Secretary, et al. Juat, et al. vs. Executive Secretary, et al. G.R. No. 204819 and G.R. No. 207111 (with consolidated cases) -------------------------------------------------------------

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• defend the right of religious groups to own and operate hospitals that do not provide modern family planning method services (§ 7); • defend the right of hospitals owned and operated by religious groups not to provide modern family planning method services (§ 7); and • defend the right of non-maternity hospitals not to provide modern family planning method services (§ 7). 16. With regard to human resource, the Act: (a) MANDATES government to preserve human resource (§ 3.c); and (b) PROHIBITS government from establishing population targets (§ 3.l). 17. With regard to the poor and marginalized, the Act MANDATES government to— • direct public resources to prioritize the poor and marginalized as recipients of free reproductive health information (§ 11; § 2, par. 5; § 3.g); • direct public resources to prioritize the poor and marginalized as recipients of free reproductive health services (§ 11; § 2, par. 5; § 3.g); • direct public resources to prioritize the poor and marginalized as recipients of free reproductive health supplies (§ 11; § 2, par. 5; § 3.g); • direct public resources to prioritize the poor and marginalized as recipients of free family planning methods (§ 11; § 2, par. 5; § 3.g); • facilitate the involvement of the private sector in producing, distributing, and delivering reproductive health supplies to make them affordable to ordinary citizens (§ 19.b.2); • facilitate the involvement of the private sector in producing, distributing, and delivering family planning supplies to make them affordable to ordinary citizens (§ 19.b.2); • promote participation of the private sector in reproductive health programs for the poor and marginalized (§ 3.i);

Joint Memorandum of Law Imbong, et al. vs. Executive Secretary, et al. Juat, et al. vs. Executive Secretary, et al. G.R. No. 204819 and G.R. No. 207111 (with consolidated cases) -------------------------------------------------------------

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• promote participation of the private sector in population and development programs for the poor and marginalized (§ 3.i); • provide modern family planning method services for poor and marginalized couples (§ 7); and • provide fertility services and supplies for poor and marginalized couples who desire to have children (§ 7). 18. With regard to the educational mission for the youth, the Act MANDATES government to— • guide and counsel children on reproductive health (§ 4.q.4); • provide reproductive health education to adolescents in public schools (§ 14); • integrate reproductive health education with values formation (§ 14); • integrate reproductive health education in preventing discrimination, sexual violence, and teen pregnancy (§ 14); • integrate reproductive health education in adolescent development (§ 14); • integrate reproductive health with women’s rights and children’s rights (§ 14); • integrate reproductive health with responsible teenage behavior (§ 14); • integrate reproductive development (§ 14); and health with gender and

• integrate reproductive health with responsible parenthood (§ 14). 19. With regard to the future of the nation, the Act MANDATES government to— • Allocate and use resources equitably (§ 3.f.2); • Study and analyze demographic trends (§ 3.f.4); and

Joint Memorandum of Law Imbong, et al. vs. Executive Secretary, et al. Juat, et al. vs. Executive Secretary, et al. G.R. No. 204819 and G.R. No. 207111 (with consolidated cases) -------------------------------------------------------------

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• Create an environment conducive to having a long, healthy and productive life for present and future generations (§ 4.aa). 20. The foregoing outline provides an overview of the powers granted by the Act upon government concerning reproductive health and responsible parenthood, as it establishes mandates and prohibitions directed upon government itself, and regulates the actions of private persons a well. If the purpose of the petitions is to establish a textually demonstrable constitutional challenge against the Act, these challenges should revolve around the Act’s mandates and prohibitions affecting particular constitutional claims. B. The Basis of Constitutional Claims Against the Act.

21. What then are the constitutional claims raised against the particular mandates and prohibitions provided in the Act? G.R. No. 204819 begins with a recitation of the Preamble as the source, purpose, and objective behind all forms of lawmaking and government action. While the Preamble cannot be a source of power or right for any department of government, the same cannot be easily said of a constitutional claim based on those “great national purposes and aims”2 for which reason the Constitution was promulgated in the first place. And what are those purposes and aims? Nowhere else can that question be categorically answered by the Constitution, but in the Preamble itself, thus: One: To “build a just and humane society;” and Two: To “establish a government” that shall: • embody the ideals and aspirations of the sovereign Filipino people; • promote the common good, conserve and develop our patrimony; and • secure to the Filipino people and the people’s posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace. (Preamble) 22.
2

If the Act should be held consistent with the Constitution,

See RECORD OF THE CONSTITUTIONAL COMMISSION, 10 June 1986 Session, Resolution No. 72: RESOLUTION PROPOSING TO ADOPT A PREAMBLE TO THE CONSTITUTION, approved on 11 June 1986 Session.

Joint Memorandum of Law Imbong, et al. vs. Executive Secretary, et al. Juat, et al. vs. Executive Secretary, et al. G.R. No. 204819 and G.R. No. 207111 (with consolidated cases) -------------------------------------------------------------

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there must be no difficulty reading the text of the Act in line with those purposes and aims established in the Preamble. 23. Aside from the Preamble, the petitions also raise textually demonstrable constitutional claims relating to specific state interests under various parts of the Constitution, such as the constitutional mandates for the State to: protect life (Art. II, § 5); protect the life of mothers and the unborn (Art. II, § 12); recognize the sanctity of family life (Art. II, § 12); protect and strengthen the family and marriage (Art. II, § 12; Art. XV, §§ 1-2); defend the founding of a family in accordance with the religious conviction of spouses and the demands of responsible parenthood (Art. XV, § 3.1); support parents in directing the moral and civic development of their child (Art. II, § 12); recognize the role of youth in nation building (Art. II, § 13); protect the physical, moral, spiritual, intellectual, and social wellbeing of youth (Art. II, § 13); affirm the economic force of human labor (Art. II, § 18); secure life, liberty, and property under due process (Art. III, § 1); respect freedom of speech, expression, and association (Art. III, § 4); respect freedom of religion (Art. III, § 5); give highest priority to enact laws that protect human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth (Art. XIII, § 1); for the State to establish an education system relevant to the needs of the people (Art. XIV, § 2.1); encourage learning programs that respond to community needs (Art. XIV, § 2.4); provide training in civics and vocational efficiency (Art. XIV, § 5); prioritize research and development, invention, innovation, science and technology education and services to support the country’s productive systems (Art. XIV, § 10); promote physical education to foster self-discipline and a healthy citizenry (Art. XIV, § 19.1); inculcate patriotism, nationalism, love of humanity, respect for human rights, responsible citizenship, ethical and spiritual values, moral character and personal discipline (Art. XIV, § 2.3); protect the health of the people (Art. II, § 15); protect maternal functions of women (Art. XIII, § 14); allow freedom of religion and speech (Art. III, §§ 4, 5); guarantee due process and equal protection of law (Art. III, § 1). 24. The point of this discussion is that the constitutional claims raised in the petitions are real and textually demonstrable. The constitutional claims are real because they make categorical reference to specific provisions of the Constitution. The constitutional claims are textually demonstrable because the provisions cited are clear and not unrelated to the subjects of the Act.

Joint Memorandum of Law Imbong, et al. vs. Executive Secretary, et al. Juat, et al. vs. Executive Secretary, et al. G.R. No. 204819 and G.R. No. 207111 (with consolidated cases) -------------------------------------------------------------

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C.

THERE ARE TEXTUALLY DEMONSTRABLE CONTRADICTIONS BETWEEN THE WORDS AND PHRASES OF THE ACT AND THE WORDS AND PHRASES OF THE CONSTITUTION.

25. Clearly, the policies and mandates of the Act as outlined above are couched in words and phrases that are not unfamiliar to our common understanding. The term “reproductive health” suggests that the health of a person’s reproductive system is a matter of interest such as to require State action. The term “responsible parenthood” likewise suggests that parenthood demands some degree of responsibility such as to require State intervention. 26. However, a textual analysis of the words and phrases of the Act coupled with a plain reading of relevant constitutional provisions, reveal how our common understanding of “reproductive health” and “responsible parenthood” avoids a reasonable comprehension of the constitutional basis of the entire Act itself.3 Regarding Reproductive Health and Family Planning 27. Since the Act speaks of reproductive health in its title, this subject necessarily deals with life and the importance of reproductive health in bringing about life. The Act affirms this as it promotes openness to life (§ 2, par.7) by encouraging child-bearing and addressing infertility (§ 3.f.1; § 7), mandating protection of the unborn (§ 2, par. 2; § 3.c), prohibiting abortifacient contraceptives (§ 4.s; § 9, par. 2); and prohibiting coercive sterilization (§ 23.c). 28. However, while the Act professes to support a culture of life, it proceeds to promote a program wherein families are able to “plan”, “space”, and “time” the bearing of children. The Act defines this program as “family planning” (§ 4.e) and refers to it thirty-one times throughout the Act. If it is referred to 31 times in an Act that only has 30 sections, it must be a very significant concept. But what does it have to do with reproductive health or responsible parenthood for it to be mentioned 31 times in the Act? 29. At the onset, the Act describes “reproductive health” as being in a state of having complete use of one’s reproductive capacities in relation to one’s physical, mental, and social well-being (§ 4.p). And then it describes what kind of “care” the Act supplies in order for a person to achieve “reproductive health”. Thus, the Act proceeds to describe “reproductive health care” as any good or
This is not the first time the Court looked beyond the plain text of a subject to find its true meaning. (Government Service Insurance System v. Commission on Audit, G.R. No. 162372, October 19, 2011, citing Conte v. Commission on Audit, 332 Phil. 20, 1996)
3

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service that contributes to achieving the state of complete use of one’s reproductive capacities (§ 4.q). The Act then enumerates the elements of reproductive health care that contribute to the attainment of reproductive health, the first of which is the provision of “family planning” information and services (§ 4.q.1). What kind of information and service does “family planning” involve? It involves the use of natural (§ 3.m) and modern (§ 3.l) methods in order to “plan” a pregnancy. 30. Unfortunately, the Act does not describe how a particular family planning method can be used to “plan” a pregnancy. Common sense would lead us to think that to “plan” entails some intellectual process of arranging events or courses of action—a function only a thinking human person can execute. What is it then that allows a particular family planning method to “plan” a pregnancy? The Act gives us an idea when it defines “natural family planning” as a method used to “plan or prevent pregnancy” (§ 3.m). The next question that should come to mind is: if the Act describes “natural family planning” as a method to plan or prevent pregnancy, why is it that the Act does not describe “modern family planning” as a similar method to plan or prevent pregnancy? Does it mean that the Act provides a distinction between modern family planning and natural family planning methods such that modern family planning methods do not operate to prevent pregnancy, but rather only “plan” a pregnancy? The answer is no. Because no family planning method, whether natural or modern, is used to cause a pregnancy. To say that a family planning method not only prevents a pregnancy but also causes a pregnancy is a contradiction in terms and in operation. Why is that? Because pregnancy plainly results from the complete sexual intercourse of a male and a female of fertile capacities, based on the intrinsic procreative capacities. Thus, to cause a pregnancy, all that is required is for a man and a woman of fertile capacity to complete their sexual intercourse. In other words, complete sexual intercourse between a fertile man and a fertile woman is itself the “method” to cause a pregnancy. It may not be the only method to achieve a pregnancy (in-vitro fertilization, for example), but it is the only natural method involving the complete physical participation of two persons of the opposite sex. Any other action can be said to lead away from a pregnancy such as incomplete intercourse (withdrawal method) or frustrated intercourse (condom use, infertility of the woman through hormonal contraceptives). Therefore, it follows that any family planning method that may be employed by either the male or female in the course of their intercourse, results in no other practical event but to prevent pregnancy.4
The Act’s reference to “modern” methods of family planning as opposed to “artificial” or “contraceptive” reveals the legislature’s attempt to redefine (or “repackage”) the textual presentation of contraceptives, such that these “modern”
4

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31. As defined in the Act, the essence of a family planning program or method is that it is a means to plan a pregnancy or space childbirths (§ 4.e). While there may be an underlying mental or moral motivation to “plan” or delay pregnancy, it does not change the operative act of the family planning method employed, which is simply to prevent or avoid pregnancy. In fact, nowhere in the Act is there a corollary definition of family planning that suggests something other than the prevention of pregnancy. 32. Why is it important to establish the family planning -pregnancy prevention link? Because family planning is a concept that operates not only within the policy of reproductive health, but likewise in the policy of responsible parenthood (§ 4.v). As regards responsible parenthood, the Act consistently refers to “spacing” and “timing” as a means to achieve the family’s “desired number of children”, such that a responsible parent is one who understands the need to prevent pregnancy as a means to achieve the correct spacing and ideal number of pregnancies. 33. The link between reproductive health, responsible parenthood, family planning, and pregnancy prevention sets the backdrop for a textually demonstrable constitutional challenge against the Act, considering that the Constitution’s policy on life and its attitude towards family life are easily defeated by the Act’s rhetoric of being “open to life” through the provision of methods that operate in no other way but to prevent pregnancy. 34. On this point, the Constitution cannot be any clearer when it mandates the State to: protect unborn life from conception (Art. II, § 12); value the dignity of every person (Art. II, § 11; Art. XIII, § 1); recognize the economic potential of Filipino labor (Art. II, § 18; Art. XII, § 12; Art. XIV, § 2.5); sustain the productive systems of the country (Art. XIV, § 10); affirm the economic force of human labor (Art. II, § 18); recognize the sanctity of family life (Art. II, § 12);
methods of family planning are made acceptable simply because they are “modern” methods. This play in semantics is not trivial as it avoids the unchanging fact that contraceptives, being non-medicinal products, have as its primary and operational objective to interfere with the natural physiologic fertility functions of a person’s reproductive system. The mere fact that human nature allows a woman’s body to have a non-ovulatory period does not mean that this same natural phenomenon can be induced by artificial means. No one will deny the fact that death from natural causes is natural and is a common occurrence. But this biological fact does not justify the act of anticipating or inducing the same natural phenomenon by deliberately terminating one’s own or another’s life, even by means that duplicate nature’s processes. This, in essence, is the substantial distinction between natural and artificial methods of family planning which the Act disregards.

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protect and strengthen the family (Art. II, § 12; Art. XV, § 1); defend the founding of a family in accordance with the religious conviction of spouses and the demands of responsible parenthood (Art. XV, § 3.1); recognize the role of youth in nation building (Art. II, § 13); and protect working women and their maternal functions (Art. XIII, § 14). What do these provisions reveal? They reveal that— • The Constitution sees life in the unborn from conception; • The Constitution protects that life as well as the maternal function of the mother that allows the existence of that life; • The Constitution values that life with its inherent dignity and its potential to be an economic force called human labor; • The Constitution values the sole institution that allows the creation and sustenance of that human life: the family; • The Constitution looks to the further development of that life as the future of youth for nation building; 35. In stark contrast are the mandates of the Act to: encourage child bearing conditioned within the context of the family’s resources (§ 3.f.1); allow minor parents access to modern family planning methods without parental consent (§ 7, par. 2); allow a minor girl access to family planning methods without parental consent if she has suffered a miscarriage (§ 7, par. 2); require government education on family planning as a condition for the issuance of a marriage license (§ 2, par. 4; § 15); procure family planning supplies for the whole country (§ 10); equip parents with information on family planning (§ 3.k); and penalize acts that prohibit, hinder, or restrict access to family planning information, services, and supplies (§ 23.b). 36. Can the Act have it both ways? Can it promote openness to life and at the same time put in place a “family planning” program that has no other purpose but to prevent pregnancy? How is it possible for the Act to put in place a national policy on family planning when the Constitution makes no mention of any policy or interest for the prevention of pregnancies or much less the “planning” of families? 37. It bears to stress that the Constitution is not neutral or passive when it comes to the family, as it categorically demands the State to “protect and strengthen” it with particular interest in recognizing the right of couples to “found” a family. If the Constitution recognizes the right of couples to found a family (Art. XV, § 3.1) without reference to any “planning”, “spacing”, or “timing” requirements, is it not a contradiction for the Act to promote a

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subsidized family planning program that has the potential to cause the prevention of pregnancies in a massive scale? 38. The unreasonableness and contradiction surrounding the Act’s policy of being “open to life” are a strong indication that something else is at work here: that the state’s interest is not just to encourage couples to plan, space, and time childbearing, but also to cause the prevention of pregnancies in a massive scale. Regarding Family Planning and Pregnancy 39. Another example of a textually demonstrable constitutional challenge against the Act is its persistent treatment of pregnancy as if it were a disease or illness to be cured or avoided in such scale and breadth as if it were a matter of public policy to do so. 40. The Act defines “reproductive health” as being in a state of complete physical, mental, and social wellbeing in all matters to the reproductive capacities of the person (§ 4.p). To achieve this state of health, the Act mandates government to procure family planning supplies for the whole country (§ 10) to be distributed to all Local Government Units (§ 10) and to include family planning products and supplies in the National Drug Formulary Essential Drugs List (§ 9) to be purchased by national hospitals all over the country (§ 9, par. 2). 41. If family planning supplies are to find its way in the National Drug Formulary (NDF), the Act shall have placed pregnancyprevention methods on the same level as drugs and medicines which all public health facilities are mandated to procure and dispense as needed. It bears to stress that when the Department of Health places a particular drug or product in the NDF Essential Drugs List, the selection of such product is made with due regard to its relevance to an ongoing public health concern, as well as its efficacy to treat the sickness, disease, infirmity, or illness which it is meant to address. 42. If there is nothing wrong with classifying pregnancyprevention methods as part of “basic health care” (§ 3.d) or equating it with life-saving drugs and medicines (§ 9), then what do we make of the position of the Constitution as regards protecting and respecting the maternal functions of women (Art. XIII, § 14) and their right to found a family (Art. XV, § 3.1)? And nothing is more definitive of the maternal function of a woman than her natural ability for childbearing, which happens to be the target of the Act’s “family planning” mandate. 43. The unreasonableness and contradiction surrounding the Act’s “reproductive health” policy are a strong indication that

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something else is at work here: that the state’s interest is not just to facilitate access to modern family planning methods through the public health care system, but also to do so for the sake of redefining the concept of “health” to include pregnancy prevention even if pregnancy and childbearing are not a disease or illness.5 Regarding Social Justice and Family Planning 44. Another example of a textually demonstrable constitutional challenge against the Act is its “social justice” mandate of prioritizing the poor and marginalized as recipients of free family planning information, methods, and supplies. This mandate is achieved by the direct use of public resources to purchase, procure, and distribute free reproductive health information, methods, supplies, and services for the poor (§ 11; § 2, par. 5; § 3.g) from the national level to the local government level, and down to the barangay level (§ 16). As if this were not enough, the Act proceeds to mandate government to harness the participation of the private sector to act as a producer, distributor, and dispenser of family planning supplies to the poor and marginalized (§ 19.b.2). 45. Considering that no modern family planning method operates to facilitate a pregnancy, it goes without saying that this massive delivery of free pregnancy-prevention methods and supplies to the poor and marginalized reveals a clear intention to prevent the poor and marginalized women from having more children than they already have—or not to have children at all. 46. Clearly, the family planning subsidy for the poor is not merely meant to solve an alleged “equal access” problem as the Act justifies it, which begs the question: access to what? Insofar as the Act is concerned, it refers to access to a method that reduces the possibility of having another pregnant woman among the poor and marginalized—which translates to a lesser number of poor and marginalized people. 47. If that is how the Act defines “social service” and “equal opportunity” for the poor, what then do we make of the following express Constitutional provisions that demand from the State a positive, creative, and productive approach in alleviating poverty and
It is worth stating that the government’s “11 maternal deaths per day” mantra remains to be a mystery as it has failed to demonstrate the manner by which this “fact” was confirmed by an allegedly reputable international study. Nowhere in the records of these cases do we see an offer made by government to prove that the basis of this mantra reveals an authentic public health concern. If rhetoric and mantras are sufficient to establish public policy in a scale and breadth as the Act is proposing, then there is nothing that Congress cannot do.
5

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harnessing the economic potential of every Filipino, rather than reducing their numbers?: • Constitutional mandate for the State to serve the people (Art. II, § 4); • Constitutional mandate for the State to provide adequate social services (Art. II, § 9); • Constitutional mandate for the State to increase production of goods and services (Art. XII, § 1); • Constitutional mandate for the State to provide decent housing for the homeless in urban centers (Art. XIII, § 9); • Constitutional mandate for the State to promote productivity of citizens for nation-building (Art. XII, § 14); • Constitutional mandate for the State to create economic opportunities (Art. XIII, § 2); • Constitutional recognition of the economic potential of Filipino labor (Art. II, § 18; Art. XII, § 12; Art. XIV, § 2.5); • Constitutional mandate for the State to promote full employment (Art. II, § 9, Art. XII, § 1, Art. XIII, § 3); • Constitutional mandate for the State to allow labor to have a just share in the fruits of production (Art. XIII, § 3); • Constitutional mandate for the State to accelerate social progress (Art. II, § 17); • Constitutional mandate for the State to establish an economic order conducive to the equitable distribution of opportunity, income, and wealth (Art. XII, § 1); • Constitutional mandate for the State to prioritize equal distribution of wealth and political power (Art. XIII, § 1); • Constitutional mandate for the State to prioritize the reduction of socio-economic-political inequalities (Art. XIII, § 1); • Constitutional mandate for the State to provide quality education at all levels to all citizens (Art. XIV, § 1);

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• Constitutional mandate for the State to sustain the productive systems of the country (Art. XIV, § 10); • Constitutional mandate for the State to promote productivity in all regions of the country (Art. X, § 14)? 48. The unreasonableness and contradiction surrounding the social justice motivation of the Act’s pro-poor contraceptive program are a strong indication that something else is at work here: that the state’s interest is not just about giving the poor equal access to family planning methods they cannot otherwise afford, but also to encourage them to actually use these pregnancy-preventing mechanisms to arrest their childbearing potentials6 and eventually control population growth.7 Regarding Responsible Parenthood and Founding a Family 49. Another example of a textually demonstrable constitutional challenge against the Act is the Act’s commitment to promote “responsible parenthood” by mandating the State to: promote and strengthen the family (§ 2, par. 2); defend the right of couples to found a family and have children (§ 3.f.1); defend the right of families to determine its ideal size (§ 3.k); equip parents with information on family planning towards determining their ideal family size (§ 3.k); and require persons to receive government instruction and information on responsible parenthood as a precondition for a civil marriage license (§§ 2, par. 4; 15).
While the Act professes that the promotion of reproductive health does not intend the “mitigation” of the population growth rate (§ 3.l), it expressly directs the implementation of its family planning information program with priority towards Filipino women of “reproductive age” (§ 4.q.1) with due regard to communities in “highly populated areas” (§§ 5; 6), and with a categorical policy directive to consider their reproductive right “not to have children” (§ 4.s). Curiously, aside from promoting family planning methods such as contraceptives (§ 19.c), the Act also does not prohibit the provision of irreversible methods of infertility procedures such as ligation and vasectomy, but merely ensures that these “modern methods of family planning” are not forced upon anyone (§§ 23.b; 23.c). 7 In 1974, United States Secretary of State Henry Kissinger issued a confidential report to the US President outlining the need for the United States Government to implement a covert population control strategy directed against thirteen (13) “third-world” nations that posed a serious threat to the economic interests of the United States—the Philippines being one of them. As stated in the report: “The great necessity is to convince the population [of Less Developed Countries/LDC’s] that it is to their individual and national interest to have, on the average, only three, and then only two children,” (p. 102) with a warning that increasing populations in these developing countries threatened U.S. strategic, economic, and military interests. (NATIONAL SECURITY STUDY MEMORANDUM 200NSSM 200, subtitled "Implications of Worldwide Population Growth for U.S. Security and Overseas Interests," at http://www.lifesitenews.com/waronfamilydocs/nssm200/nssm200.pdf.
6

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50. Curiously, the Act describes responsible parenthood in relation to his/her ability to “respond to the needs and aspirations” of the family. Unfortunately, the Act does not define what these particular needs and aspirations are. While the Act does not provide some qualitative standard on how a responsible parent can “respond to the needs and aspirations of the family”, it does provide a quantitative benchmark, that is: the ability of parents to space and time the number of their children (§ 4.v). Thus, as the act would have it, a “responsible parent” is one who knows when and how to achieve a desired family size—and not just any family size, but a particular family size that satisfies the expectations of the State. And what is that expectation? The expectation is for responsible parents to “bring forth” only those children they can “raise in a truly humane way” (§ 2, par. 11). 51. The constitutional claim lies against the objective of the Act to impose a certain standard of responsible parenthood before a family is even founded. This intention is made clearer as the Act mandates every parent to understand and assess his/her psychological, physical, socio-cultural, and economic concerns in the course of founding a family (§ 4.v; § 3.f.1). 52. This is in stark contrast to the position of the Constitution giving explicit deference to the right of spouses to found a family with a declaratory reference to two elements: that they found their families in accordance with their religious convictions and the demands of responsible parenthood (Constitution, Art. XV, § 3.1). 53. And this is where a textually demonstrable constitutional claim arises: can the Act provide a definition of responsible parenthood that substantially qualifies the already unqualified deference accorded by the Constitution upon the same subject? If the State is mandated to defend the right of parents to found a family in accordance with their religious convictions and responsible parenthood, is the State allowed to engage such right by defining with specificity the quality of responsibility expected of parents? Is the State defending the right of spouses to found a family when it lays down state policy on how that right is to be exercised? 54. The unreasonableness and contradiction surrounding the Act’s responsible parenthood policy are a strong indication that something else is at work here: that the state’s interest is not just to encourage a heightened awareness for the responsibility of parents in founding a family, but also to establish a certain degree of parental responsibility—an expectation so high that it effectively defeats the natural inclination of couples to found a family in the first place.

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Regarding Responsible Parenthood and Parental Authority 55. Another textually demonstrable constitutional challenge against the Act is its responsible parenthood mandate that gives scant consideration for the duty and limitations already imposed by the Constitution upon the State, such as: • the duty of the State to support the right of parents to direct their child’s moral and civic development (Constitution, Art. XV, § 3.1); • the duty of the State to respect the right of parents who choose to rear their children outside the public school system (Constitution, Art. XIV, § 2.2); and • the duty of the State to support the right of parents to direct the religious instruction of their child even within the public school system (Constitution, Art. XIV, § 3.3). 56. In no unclear terms, these constitutional declarations reveal the strict deference and respect demanded of the State when it comes to the fundamental, natural, and primary right of parents to direct their children’s moral, religious, and civic upbringing. 57. In contrast, the Act establishes a national policy on parental authority as it mandates public and private health facilities to— • disregard parental rights in case their minor child who requests for information on modern family planning is already a parent himself/herself; • disregard parental rights in case their minor child who requests for access to modern family planning methods is already a parent himself/herself; or • disregard parental rights in case their female minor child who requests for access to modern family planning methods has suffered a miscarriage (§ 7, par. 2). 58. Thus, as the Act would have it, the mere fact that a minor girl or boy is already a parent (or the minor girl has suffered a miscarriage) trumps the right of their parents to direct their upbringing, as well as the duty of the State to defend such right.

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59. And this is where a constitutional claim arises: can the State qualify its constitutional duty to respect parental rights by means of a law? If this were not enough, an equally demonstrable challenge arises considering that the Act constructively removes minor children from the authority of their parents on grounds other than the fitness of the parents. In other words, it is immaterial whether or not the parents of the child are dutiful in their parental responsibilities because as the Act would have it, the mere fact of a miscarriage (or the status of a parent-minor) is ground to withdraw such child from the authority of his/her parents insofar as access to modern family planning methods is concerned. 60. The unreasonableness and contradiction surrounding the Act’s responsible parenthood objective are a strong indication that something else is at work here: that the state’s interest is not just about facilitating access to family planning methods, but also to do so at all cost—even at the cost of downplaying the natural and primary duty of parents to direct the upbringing of their children. II. THE RHETORIC OF INTERESTS FURTHERED BY THE ACT IRRECONCILABLE WITH EXPRESS CONSTITUTIONAL INTERESTS.
ARE

61. As outlined in the FIRST part, the challenges raised against the Act are textually demonstrable based on specific provisions of the Constitution. But how can we ascertain if these challenges suffice to invalidate the Act on its face? 62. For this purpose, the following questions are helpful: Does the Act further any interest? What kind of interest does it promote? Is it a State interest? If so, is it a compelling State interest, or at the least, a legitimate State interest? What is the basis for such interest? If the Act should be held consistent with the Constitution, there must be no difficulty answering these questions. For as long as the Constitution remains to be the highest law of Philippine government and all civic matters that flow from it, the Constitution remains to be the highest expression of that public interest which no law can disregard. Because a law that violates the Constitution violates public interest in the highest legal sense. 63. If the spring cannot rise higher than the source, then no provision of the Act must defeat the purposes and aims of any Constitutional provision, and no provision of the Act should be found to either directly violate a constitutional limitation or indirectly frustrate a constitutional interest, for what “cannot be done directly, cannot be done indirectly”. In this case, what the State lacks in basis under the Constitution, the State cannot supply through law.

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A.

The State has a Textually Demonstrable Constitutional Interest in Reproductive Health and Responsible Parenthood in the Context of Protecting the Maternal Functions of Women and the Reproductive Capacity of Spouses to Found a Family.

64. What are the textual basis for reproductive health and responsible parenthood under the Constitution? Are these subjects explicitly mentioned? If not, does the Constitution refer to it impliedly in other terms? 65. “Reproductive health” is not explicitly mentioned in the Constitution. Neither the word “reproduction” nor its root words “reproductive” or “reproduce” are mentioned in the Constitution. But the Constitution does refer to “health” eleven times as it expresses various health-related rights in the following contexts: • for the State to protect and promote the right to health of the people (Art. II, § 15) (hereafter referred to as the “health promotion clause”); • for the State to instill health consciousness among the people (Art. II, § 15) (hereafter referred to as the “health consciousness clause”); • for the State to protect and advance the right of the people to a healthful ecology (Art. II, § 16) (hereafter referred to as the “healthful ecology clause”); • for the State to consider public health in regulating travel (Art. III, § 6); • for the State to respect the right of the people to know the President’s state of health in case of his/her serious illness (Art. VII, § 12); • for the State to adopt an integrated and comprehensive approach to health development through the delivery of affordable health services (Art. XIII, § 11) (hereafter referred to as the “health services clause”); • for the State to provide affordable health services with priority to the sick underprivileged, elderly, disabled, women, and children (Art. XIII, § 11) (hereafter referred to as the “health services priority clause”); • for the State to endeavor to provide free medical care to

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paupers (Art. II, § 15) (hereafter referred to as the “pauper health clause”); • for the State to undertake research on health to address the country’s health needs and health problems (Art. XIII, § 12) (hereafter referred to as the “health research clause”); and • for the State to develop a healthy citizenry through physical education (Art. XIV, § 9.1) (hereafter referred to as the “physical health clause”); 66. In addition to these, the Constitution also makes specific reference to the maternal and reproductive functions of women in the following contexts: • for the State to provide healthful work conditions for women in view of their maternal functions (Art. XIII, § 14) (hereafter referred to as the “healthful conditions clause”); and • for the State to defend the right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood (Art. XV, § 3.1) (hereafter referred to as the “family founding clause”) 67. Based on these provisions, if there should there be explicit “reproductive health” or “responsible parenthood” interests to be furthered by the State as a constitutional imperative, it is either in the context of the healthful conditions clause or the family founding clause, considering that no other constitutional health clause refers to the maternal and reproductive functions of women and men in particular. In other words, if an inquiry were raised on the constitutional interest of the State in reproductive health and responsible parenthood, the answer should be clear: the State does have a constitutional interest in these subjects such that it is protective of the maternal functions of women (Constitution, Art. XIII, § 14) and the reproductive capacity of women and men to found a family (Constitution, Art. XV, § 3.1). 68. The next question is: how does the Act square with these constitutional interests?

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B.

“Reproductive Health” and “Responsible Parenthood” under the Act Embrace Broad Interests that Frustrate Express Constitutional Claims to Protect the Maternal Functions of Women and the Reproductive Capacity of Spouses to Found a Family, to Promote Health, Educate Youth, and Ensure the Productivity of Future Generations.

69. In general, the Act describes “reproductive health” as being in a state of complete physical, mental, and social wellbeing in all matters relating to one’s reproductive capacity (§ 4.p). This concept is further broadened by the Act under the related subjects of “reproductive health care” (§ 4.q); “reproductive health rights” (§ 4.s); and “reproductive health care program” (§ 4.r). Taking into consideration these related concepts, the scope and breadth of the Act’s reproductive health policy can be outlined as follows: (a) for complete physical reproductive wellbeing: • having a healthy reproductive system (§ 4.p) • treating infirmities in the reproductive system (§ 4.p) • treating disease in the reproductive system (§ 4.p) • having the ability to bear children (§ 4.p) • receiving treatment for abortion complications (§ 4.q.3) • receiving treatment for sexual infection (§ 4.q.3) • receiving treatment for sexual dysfunction (§ 4.q.3) • receiving treatment for breast and cervical cancer (§ 4.q.8) • receiving treatment for infertility (§ 4.q.3) • receiving emergency obstetric and newborn care (§§ 4.c; 4.d) • receiving reproductive health care as a component of basic health care (§ 3.d) • maintaining nutrition of the mother, infant, and child (§ 4.q.2)

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• promoting maternal health (§ 20) • promoting maternal nutrition (§ 20) (b) for complete mental reproductive wellbeing: • having freedom to decide when to have children (§ 4.p) • having freedom to decide how often to have children (§ 4.p) • experiencing a healthy, satisfying, and pleasurable sex life (§§ 4.p; 4.w) • receiving education on reproductive health (§ 4.t) • receiving education on family planning (§§ 4.q.1; 4.e) • receiving education on sexuality (§ 4.t) • providing adolescents with reproductive health counseling (§§ 4.q.4; 4.q.11) (c) for complete social reproductive wellbeing: • having a consensual sex life (§ 4.p) • having a responsible sex life (§ 4.p) • engaging in equal sexual relations (§ 4.p) • exercising the right to know how to plan, space, and time pregnancy (§§ 4.s; 4.e) • exercising the right to decide how to plan, space, and time pregnancy (§§ 4.s; 4.e) • attaining the highest standard of sexual health (§ 4.s) • attaining the highest standard of reproductive health (§ 4.s) • promotion of family planning (§§ 20; 23.a.1) and access to family planning methods and services (§§ 4.s; 4.e; 23.a.1; 23.b) such as hormonal contraceptives, intrauterine devices, and injectables (§ 9);

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• promotion of responsible parenthood (§ 20); and • promotion of adolescent reproductive health (§ 20). 70. It bears to stress that the Act explicitly treats the subject of “responsible parenthood” as a component to achieve “reproductive health rights” by fusing these two subjects with a common “bond”— the bond of “family planning” (§§ 4.e; 4.q.1; 4.s; and 4.v), whereby family planning methods are considered the means to achieve responsible parenthood and reproductive health. 71. Considering that the Act treats reproductive health and responsible parenthood primarily in the context of providing family planning methods to prevent, space, plan, and time childbearing, how do these subjects relate to the constitutional interests to protect the maternal functions of women (health clauses) and the reproductive capacity of women and men to found a family (family founding clause)? 72. First, the Constitution does not authorize Congress to define what standard of parental responsibility can be demanded of parents in the course of exercising their right to found a family. While this claim is arguable, the wording of the family founding clause lacks such language of deference to Congress as the Constitution finds appropriate for other State interests. For if the Constitution intends for the legislature to apply its wisdom to execute a constitutional interest, then such deference is explicitly granted by the Constitution itself with the words “as may be provided by law” or other similar terms as it does all over the Constitution. 73. In the case of “responsible parenthood” as defined in the Act, the only way the definition in Section 4.v can be justified is for the State to argue that the plenary legislative powers of Congress cannot be impaired by mere absence of the words “as may be provided by law”. The obvious problem with this approach is that it defeats the purpose of the numerous “deference clauses” found throughout the Constitution. 8
Explicit deference to the plenary power of Congress is evident in the implementation of: electoral integrity (Art. VII, § 4); legislative representation and service (Art. VI, §§ 2, 4, 5, 7 to 10, 15); limitations on elective office (Art. X, § 8); discipline and removal of civil service workers (Art. IX-B.2.3; Art. XI, § 2); limitations on appointive public office and other public service workers (Art. IXB.7, 8; Art. XI, § 17); the period of election for President and Vice-President (Art. VII, § 4); the limits of Presidential emergency powers (Art. VI, § 23.2); the limits of Presidential loan powers (Art. VII, § 20); the salary of Executive, Judicial, and Constitutional Commission officers (Art. VII, § 6; Art. VIII, § 10; Art. IX-A.3); the powers of anti-graft officers (Art. XI, §§ 4, 7, 13.2, 13.4, 13.8); the conditions for Presidential succession (Art. VII, §§ 7, 8); the conditions for public fund
8

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74. Second, and assuming arguendo that Congress has the power to define the State’s expectations for “responsible parenthood”, can Congress exercise such power in a manner that substantially changes the context of the subject as referred to in the Constitution? 75. As demonstrated above, there is one significant element of responsible parenthood under the Act that shifts this subject to a totally different context outside of the interest of the State, that is: its reference to planning, spacing, and timing of pregnancy, or simply the prevention of childbearing. Thus, insofar as the Act is concerned, a responsible parent is one who understands the need to prevent a pregnancy as a means to plan, space, and time the ideal number of children in the family. It bears to stress that family planning and the use of contraceptives have no other obvious effect but to prevent pregnancy and childbearing. While there may be various motivations behind this (ie: spacing, planning, and timing of childbearing or preventing health risks), these motivations do not change the fact that the act of using any family planning method or contraceptive always has the operative effect of preventing pregnancy (unless the method or contraceptive “fails”).

appropriation (Art. VI, §§ 25.1, 29.1); the conditions of public appointments (Art. VII, § 16; Art. XII, § 20; Art. XIII, § 17.2); the conditions for utilizing natural resources (Art. XII, § 2); the conditions for classifying and disposition of public lands (Art. XII, § 3); the exceptions to the prohibition on alien ownership of private lands (Art. XII, § 8); the determination of protected areas (Art. XII, § 4); transparency in government-contracted loans (Art. VII, § 20); the disclosure and preservation of government accounting files (Art. IX-D.2, 4); the violability of privacy of communications (Art. III, § 3.1); the impairment of the liberty of abode (Art. III, § 6); the liberty of the accused during trial (Art. III, § 13); the conditions of citizenship and allegiance (Art. IV, §§ 3, 5); the conditions for suffrage (Art. VI, § 1); the conditions for professional practice (Art. XII, § 14); the conditions for local executive control over the police (Art. XVI, § 6); the protection of intellectual property (Art. XIV, § 13); the conditions for participation in civic life (Art. XIII, § 16); the conditions for operating foreign educational institutions (Art. XIV, § 4.2); the conditions of tax exemptions for proprietary educational institutions and educational grants (Art. XIV, §§ 4.3, 4.4); the disposition of assets of non-profit educational institutions (Art. XIV, § 4.3); the allocation of judicial remedies and the jurisdiction of lower courts (Art. IX-A.7; Art. VIII, § 1); the allocation of national revenue for local governments (Art. X, § 6, 7); the creation of political subdivisions (Art. X, § 11); the extent of labor involvement in management decisions (Art. XIII, § 3); the honor due to the Philippine flag (Art. XVI, § 1); the adoption of national symbols (Art. XVI, § 2); the adoption of other official languages (Art. XIV, § 7); the demands of civilian military service (Art. XVI, § 4; Art. II, § 4); the regulation of advertising (Art. XVI, § 11.2); the demands of land reform (Art. XIII, §§ 4, 9; Art. XVIII, § 22); the demands against political dynasties (Art. II, § 26); the disclosure of transactions involving public interest (Art. II, § 28); and the disclosure of information on matters of public concern (Art. III, § 7).

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76. How does this square with the family founding clause of the Constitution? Does the Constitution permit the State to legislate its expectations of parents in a manner that substantially qualifies the already unqualified deference accorded by the Constitution upon the same subject? If the State is mandated to defend the right of parents to found a family in accordance with their religious convictions and the demand of responsible parenthood, is the State allowed to defend that right by supplying an expectation of how parents are to exercise that right? Assuming that the Constitution permits this, can Congress supply a certain standard of responsible parenthood that is expected to be applied by parents even before a family is founded in the first place, considering that the Act expects responsible parents to “bring forth” only those children they can “raise in a truly humane way”? (§ 2, par. 11) 77. It bears to stress again that the Constitution is not neutral or passive when it comes to the family, as it categorically demands the State to “protect and strengthen” it with particular interest in recognizing the right of couples to “found” a family without reference to any “planning”, “spacing”, or “timing” expectations on the part of the State. 78. However, as Congress would have it, a “responsible parent” is one who knows when and how to achieve a desired family size—and not just any family size, but a particular family size that satisfies the expectations of the State. And what is that expectation? The expectation is for responsible parents to “bring forth” only those children they can “raise in a truly humane way” (§ 2, par. 11). While the Act does not provide some qualitative standard on how a responsible parent can “respond to the needs and aspirations of the family”, it does provide a quantitative benchmark, that is: the ability of parents to space and time the number of their children within the context of the family’s resources (§ 3.f.1). This categorical State expectation is made clearer as the Act mandates every parent to understand and assess his/her psychological, physical, socio-cultural, and economic concerns in the course of founding a family (§ 4.v; § 3.f.1), which is in stark contrast to the position of the Constitution giving explicit deference to the right of spouses to found a family with a declaratory reference to their religious convictions and the demands of responsible parenthood. Declaratory—because they are not meant to be preconditions or prerequisites to the founding of a family. Otherwise, it would result in the absurd application of excusing the State from defending the right of parents to found a family when the parents are found to be raising their family as agnostics or atheists, or when they are found to be having one child too many beyond their psychological, physical, socio-cultural, or economic means.

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79. The point of the forgoing discussion is that the Constitution did not intend to allow Congress to define or qualify the kind of “demands” expected of “responsible parenthood” as already declared in the family founding clause of the Constitution. And assuming such power exists, Congress cannot do so in a manner that substantially changes the context of the subject as referred to in the Constitution. 80. If “reproductive health” and “responsible parenthood” under the Act essentially frustrate constitutional interests on the founding of families, what then do we make of the positive policies of the Act to— • promote openness to life (§ 2, par.7); • protect the life and health of mothers, children, and the unborn and instill health consciousness (§ 2, par. 2; § 2, par. 4.b; § 3.c); • promote women’s rights and dignity (§ 2, par. 3); • promote and strengthen the family (§ 2, par. 2); • promote the rights and welfare of children to protect them from all forms of neglect and conditions prejudicial to their development (§§ 2, par.2; par. 4.b); • preserve human resource (§ 3.c) and use resources equitably (§ 3.f.2); • create an environment conducive to having a long, healthy and productive life for present and future generations (§ 4.aa)? 81. Openness to Life? -- While it is the declared policy of the Act to be open to life (§ 2, par.7), in the same breath, the Act puts in place a “reproductive health right” mandate premised on— • the encouragement of childbearing with regard to the mother’s health and resources of the couples (§ 3.f.1) hereafter referred to as the “childbearing viability approach”); • the procurement family planning supplies for the whole country (§ 10);

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• the promotion of the right to access family planning methods and services (§ 23.a.1) as a means to attaining the highest standard of sexual health possible (§ 4.s) and • the inclusion of hormonal contraceptives, intra-uterine devices, and injectables in the National Drug Formulary (§ 9). 82. If the Act is guided by the purpose of encouraging openness to life, why does it mandate the State to promote programs based on a “childbearing viability standard” in Section 3.f.1? Based on a plain understanding of the Act’s childbearing viability standard, the State is mandated to promote childbearing if the mother’s health will not be prejudiced AND they (with her spouse) have available resources to meet the needs of their intended family size. 83. As regards the first viability standard, a worst case scenario foresees an otherwise unhealthy mother placing herself in a situation where she may not survive a pregnancy or childbirth process. But what does that mean? Does it mean that a woman of childbearing age must always determine if she will be able to maintain her health in the course of an intended pregnancy? Throughout the full nine months? Does this mean that any imminent health risk places her on the non-viable list? Maybe a serious heart condition? A serious iron or calcium deficiency? High blood pressure? Low blood pressure? What about a history of mental imbalance? Or a congenital risk of passing on a serious disease to her offspring? What about her history of successive caesarian births? Or her history of fetal cord-coil incidents or placenta previa? Or her history of having miscarriages? And assuming these benchmarks are viable, who is to determine the significance of these factors in eventually deciding who is fit or not fit to proceed with bearing another child? 84. As regards the second viability standard, a worst case scenario foresees an otherwise healthy mother placing herself (and her family) in a difficult situation where she may not be able to raise her intended child or children in a “truly humane way” (§ 2, par. 11). But what does that mean? Does it mean that an otherwise healthy childbearing woman may have difficulty founding a family along with her spouse if they do not have available resources to do so? How much money must they have in the bank to be satisfied of their capacity to spend for a normal delivery, or a caesarian procedure? How much to be able to found a family? How much to be able to comply with their obligation to support their intended child for the next eighteen years of life as a minor? What resources must they have available to be able to pull it off? Must the spouses be gainfully employed? Must they be receiving a minimum wage? Must they have

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health insurance? Must they consider if the mother’s forthcoming pregnancy is still within the quota for an allowable tax deduction? Must they have easy access to a maternity hospital? A vehicle available anytime during the ninth month? What about the spouses’ educational attainment? Are they satisfied that they are literate or sensible enough to be able to raise their child in a “truly humane way” for the next eighteen years of the child’s life? In other words, even assuming that the mother is perfectly healthy to bring a child to full term, will she be able to garner available resources to raise her child in the manner expected by the State? 85. The point of this discussion is that the Act declares a policy of openness to life with a viability approach so encompassing that it charges prospective parents with so much mental and psychological burden to level off their expectations with that of the State’s expectations—a burden that frustrates the intention of the State to respect the right of couples to found a family first, and then to raise their children in a manner consistent with their religious convictions and the demands of responsible parenthood.9 86. Is it reasonable for the Act to be guided by these viability standards in order to bring about its desired legislative objective of being open to life? In proposing these statutory expectations, is the Act being open to life or is it being cautiously open to life? Or maybe carefully open to life? Or practically open to life? Isn’t it enough for the woman to be healthy? Or if she sees some serious risk to her health, isn’t it enough that she and her spouse have available resources to meet that health risk in case it arises? And assuming these benchmarks are viable, who is to determine the significance of these factors in eventually deciding which couple is fit or not fit to proceed with bearing another child? 87. Assuming that the State is able to fashion programs with due regard to these viability standards, has not it already qualified its policy of being open to life? And if these programs are put in place and implemented, what do we make of those women who have been found to be unhealthy to bear a child (whatever that means)? On the other hand, what do we make of those healthy women found to lack the available resources to have another child (or to have one child for
The State does have an interest in the quality of responsible parenthood exercised by couples in the way parental authority is respected or denied by the State in various instances under Articles 230, 231, and 232 of the Family Code. These provisions reveal how the State finds cause to suspend parental authority for acts committed by a parent in the course of raising a family. This is in stark contrast to the “responsible parenthood” standard put in place by the Act whereby the State is allowed to define the responsibility of parents in a manner that should begin to operate even prior to their founding of a family.
9

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that matter)? Are they to be considered as “potentially irresponsible parents” under the standards of the Act? 88. The unreasonableness of this viability standard is made more apparent by the family planning policy of the Act put in place by a massive pregnancy-prevention mechanism directed primarily for the benefit of the “poor and marginalized” (§§ 11; 2, par. 5; 3.i; 3.g; 7). Thus, by reading the Act’s viability approach in line with its “social justice” approach to the provision of family planning methods and supplies to the poor and marginalized, the Act is actually mandating the State to promote programs that will make the poor and marginalized understand why they do not have available resources to found a family in a truly humane way. While it is true that the poor and marginalized still have the freedom to found a family, at the end of the day, they will not find favor in the State’s programs precisely because they most probably will fail the viability test in the first place. And even before they could assess their own ability to found a family in a truly humane way, the State is already giving them the subsidy to plan, space, time and hinder their childbearing intentions with free family planning supplies within their reach in from any public health care provider (§ 11; § 2, par. 5; § 3.g). 89. Preventing births? Preventing childbearing? While our Constitution is replete with provisions directing the prevention and prohibition of certain events,10 nowhere in the Constitution is there any slightest reference or suggestion to prevent births and childbearing as a matter of State policy. To say that the State has a constitutional interest in subsidizing access to family planning methods and contraceptives as a means to plan, space, time, and prevent childbearing is reading into the Constitution what is not there. In fact, the Act is reading into the Constitution what was purposefully kept out of it.11
Our Constitution is exceptional as it details particular State interests in preventing certain kinds of actions or events detrimental to our national life, such as: war (Art. II, § 2); nuclear weapons (Art. II, § 8); military supremacy (Art. II, § 3); injustice (Art. III; Art. VIII, §§ 14, 15; Art. XIII, § 3); economic inequality (Art. XII, §§ 1, 6); dual allegiance (Art. IV, § 5); class stratification (Art. VI, § 31); conflict of interest in public service (Art. VI, §§ 12, 13, 14; Art. VII, § 13); misappropriation of public money (Art. VI, § 25; Art. IX-D); corruption (Art. XI); vacuum in executive power (Art. VII, §§ 7 to 12); bypassing of Congress through international policy (Art. VII, § 21); vulnerability of the judicial system (Art. VIII, §§ 2, 3, 10); frustration of suffrage (Art. IX-C); cultural indifference (Art. XII, § 5; Art. XIV, §§ 14 to 18); foreign supremacy over State interests (Art. XII, §§ 12, 13; Art. XIV, §§ 4.2, 6, 7); unjust monopoly (Art. XII, § 19); constitutional instability (Art. XVII); and social disintegration (Art. XV). 11 Our Constitution takes much of its content from the text of the 1973 Constitution. While many provisions in the 1973 Constitution were substantially adapted into our Constitution, only a few were expressly “redacted,” one of which is the “population management clause”, which reads: “It shall be the
10

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90. Promotion of Health? -- The Act declares a policy of promoting the life and health of mothers and the dignity of women (§§ 3.c; 2, par. 3). In the same breath, it puts in place a “reproductive health right” mandate premised on her right to access family planning methods and services (§ 23.a.1) as a means to attaining the highest standard of sexual health possible (§ 4.s) and mandates the inclusion of hormonal contraceptives, intra-uterine devices, and injectables in the National Drug Formulary (§ 9). 91. If the Act is guided by the purpose of protecting life health and promoting the dignity of women, why does it mandate the classification of certain contraceptives within the Essential Drugs List of the National Drug Formulary? Based on this policy, coupled with the mandate to procure family planning supplies for the whole country (§ 10), all offices and instrumentalities of government are mandated to procure hormonal contraceptives, intra-uterine devices, and injectables that are found in the formulary. 92. If the desired objective of the Act is to protect the life and health of women, why is the State taking an affirmative and categorical risk with these kinds of contraceptives that have been the subject of caution and warning as regards their use by women in many parts of the world, as consistently reported in various media?:

THE PILL KILLS WOMEN AND BABIES12 By Rita Diller, Celebrate Life Magazine, July 2012 SWISS WOMAN'S DEATH LINKED TO HORMONAL CONTRACEPTIVE13 DEPO PROVERA USE INCREASES BREAST CANCER RISK14 By Steven Ertelt, June 11, 2012 BREAST CANCER RISK FROM THE PILL15 CHRIS KAHLENBORN, M.D. STUDY PINPOINTS ORAL CONTRACEPTIVE-BREAST CANCER LINK16 by JOEL BRIND, PH.D.

responsibility of the State to achieve and maintain population levels most conducive to the national welfare.” (Art. XV, § 10, 1973 Constitution) 12 http://www.clmagazine.org/article/index/id/MTA2NTI/ 13 http://www.lifesitenews.com/news/archive/ldn/2009/oct/09101605 14 http://www.lifenews.com/2012/06/11/study-depo-provera-use-increasesbreast-cancer-risk/ 15 http://www.lifeissues.net/writers/kah/kah_19breastcancerpill.html 16 http://www.abortionbreastcancer.com/download/Brind_Dolle_2009_analysis. PDF

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ORAL CONTRACEPTIVE USE AS A RISK FACTOR FOR PREMENOPAUSAL BREAST CANCER17 by KAHLENBORN, M.D. HOW HORMONAL CONTRACEPTIVES AND INDUCED ABORTION INCREASE BREAST-CANCER RISK18 by DR. ANGELA LANFRANCHI BIRTH CONTROL PILL LINKED TO HARDENING OF THE ARTERIES19 PILL LINKED TO CERVICAL CANCER20 NEW STUDY SHOWS CONTRACEPTIVE PILL INCREASES RISK OF HEART DISEASE, STROKE21 DEPO-PROVERA LINKED TO OBESITY22 BIRTH CONTROL MAY BOOST RISK OF CARRYING STAPH BACTERIA23 Fox News, September 14, 2012 STUDY FINDS HALF OF WOMEN ON "BIRTH CONTROL SHOT" SUFFER BONE PROBLEMS24 COMBINED ORAL CONTRACEPTIVE USE AND RISK OF SYSTEMIC LUPUS ERYTHEMATOSUS25 M. Bernier, M.D., et al. BIRTH CONTROL PATCH CLAIMS 23 LIVES26 UK WOMAN DIES OF BLOOD CLOTS AFTER TEN YEARS ON THE PILL27

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http://www.mayoclinicproceedings.com/content/81/10/1290.full.pdf+html?sid =020bb6e9-cf26-45df-8b8b-2b9a1be2528d 18 http://www.abortionbreastcancer.com/download/LQ_76_3_2_Lanfranchi.pdf 19 http://www.lifesitenews.com/news/archive/ldn/2008/apr/08040807 20 http://www.lifesitenews.com/news/archive/ldn/2003/apr/03040405 21 http://www.lifesitenews.com/news/archive/ldn/2008/may/08050713 22 http://www.lifesitenews.com/news/archive/ldn/2009/aug/09081206 23 http://www.foxnews.com/health/2012/09/14/birth-control-may-boost-riskcarrying-staph-bacteria/ 24 http://www.lifesitenews.com/news/archive/ldn/2009/dec/09122105 25 http://onlinelibrary.wiley.com/doi/10.1002/art.24398/pdf 26 http://www.lifesitenews.com/news/archive/ldn/2005/jul/05071506 27 http://www.lifesitenews.com/news/archive/ldn/2010/apr/10040905

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BIRTH CONTROL BY WOMEN WITH COMMON VEIN CONDITION INCREASE BLOOD CLOT RISK TO 1,700%28 By Jeremy Kyrn, August 10, 2011 WOMAN SUES 'BIRTH CONTROL PATCH' MANUFACTURER FOR PULMONARY EMBOLISM29 BIRTH CONTROL PILL ALTERS WOMEN'S EMOTIONAL MEMORY: NEW RESEARCH30 By Jeremy Kryn, September 15, 2011 'ALARMING DATA' CONNECTING HORMONAL CONTRACEPTION AND HIV TRANSMISSION31 by Joan Frawley Desmond, July 18, 2012 ORAL CONTRACEPTION LINKED TO PROSTATE DEFORMITIES IN MOTHER’S CHILD32 RECENT ORAL CONTRACEPTIVE USE AND ADVERSE BIRTH OUTCOMES33 Chen XK, Eur J Obstet Gynecol Reprod Biol. 2009 May;144(1):40-3. Epub 2009 Feb 23. BIRTH CONTROL PILL COULD CAUSE LONG-TERM PROBLEMS WITH TESTOSTERONE34 EX FDA HEAD SAYS BAYER WITHHELD YASMIN SAFETY DATA35 Reuters, December 5, 2011 'NOBODY MENTIONED THE RISK': WOMAN PARALYZED AFTER TAKING CONTRACEPTIVE PILL SPEAKS OUT36 By Peter Baklinski, April 3, 2013

http://www.lifesitenews.com/news/birth-control-use-by-women-withcommon-vein-condition-raise-deadly-blood-cl 29 http://www.lifesitenews.com/news/archive/ldn/2005/sep/05091303 30 http://www.lifesitenews.com/news/birth-control-pill-makes-womensmemories-more-emotional-new-research 31 http://www.ncregister.com/daily-news/understanding-the-international-effortof-populationcontrol?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+ NCRegisterDailyBlog+National+Catholic+Register#When:2012-0718ixzz20zBd3HgW#ixzz211d8c4k1 32 http://www.newscientist.com/article/dn7333 33 http://www.ncbi.nlm.nih.gov/pubmed/19233538pubmed/19233538 34 http://www.medicalnewstoday.com/releases/35663.php 35 http://www.reuters.com/article/2011/12/05/bayer-contraceptive-lawsuitidUSN1E7B41FD20111205 36 http://www.lifesitenews.com/news/nobody-mentioned-the-risk-womanparalyzed-after-taking-contraceptive-pill-s

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'JUST THE TIP OF THE ICEBERG': 23 CANADIAN WOMEN DEAD IN 6 YEARS WHILE ON BIRTH CONTROL37 By Peter Baklinski, June 11, 2013 “WORLD CONTRACEPTION DAY" IGNORES NEW FDA WARNINGS ABOUT THE PILL By Arland K. Nichols, October 26, 201138

• $700M CLASS SUIT SAYS DEPO-PROVERA CAUSES OSTEOPOROSIS39 • 43 WOMEN SUE OVER BIRTH CONTROL PATCH40 • J&J PAID $68M TO SETTLE BIRTH CONTROL CASES41 • BAYER FACES 12,000 LAWSUITS OVER YAZ BIRTH CONTROL PILLS42 Public Health Watchdog, September 18, 2012 • BAYER SETTLES 3,490 YAZ AND YASMIN LAWSUITS WITH MORE THAN 8,000 REMAINING43 PR Newswire, November 14, 2012 93. While it is argued that the Act mandates the Food and Drug Administration to ensure the safety of contraceptives to be procured and distributed under the Act, it bears to stress that no such contraceptives are legally made available in these foreign nations without having been registered and cleared by their respective regulatory agencies. And despite such clearances, the consistent attribution of these serious health risks to contraceptives still abound.44
http://www.lifesitenews.com/news/just-the-tip-of-the-iceberg-23-canadianwomen-dead-in-6-years-while-on-yaz 38 http://www.hliworldwatch.org/?p=973 39 http://www.lifesitenews.com/news/archive/ldn/2005/dec/05122101 40 http://www.lifesitenews.com/news/archive/ldn/2006/nov/06110206 41 http://www.bloomberg.com/apps/news?pid=newsarchive&sid=amZT0X84_8 zU&refer=home 42 http://www.publichealthwatchdog.com/bayer-faces-12000-lawsuits-over-yazyasmin-birth-control-pills/ 43 http://www.prnewswire.com/news-releases/bayer-settles-3490-yaz-andyasmin-lawsuits-with-more-than-8000-remaining-179347771.html 44 Earlier this month, the Federal Appeals Court of the United States for the District of Columbia decided to enjoin the implementation of the federal health care law that included the mandatory insurance coverage for contraceptives, being the first court to take judicial notice that the World Health Organization classifies certain oral contraceptives as carcinogenic. (Francis Gilardi, et al. vs. U.S. Health and Human Services, et al. United States Court of Appeals for the District of Columbia Circuit. No. 13-5069. Decided 11-1-2013. Available at:
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94. The Act’s reckless approach in promoting contraceptives is even heightened by its misplaced reliance upon the Food and Drug Administration to determine the “safety” of all modern family planning methods (§§ 4.a; 4.l), not realizing that what the FDA reviews and studies are the materials and compositions of pharmaceutical products in view of their commercial end-use in the consumer market. But as the abovementioned medical reports and class suit settlements will reveal, the safety of contraceptives is not determined solely by physical experiments or chemical reviews, but rather on their actual impact on the bodies of women. 95. On this point, it bears to stress that the FDA does not treat patients, rather, it studies food and drugs. It does not entertain patient requests or referrals from health facilities who have complaints about “side-effects” from contraceptives, rather, it entertains product certification requests from pharmaceuticals. This simply means that whatever FDA approval is given on a particular contraceptive method or device, the end-use risk that the FDA is “certifying” to be “safe” is not actually covered by its review functions—a task which it cannot do under its mandate precisely because it reviews food and drugs, but not the people who take them.45 96. It is also argued that the health risks associated with contraceptives are mere side-effects or adverse effects that are not uncommon with other medications and drugs. But this is precisely the kind of argument that highlights the unreasonableness of this policy. How can the State justify placing young healthy women at serious risk of suffering serious “side-effects” from taking contraceptives that are not medicines in the first place? No amount of research or expert medical opinion will change the fact that contraceptives are not medicines, that is, for as long as the medical profession and the rest of humanity are not ready to admit that pregnancy and childbearing
https://www.documentcloud.org/documents/814108-gilardi-vs-hhs.html) 45 While the State is mandated to protect the people from hazardous products (Art. XVI, § 9, Constitution), in the same year that the Act was signed into law, the incumbent Health Secretary issued a Department Order authorizing the Food and Drug Administration (FDA) to procure modern family planning commodities from international aid organizations such as the World Health Organization (WHO) and the United Nations Population Fund (UNFPA) and to exempt such commodities from FDA review and registration. Curiously, while the Administrative Order cites the urgency of procuring these goods “for the various preventive and curative health programs of the government,” it expressly cites the objective of these international institutions to “reduce poverty.” (DOH Admin. Order No. 2012-0011, July 17, 2012) (See Annex “ZZ” of Petitioner’s Urgent Manifestation and Motion for Issuance of Show-Cause Orders Ad Cautelam dated 06 August 2013).

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are a kind of disease or illness requiring treatment and to be prevented. If respondents are aware of this fact and even concede to it, what health purpose does it serve to place certain contraceptives in the National Drug Formulary Essential Drugs List? If contraceptives are not medicines, why treat them as essential drugs? If pregnancy and childbearing are not diseases or illnesses, why permit the nationwide distribution of contraceptives through a drug formulary system that is meant to address real health concerns?46 97. If there is no sense in all this, then there is no sense in protecting the life and health of women as a “reproductive health” objective, unless respondents are ready to admit that contraceptives are exceptions to the National Drug Formulary standards, and that pregnancy and childbearing are exceptional public health concerns that need to be addressed in the same way as illnesses and diseases are treated. If the State is ready to admit these, then the Act shall have been the first legislative effort to redefine the State’s legitimate interests in instilling health consciousness among the people and a step towards treating women as social health risks because of their childbearing capacities. If this does not betray reason, then what does?47 98. Family Strength and the Welfare of Youth? -- The Act declares a policy of strengthening the family (§ 2, par. 2) by defending the right of couples to found a family (§ 2, par. 4.c) and promoting the rights and welfare of children from all conditions prejudicial to their development (§§ 2, par.2; par. 4.b). In the same breath, it puts in place a “reproductive health” and “responsible parenthood” policy that includes— • prohibiting the requirement of spousal consent before providing reproductive health procedures on demand of a patient-spouse, even in non-emergency cases (§ 23.a.2.i). • defending the right of minor girls and boys who are already parents to have access to modern family planning methods without need of prior consent from parents (§ 7, par. 2); and

It bears to stress that when the Department of Health places a particular drug or product in the NDF-Essential Drugs List, the selection of such product is made with due regard to its relevance to an ongoing public health concern, as well as its efficacy to treat the sickness, disease, infirmity, or illness which it is meant to address. 47 This is not to mention the government’s scant consideration of the body of medical evidence and literature set forth extensively in the Memorandum of petitioners in G.R. No. 204934, revealing the other serious health impacts resulting from the use of certain contraceptives.

46

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• defending the right of minor girls who have suffered a miscarriage to have access to modern family planning methods without need of prior consent from parents (§ 7, par. 2); and • defending the right of adolescents to be taught reproductive health (§ 4.q.4) and responsible parenthood (§ 14). 99. If the objective of the Act is to strengthen the family, what business does the State have in mediating between the disagreement of spouses on a matter concerning their personal interests on matters concerning their reproductive capacities? What reasonable purpose does this serve to further the Act’s professed interest in family strength when it effectively allows the State to intervene in the decision-making processes of spouses? 100. If the State is allowed to overrule the objections of a spouse simply because the patient-spouse seeks to receive reproductive health procedures on her own behalf, how does this square with the duty of the State to protect the integrity of spousal union? If the Act’s solution to spousal disagreement is to simply overrule the objections of one spouse on matters concerning reproductive health procedures, what does that make of the State’s role in the multitude of possible disagreements that spouses may encounter in the course of their married life such as disagreements in the founding of a family, the discipline and upbringing of children, and the management and disposition of family property? What is it in reproductive health procedures that justify State intervention simply on the basis of a disagreement between spouses? It bears to stress that the spousal overrule clause operates even in non-emergency situations such that a disagreement between spouses even on nonlife-threatening reproductive health procedures would still justify the interference of the State. Are reproductive health procedures a matter of such grave concern for the State such as to require its intervention in an institution which the State itself is mandated to protect in the first place? As it appears, the Act provides for this spousal overrule clause simply because it says so. Not even an emergency requirement is in place to qualify the application of this “spousal overrule clause.”48
In those very rare and restrictive instances where the Constitution allows a State-imposed action or remedy that burdens protected liberties, the Constitution does so under the most restrictive and serious circumstances such as when it allows: (1) the violation of communication privacy when public safety or order requires it (Art. III, § 3.1); (2) the suspension of the writ of habeas corpus in cases of invasion or rebellion (Art. III, § 15); (3) the alteration of franchise rights as required by the common good (Art. XII, § 11); and (4) the take over of private businesses in times of a national emergency (Art. XII, § 17).
48

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101. To further highlight the unreasonableness of this clause, it bears to stress that the provision of reproductive health procedures does not even involve addressing a real health concern, considering the earlier demonstration on how reproductive health results in preventing childbearing, rather than addressing a sickness or disease or any threat to life and health. 102. Based on this discussion, it becomes clear that the spousal overrule clause allows the State to indirectly compromise the strength of the family by directly interfering in the decision-making concerns of spouses in a matter that does not require such State interference. If the State is ready to admit that access to reproductive health procedures significantly contributes to the strength of the family such that it justifies sacrificing spousal unity in the process, then the Act shall have been the first legislative effort to redefine the State’s legitimate interests in family solidarity—all in the name of allowing access to “reproductive health procedures” that do not address any sickness or disease. If this is not unreasonable, what is? 103. On the matter of defending the right of (1) minor girls and boys who are already parents and (2) minor girls who have suffered a miscarriage to have access to modern family planning methods without need of prior consent from parents (§ 7, par. 2), a similar observation cannot escape our sense of reason. As it reads, the parental free consent clause allows the suspension of parental authority over their minor children not because of the unfitness of a parent or because of any unlawful act performed by a parent upon the child, but rather simply because the child has either had a miscarriage, or is raising a child of his/her own. This means that even if a parent is responsibly performing his/her parental duties, the mere fact that a minor child has had a miscarriage justifies the alienation of child and parent in all matters concerning the child’s desire to access modern family planning methods. Thus, by no causal fault of any parent, the mere fact that their minor child has had his/her own sexual encounter that led to a pregnancy (whether miscarried or carried to full term) is ground for disregarding the primary and natural duty of parents to rear and counsel their minor children. 104. It may sound liberating for the child, but what purpose does that serve if the Act itself also mandates the promotion of the welfare of children in all matters relating to their development (§§ 2, par.2; par. 4.b)? Put differently, in what way is parental guidance a threat to the welfare of a child who has had a miscarriage or is raising his/her own child? On the contrary, is it not reasonable to presume the ability of parents to look after the best interests of the child, especially in the course of a life-changing event such as a pregnancy? If the State is ready to admit that a parent-minor or a

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minor girl who has had a miscarriage is mature enough to direct the course of her life in all matters concerning access to family planning methods, then suffice to say, the Act has taken a step to presume that any form of parental involvement in the family planning preferences of their minor children is prejudicial to the best interests of the child. 105. To further highlight the unreasonableness of this parental free consent clause, it bears to stress that the issue of pregnancy among the youth and their need to access modern family planning methods has already been put to a test in the United States of America, such that in a 2012 report released by a United States House Committee entitled “A BETTER APPROACH TO TEENAGE PREGNANCY PREVENTION,”49 an abstinence-centered approach was considered the “best public health strategy” to prevent teen pregnancies and sexually-transmitted infections.50 In contrast, the Act not only allows the alienation of such minors from the care of their parents, but does so recklessly and without reason51 for no other reason but to allow minors access to modern family planning methods. 106. Assuming arguendo that the State is able to put forth a reason for this clause, what is it that the Act is allowing our minor children to access without any parental guidance? Modern family planning methods? The same methods that neither address health nor treat a disease or sickness? If this is not unreasonable, what is? 107. With regard to sexual relations and the education of youth, the Act mandates government to defend the right of individuals to have a sex life that is responsible, safe, consensual, and satisfying (§ 4.p). Is there a constitutional basis for the State to mandate the right of persons to exercise and have a consensual, responsible, healthy, satisfying, and pleasurable sex life? Is there a constitutional basis for the State to mandate the highest sexual health standards
http://energycommerce.house.gov/sites/republicans.energycommerce.hous e.gov/files/analysis/20120706riskavoidance.pdf 50 This is not the first time the Court has based its decision, at least in part, on consideration of socially-available data which was not normally presented as an adjudicatively-tried fact. (People v. Ancheta, G.R. No. 197371, June 13, 2012, citing People v. Garcia, 580 SCRA 259, 2009) 51 Researchers have abandoned the false rhetoric behind “intended” and “unintended” pregnancies, considering that some women welcome “unintended” yet healthy pregnancies, while some “intended” pregnancies end up being treated as unwelcome due to complications or a change in the woman’s social conditions. (See Jacqueline C. Harvey, Outdated Lexicons and obsolete solutions: A response to the editorial in the February 2013 issue of Contraception, Reproductive Research Audit (February 12, 2013), available at http://reproductiveresearchaudit.com/wpcontent/uploads/2013/02/PregnancyAmbivilence-1.pdf)
49

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and equal sexual relations as a matter of national policy? Is there any constitutional provision that allows a textual demonstration of a State interest in the kind and quality of our sexual experiences? 108. It goes without saying that our Constitution is exceptional as it details particular State interests in almost every aspect of national life such as the kind and quality of: our government (Preamble; Art. II, § 1, 4); foreign policy (Art. II, § 2, 7); economic activity (Art. II, § 19; Art. XII, § 1); public service (Art. II, § 27, 28; Art. VII, § 5; Art. XI, § 1); remedial processes (Art. III, § 16); judicial office (Art. VIII, § 7); judicial disposition (Art. VIII, § 14); social justice (Art. XII); education (Art. XIV); and our armed forces and police force (Art. XVI, § 5, 6). But to say that the State has a constitutional interest in the very act of sexual intercourse and the physical, emotional, and psychological aspects associated with every person’s sex life is reading into the Constitution what is not there. 109. Finally, is there a constitutional basis for the State to promote the abovementioned reproductive health components on youth and adolescents through the education system? Is there a constitutional basis for the State to mandate the education of youth for them to achieve a consensual, responsible, healthy, satisfying, and pleasurable sex life? Is there a constitutional basis for the State to educate youth on family planning methods and the use of hormonal contraceptives, intra-uterine devices, and injectables? 110. Again, it goes without saying that our Constitution is exceptional as it details particular State interests in pursuing the kind and quality of education and upbringing of youth that serves our national interests, such as: promoting the physical, moral, spiritual, intellectual, and social wellbeing of youth (Art. II, § 13); promoting patriotism, nationalism, and civic involvement of youth (Art. II, § 13); prioritizing science and technology, arts, culture, and sports (Art. II, § 17); promoting love for humanity, responsible citizenship, ethical and spiritual values, moral character, personal discipline, creative thinking, and vocational efficiency (Art. XIV, § 3.2); respecting religious upbringing (Art. XIV, § 3.3); prioritizing research, invention, innovation, and culture (Art. XIV, § 10); national culture (Art. XIV, §§ 14, 15, 17, 18.2); promoting physical education (Art. XIV, § 19); and promoting Constitutional supremacy (Art. XIV, § 3.1). 111. There is no doubt that the State has an interest in the education of youth for their role in nation building. But to say that the State has a constitutional interest in raising children with knowledge

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of the kind of “reproductive rights” described above is to read into the Constitution what is not there.52 112. Preserving Human Resource and The Productivity of Future Generations? – The Act declares a policy of creating an environment conducive to the productivity of our nation’s future by allocating resources equitably and preserving human resource (§§ 3.c; 3.f.2; 4.aa.). In the same breath, it puts in place a massive family planning subsidy for the delivery of reproductive health and family planning methods and supplies to all the poor and marginalized all over the country (§ 11; § 2, par. 5; § 3.g). 113. It bears to stress that whatever family planning method is employed by either the male or female (rich or poor) in the course of their sexual intercourse, the method leads to no other event but the prevention of a pregnancy. While there may be an underlying mental or moral motivation to “plan” or delay pregnancy, it does not change the operative act of the family planning method employed, which is simply to prevent or avoid pregnancy. 114. With this in mind, the unreasonableness of the family planning subsidy becomes apparent. If the desired objective of the Act is to look forward and ensure the productivity of future generations, why is it allowing the State to embark on a massive pregnancy-prevention policy among our people—our human resource? What purpose does it serve to direct the use of public resources to purchase, procure, and distribute free reproductive health information, methods, supplies, and services partiularly for the poor and marginalized (§ 11; § 2, par. 5; § 3.g) from the national level, to the local government level, and down to the barangay level
In September 2005, the DEPARTMENT OF EDUCATION (DepEd) issued an Order to institutionalize the education of adolescents on reproductive health in partnership with the UNITED NATIONS POPULATION FUND (UNFPA, a global advocate of contraception use, population control and abortion, and partner of the Department of Health in the procurement of modern family planning commodities). The 23-page order details the provision of a massive information project to ensure the UNFPA’s “advocacy” of promoting a “strategy of behavior change” among adolescents as regards their reproductive health practices. (DepEd Memorandum No. 261, s. 2005, September 5, 2005: OPERATIONALIZATION OF THE UNFPA-ASSISTED PROJECT “INSTITUTIONALIZING ADOLESCENT REPRODUCTIVE HEALTH THROUGH LIFESKILLS-BASED EDUCATION,” at: http://www.deped.gov.ph/index.php/issuances/deped-memos/20051/document/dms2005261pdf?limit=100&format=raw&start=100. This “behavior change” strategy is made apparent in the Act itself, as it mandates a massive youth education and public awareness policy on all matters concerning the Act through the: (1) promotion of information on family planning methods (§§ 3.e; 3.g; 20); (2) participation of the private sector (§ 3.i; 17); participation of all local governments (§§ 5; 6; 8; 10; 13); (3) public education curriculum (§ 14); civil registrar system (§ 15).
52

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(§ 16)? As if this were not enough, the Act proceeds to mandate government to harness the participation of the private sector to act as a producer, distributor, and dispenser of family planning supplies to the poor and marginalized (§ 19.b.2). 115. Thus, considering that no one who uses a family planning method uses it in order to get pregnant, it goes without saying that this massive delivery of free pregnancy-prevention methods and supplies to the poor and marginalized reveals a clear intention to prevent the poor and marginalized women from having more children than they already have—or not to have children at all. If the State is ready to admit that the productivity of our nation’s future is better secured with lesser births among the poor and marginalized, then what do we make of the State’s interest to value and harness human development for the benefit of future generations, as coherently and consistently outlined in the Constitution, thus: The Constitutional Intent to Generate Human Capital by: • Protecting life (Art. II, § 5; Art. II, § 12); • Fostering love of humanity (Art. XIV, § 3.2); • Sustaining national life (Art. XIV, § 10); • Protecting the maternal functions of women (Art. XIII, § 14); The Constitutional Intent to Transform Human Capital: • Recognizing the vital role of the youth in building the nation (Art. II, § 13); • Promoting the physical, moral, ethical, spiritual, intellectual, and social well-being of youth (Art. II, § 13; Art. XIV, § 3.2); • Encouraging the youth to be involved in public and civic affairs (Art. II, § 13; Art. XIV, § 2.5); • Establishing an education system relevant to the needs of society and the people (Art. XIV, § 1; Art. XIV, § 2.1); • Fostering patriotism and nationalism (Art. II, § 17; Art. XIV, § 3.1);

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• Teaching the rights and duties of citizenship (Art. XIV, § 3.2); • Strengthening ethical values (Art. XIV, § 3.2); • Strengthening spiritual values (Art. XIV, § 3.2); • Developing moral character (Art. XIV, § 3.2); • Allowing religious instruction without costs to taxpayers (Art. XIV, § 3.3); • Developing personal discipline (Art. XIV, § 3.2); • Encourage critical and creative thinking (Art. XIV, § 3.2); • Broadening scientific and technical knowledge (Art. XIV, § 3.2); • Promoting vocational efficiency (Art. XIV, § 3.2); • Prioritizing education, science, technology, arts, culture, sports, research and development, invention and innovation (Art. II, § 17; Art. XIV, § 10; Art. XIV, 19); The Constitutional Intent to Harness Human Capital by: • Valuing the dignity of every human person (Art. II, § 11; Art. XIII, § 1); • Promoting Filipino labor as a primary social economic force (Art. II, § 18; Art. XII, § 12); • Promoting full use of human industrialization (Art. XII, § 1); • Promoting the development entrepreneurs, professionals, technical manpower, skilled craftsmen (Art. XII, § 14); resources for

of Filipino scientists, managers, high-level workers, and skilled

• Promoting full employment (Art. II, § 9; Art. XII, § 1; Art. XIII, § 3); • Providing employment for the underprivileged homeless in urban centers (Art. XIII, § 9); and

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The Constitutional Intent to Sustain Human Capital by: • Promoting the health of the people (Art. II, § 15); • Instilling health consciousness among the people (Art. II, § 15); • Advancing a balanced and healthful ecology (Art. II, § 16); • Responding to the country’s health needs (Art. XIII, § 12); • Providing quality life for all (Art. II, § 9); • Providing a rising standard of living (Art. II, § 9); • Providing adequate social services (Art. II, § 9); • Providing decent housing for the homeless in urban centers (Art. XIII, § 9); • Accelerating social progress (Art. II, § 17); • Prioritizing reduction of social, economic, and political inequalities (Art. XIII, § 1); • Prioritizing equitable diffusion of wealth and political power (Art. XIII, § 1); • Creating economic opportunities (Art. XIII, § 2); • Recognizing the right of labor to a just share in the fruits of production (Art. XIII, § 3); • Prioritizing the common good and national benefit (Art. XIII, § 1; Art. XIV, § 12); • Serving the people (Art. II, § 4); • Promoting the general welfare (Art. II, § 5); • Sustaining the productive systems of the country (Art. XIV, § 10);

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The Constitutional Intent to Re-Generate Human Capital by: • Recognizing the Filipino family as the foundation of the nation (Art. XV, § 1); • Recognizing the sanctity of family life (Art. II, §12); • Recognizing the family as a basic social institution (Art. II, § 12); • Recognizing the family institution (Art. II, § 12); as an autonomous social

• Strengthening the solidarity of the Filipino family (Art. XV, § 1; Art. II, § 12); • Promoting the total development of the Filipino family (Art. XV, § 1); • Protecting the family (Art. II, § 12); • Defending the family from conditions that prevent their participation in planning and implementation of policies affecting the family (Art. XV, § 3.3); • Defending spouses against conditions that prevent their right to exercise responsible parenthood and to live out their religious convictions (Art. XV, § 3.1); • Defending children against conditions prejudicial to their development (Art. XV, § 3.2); • Supporting the natural and primary right of parents over their child’s moral development (Art. II, § 12; Art. XIV, § 2.2); • Protecting the inviolability of marriage (Art. XV, § 2); and • Defending the right of spouses to found a family (Art. XV, § 3.1)? In the same way that this Court has recognized the burden of intergenerational responsibility carried by the State,53 anything less than according protection to the very source of our forthcoming generations of human resource—the people themselves—is a clear denial of this intergenerational responsibility and a clear disregard for
53

Oposa v. Factoran, 224 SCRA 792, 1993.

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the abovementioned intent of the Constitution to preserve that which is most valuable to its existence. 116. Curiously, the Act itself admits how the advancement of the Act’s reproductive health policy could negatively affect population growth rate. Section 3 of the Act states: “There shall be no demographic or population targets and the mitigation, promotion and /or stabilization of the population growth rate is incidental to the advancement of reproductive health;” (§ 3.l) 117. Whether or not this effect is intended by the Act, the effect of advancing a reproductive health policy is imminent and it is real as demonstrated by the experience of other countries that have embraced a similar policy of state-subsidized family planning through the promotion of contraceptives in its various forms, as reported in various sources: • DEMOGRAPHIC WINTER IS CRIPPLING 54 ECONOMY By Stefano Gennarini, March 6, 2012 SENATE HEARING55 By Thaddeus Baklinski THE

• 'EUROPE IS DYING,' U.S. POPULATION EXPERT TELLS

• EUROPE IN DEMOGRAPHIC DENIAL56 By Samuel Gregg, January 20, 2012

AUSTRALIAN POPULATION DECLINE 'WILL HURT FIRMS'57 The New Zealand Herald, March 31, 2011

• WHAT'S REALLY BEHIND EUROPE'S DECLINE? IT'S THE BIRTH RATES, STUPID58 By Joel Kotkin, Forbes Magazine, May 30, 2012 • THE UNDER-POPULATION PROBLEM59 by Michael J. Miller
54

http://www.turtlebayandbeyond.org/2012/demography/demographicchanges-hurt-babyboomer-pockets/ 55 http://www.lifesitenews.com/news/europe-is-dying-us-population-experttells-senate-hearing/ 56 http://spectator.org/archives/2012/01/20/europe-in-demographic-denial 57 http://www.nzherald.co.nz/economy/news/article.cfm?c_id=34&objectid=107 15995 58 http://www.forbes.com/sites/joelkotkin/2012/05/30/whats-really-behindeuropes-decline-its-the-birth-rates-stupid/ 59 http://www.issuesforlife.com/Population/TheUnderpopulationProblem.htm

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• LOW BIRTH RATE HAS ECONOMIC CONSEQUENCES, PROFESSOR GARY BECKER WARNS60 Chicago Booth News, University of Chicago Booth School of Business, Feb. 28, 2009
• ECONOMIST MAGAZINE ADMITS LOW FERTILITY IS

KILLING JAPANESE ECONOMY61 By Matthew Cullinan Hoffman

• ASIAN TIGER JAPAN IS IN DANGER OF EXTINCTION62 By Brian Clowes, Ph.D., May 3, 2012 • HONG KONG FRETS OVER LOW FERTILITY RATES63 Wall Street Journal, March 27, 2012 • S. KOREA TO SPEND BILLIONS OF DOLLARS TO BOOST BIRTHRATE64
• •

TAIWAN'S SHRINKING POPULATION65 FORMER POPULATION CONTROL ADVOCATE WARNS OF SINGAPORE BIRTH DEARTH66 CiNews (Ireland), August 16, 2012 PHILIPPINES LEADS ASIAN RISE AT CHINA-JAPAN COST67 Bloomberg News, July 23, 2012

118. It bears to stress again that nowhere in the Constitution is there a population management policy through which the Act can be read into. On the contrary, while many provisions in the 1973 Constitution were substantially adapted into our Constitution, only a few were expressly “redacted,” one of which is the “population management clause”, which reads: “It shall be the responsibility of the State to achieve and maintain population levels most conducive to the national welfare.” (Art. XV, § 10, 1973 Constitution)
http://www.chicagobooth.edu/news/2009-02-28-Becker-MFI.aspx http://www.lifesitenews.com/news/economist-magazine-admits-low-fertilityis-killing-japanese-economy/ 62 http://www.hliworldwatch.org/?p=1446 63 http://blogs.wsj.com/chinarealtime/2012/03/27/hong-kong-frets-over-lowfertility-rates/ 64 http://www.google.com/hostednews/afp/article/ALeqM5i97IozUY1vx3LoG_Y qrOtFdnpSZQ?docId=CNG.1c29e0b64ef02ac621d8a8911f61ba89.3a1 65 http://www.asiaone.com/News/Latest+News/Asia/Story/A1Story20100412209823.html 66 http://www.cinews.ie/article.php?artid=10659 67 http://www.bloomberg.com/news/2012-07-22/aging-japan-chinese-workersdrive-jobs-to-southeast-asia.html
61 60

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119. While the Constitution cannot be said to expressly prohibit the State from enacting legislation that affects population levels either in a productive or restrictive manner, it goes without saying that there is no textually demonstrable constitutional justification for the affirmative exercise of government power that, on the face of the Act itself—could result in the prevention of pregnancies among a huge portion of our population. If the Act admits that its “family planning” policy could affect the population number in an indirect or unintended manner, then no amount of rhetoric or denial of accountability can justify the result itself. What cannot be done directly with intention, cannot be done indirectly by a waiver of such intention, especially in this case where the unintended consequence itself is not unforeseen by express admission of the Act itself. C. The Act’s Treatment of Life, Health, Family, and National Life in the Context of its Reproductive Health and Responsible Parenthood Mandate is Irreconcilable with the Constitution.

120. Unlike the Act, our exceptional Constitution enumerates

compelling

state

interests

and

positive

state

objectives

consistently, as demonstrated in the immediately preceding pragraphs. Thus, it is not by accident that Constitution embodies our love for life and our social responsibilities. It is not by accident that the Constitution demands the education youth for their moral, spiritual, ethical, intellectual, physical, social, and civic development. It is not by accident that the Constitution encourages personal discipline, patriotism, nationalism, and even critical thinking. It is not by accident that the Constitution fosters hope and potential upon Filipino labor as our primary social economic force. It is not by accident that the Constitution enumerates the importance of particular vocations to guide the formation of labor and directing the full employment of such labor as a component of industrialization. It is not by accident that the Constitution explicitly mentions the poor and underprivileged as playing a productive part in that labor force and preparing them for such endeavor with the directive for adequate social services, decent housing, diffusion of wealth, creation of economic opportunities, and sharing of the fruits of their labor. 121. It is also not by accident that the Constitution speaks of the value of founding families by providing a separate constitutional article on the family. It is not by accident the Constitution renders strict reverence to the bond that allows the founding of such families. Finally, it is not by accident that the Constitution explicitly reminds parents of their exceptional role in the upbringing of the nation’s next generations. Not by accident, but by design.

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122. In the same breath, it is also not by accident that the Constitution never equates social justice to any demographic program or agenda. It is also not by accident that the Constitution never qualifies the equal value of life of mother and unborn and the value it gives the institution from whence life comes forth. Not by accident; only by design—in the same way that the Constitution itself was founded with its Preamble being formulated ahead of any other provision as it is the first and only provision that enumerates those “great national purposes and aims”68 which motivated its promulgation in the first place. Not by accident, but by design.69 123. In stark contrast, if the principle of presumptive constitutionality and deference to legislative wisdom should work in favor of the Act to sustain its constitutionality, then it must be also said that it was by the design of Congress that the Act is replete with substantive contradictions when it: promotes life (§ 2, par.7) but also promotes pregnancy-preventing products (§§ 2, par. 4; 15; 10); promotes health (§ 2, par. 2) but also promotes non-medicinal/nonpalliative family planning services (§ 9); defends the founding of families (§ 2, par. 2) but promotes a viability approach before founding a family (§ 3.f.1); recognizes the value of marriage (§ 2, par. 2) but prohibits spousal involvement in reproductive health matters (§ 23.a.2.i); values the welfare of minor children (§ 2, par. 4.b) but divests parents of authority to counsel them in family planning matters (§ 7, par. 2); values human resource (§ 3.c) but massively promotes the poor to have free access to pregnancy-preventing information and supplies (§§ 11; 2, par. 5; 3.g; 19.b.2; 3.i; 7); abhors population targets but disavows any demographic changes which the Act itself expects to happen upon its implementation (§ 3.l). D. Absent a Textual Demonstration of any Constitutional Basis for the Prevention of Pregnancies, Youth Sexual Liberation, Family Vulnerability, and Population Management, the Act Cannot Claim Any Compelling State Interest, Much Less Any Legitimate Interest.70

See RECORD OF THE CONSTITUTIONAL COMMISSION, 10 June 1986 Session, Resolution No. 72: RESOLUTION PROPOSING TO ADOPT A PREAMBLE TO THE CONSTITUTION, approved on 11 June 1986 Session. 69 Ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. (Francisco v. House of Representatives, 415 SCRA 44, 2003, at 127, citing Chiongbian v. De Leon, 82 Phil. 771, 1949) 70 The Philippine Government has not ratified any human rights treaty containing any “reproductive right” or “responsible parenthood” imperative in the manner described and intended by the Act (See INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION, INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, INTERNATIONAL COVENANT ON

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124. If family planning methods operate to prevent pregnancies, then the government cannot assert a compelling state interest in facilitating access to these methods while at the same time promoting openness to life. 125. If pregnancy and childbearing are not a disease or illness that need to be treated, then the government cannot assert a compelling interest in equalizing access to and use of modern methods of family planning as a means to promote women’s health. 126. If responsible parenthood includes the alienation of minors from the guidance of parents and the alienation of spouses from each other’s decision-making relations, then the government cannot assert a compelling state interest in facilitating access to contraceptives for protecting family strength. 127. If reproductive rights involve the education of youth on the highest standards of sexuality and the attainment of a satisfying and pleasurable sex life, then the government cannot assert a compelling state interest in the reproductive health education of youth in the manner intended by the Act. 128. If reproductive health and responsible parenthood are primarily addressed to be within free reach of the poor and marginalized, then the government cannot assert a compelling state interest in alleviating the plight of the poor by encouraging a program that primarily prevents childbearing among them. III. THE MANDATES AND SANCTIONS OF THE ACT DISREGARD THE SUPREMACY OF THE CONSTITUTION BY VIOLATING CONSTITUTIONAL PRINCIPLES AND BURDENING CONSTITUTIONAL RIGHTS.

129. Constitutional supremacy can be said to be the highest “rule of law” principle we can demand the State to respect if only to be true to its constitutional duty to secure the people’s ideals and aspirations (Preamble), considering there is no other man-made directive to which we can ascribe our highest expectations for an ordered society other than the Constitution.

ECONOMIC, SOCIAL AND CULTURAL RIGHTS, CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN, CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT, CONVENTION ON THE RIGHTS OF THE CHILD, INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF T HEIR FAMILIES, and the CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES) (See also THE UNIVERSAL DECLARATION OF HUMAN RIGHTS).

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130. Whenever a constitutional claim is brought under this principle, this Court always has the last say, being the highest court of the land with power to review the constitutionality of any act of government,71 a power which this Court has exercised repeatedly involving local ordinances,72 executive and administrative actions,73 and legislative enactments.74 Thus, whenever a declaration is made by this Court striking down a law for being contrary to the Constitution, it does so not because the Court says so, but because the Constitution says so—the duty of the Court being limited to upholding the Constitution and declaring void all laws that do not conform to it. 131. In many cases where a constitutional principle was central to the determination of an issue, this Court has adopted substantive doctrinal tests under various clauses such as religious freedom, equal protection, free speech, and due process. With regard to the Act, these doctrinal tests have likewise been implicated. 132. The Act not only establishes policy, but it also mandates and prohibits actions under pain of penal sanction as a means to ensure compliance with the Act. Section 23 (and Section 24) of the Act provides a rather complicated presentation of these penal sanctions. For clarity in purpose and reference, an outline of sanctions is provided below: By Express Sanction under Section 23 • Withholding Information on Reproductive Health (§ 23.a.1) (Addressed to any Public or Private “Health Care Service Provider”); • Restricting Dissemination of Information on Reproductive Health (§ 23.a.1) (Addressed to any Public or Private “Health Care Service Provider”); • Providing Incorrect Information on Reproductive Health (§ 23.a.1) (Addressed to any Public or Private “Health Care Service Provider”); • Requiring Consent from a Non-Patient Spouse before Performing a Reproductive Health Procedure on the Patient

Constitution, Art. VIII, §§ 1, 5.2.a. City of Manila v. Hon. Laguio, Jr., 455 SCRA 308, 2005. 73 Tawang Multi-Purpose Cooperative v. La Trinidad Water District, 646 SCRA 21, 2011. 74 Macalintal v. Commission on Elections, 405 SCRA 614, 2003.
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Spouse (§ 23.a.2.i) (Addressed to any Public or Private “Health Care Service Provider”); • Requiring Consent from a Parent of a Minor before Performing a Reproductive Health Procedure on the Minor in an Emergency Case (§ 23.a.2.ii) (Addressed to any Public or Private “Health Care Service Provider”); • Requiring Consent from a Parent of a Minor Abused by the Same Parent before Performing a Reproductive Health Procedure on the Minor (§ 23.a.2.ii) (Addressed to any Public or Private “Health Care Service Provider”); • Refusing to Perform Quality Health Care Service to Any Person in an Emergency Case (§ 23.a.3) (Addressed to any Public or Private “Health Care Service Provider”); • Refusing to Perform Quality Health Care Service to Any Person in a Non-Emergency Case for Discriminating Reasons (§ 23.a.3) (Addressed to any Public “Health Care Service Provider”); • Refusing to Perform Quality Health Care Service to Any Person in a Non-Emergency Case for Discriminating Reasons (§ 23.a.3) (Addressed to any Private “Health Care Service Provider” WITHOUT a “Conscience Objection"); • Refusing to Refer a Person to another Facility for Quality Health Care Service (§ 23.a.3) (Addressed to any Private “Health Care Service Provider” WITH a “Conscience Objection”); • Prohibiting Delivery of Services for Reproductive Health or Family Planning (or Permitting a Subordinate to the Same) (§ 23.b) (Addressed to Public Officers Charged with such Duty); • Restricting Delivery of Services for Reproductive Health or Family Planning (or Permitting a Subordinate to the Same) (§ 23.b) (Addressed to Public Officers Charged with such Duty); • Forcing, Coercing, or Inducing Another to Use a Reproductive Health or Family Planning Service (or Permitting a Subordinate to the Same) (§ 23.b) (Addressed to Public Officers);

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• Refusing to Allocate, Approve, or Release Money for a Reproductive Health Care Service (or Permitting a Subordinate to the Same) (§ 23.b) (Addressed to Public Officers Charged with Such Duty); • Refusing to Support a Reproductive Health Program (or Permitting a Subordinate to the Same) (§ 23.b) (Addressed to Public Officers); • Hindering Implementation of the Act (or Permitting a Subordinate to the Same) (§ 23.b) (Addressed to Public Officers); • Suggesting, Requiring, Unduly Influencing, or Causing another to Submit to Sterilization as a Condition in Employment (§ 23.c) (Addressed to Public and Private Employers); • Suggesting, Requiring, Unduly Influencing, or Causing another to Use or Not Use a Modern Family Planning Method as a Condition in Employment (§ 23.c) (Addressed to Public and Private Employers); • Refusing or Terminating Employment Due to Pregnancy (§ 23.c) (Addressed to Public and Private Employers); • Refusing or Terminating Employment Due to Number of Children (§ 23.c) (Addressed to Public and Private Employers); • Falsifying a Certification (§ 23.d) (Addressed to any Person); • Colluding in the Procurement, Distribution, or Sale of Modern Family Planning Supplies (§ 23.e) (Addressed to any Pharmaceutical Company); By Implied Sanction under Section 24 • Refusing to Perform a Service for a Modern Family Planning Method in an Emergency Situation for a Paying or NonPaying Patient (§ 7) (Addressed to Public and Private “Health Facilities”); • Refusing to Perform a Service for a Modern Family Planning Method in a Non-Emergency Situation for a Paying or NonPaying Patient (§ 7) (Addressed to Public “Health Facilities”);

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• Refusing to Perform a Service for a Modern Family Planning Method in a Non-Emergency Situation for a Paying Patient (§ 7) (Addressed to Private “Health Facilities” that are NEITHER “Owned and Operated by a Religious Group” NOR operating as a “Non-Maternity Specialty Hospital”); • Refusing to Refer to Another Facility a Paying or Non-Paying Requestor for Modern Family Planning Service (§ 7) (Addressed to Private “Health Facilities” that ARE “Owned and Operated by a Religious Group” OR operating as a “Non-Maternity Specialty Hospital”); • Refusing to Provide Information on Natural or Artificial Family Planning Services to a Person of Legal Age (§ 7) (Addressed to all who have a Duty to Provide the Information); • Refusing to Provide Access to Natural or Artificial Family Planning Services to a Person of Legal Age (§ 7, par. 2) (Addressed to all who have a Duty to Provide Access); • Refusing to Provide Access to Modern Family Planning Methods to Minors with Written Parents’/Guardian Consent (§ 7, par. 2) (Addressed to all who have a Duty to Provide Access); • Refusing to Provide Access to Modern Family Planning Methods to a Minor Boy or Girl who is Already a Parent, regardless of Parents’/Guardian Consent (§ 7, par. 2) (Addressed to all who have a Duty to Provide Access); • Refusing to Provide Access to Modern Family Planning Methods to a Minor Girl who is Has Had a Miscarriage, regardless of Parents’/Guardian Consent (§ 7, par. 2) (Addressed to all who have a Duty to Provide Access); • Failing to Conduct Death Reviews (§ 8) (Addressed to Public Officials Charged with such Duty); • Failing to Include Contraceptives in the National Drug Formulary (§ 9) (Addressed to Public Officials Charged with such Duty); • Purchasing or Acquiring Abortifacients, Emergency Contraceptives, Post-coital Pills (§ 9) (Addressed to public officials);

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• Failing to Procure or Distribute Family Planning Supplies (§ 10) (Addressed to Public Officials Charged with such Duty); • Failing to Maximize Benefits for Serious Reproductive Health Conditions under Philhealth Plans (§ 12) (Addressed to Public Officials Charged with such Duty); • Failing to Include Coverage of Anti-Retroviral Medicines in Philhealth Plans (§ 12) (Addressed to Public Officials Charged with such Duty); • Failing to Train Barangay Health Workers to Promote Reproductive Health (§ 16) (Addressed to Public Officials Charged with such Duty); • Failing to Issue Guidelines in the Use of Contraceptives (§ 19.c) (Addressed to Public Officials Charged with such Duty); • Failing to Exercise Prudence in Advertising on Sexuality (§ 19.d) (Addressed to private corporations); • Failing to Sustain the Public Campaign for Reproductive Health and Family Planning (§ 20) (Addressed to Public Officials Charged with such Duty); and • Failing to Submit an Annual Report on Reproductive Health and Family Planning Programs (§ 21) (Addressed to Public Officials Charged with such Duty). 133. Based on this outline, we can conclude the following: In terms of WHO can be criminally liable: PUBLIC officials can be liable in their capacity as— • a provider of health care information or services in any public health facility (§§ 23.a.1; 23.a.2; 23.a.3; 23.b; 23.c); • a provider of modern family planning methods in any public health facility (§ 7); • a provider of a reproductive health procedure in his/her own profession or in connection with a private health facility (§ 23.a.2);

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• a signing, approving, releasing, implementing, procuring, purchasing, or hiring officer in any government agency or public health facility (§§ 23.b; 23.c; 9; 12; 16; 19; 20; 21); • a researching and reporting officer (§ 8); PRIVATE persons can be liable in their capacity as— • a provider of health care information or services in his/her own profession or in connection with a private health facility (§§ 23.a.1; 23.a.2; 23.a.3); • a provider of modern family planning methods in his/her own profession or in connection with a private health facility (§ 7); • a provider of a reproductive health procedure in his/her own profession or in connection with a private health facility (§ 23.a.2); • a reproductive health procedure (§ 23.a.2) • an accountable person in a corporation who causes the release of a public advertisement (§ 19.d); • an accountable person acting as an employer (§ 23.c); In terms of WHAT action/omission constitutes a crime: By failing, restricting, or refusing to communicate requested INFORMATION— • on reproductive health (§ 23.a.1); • for a referral to an alternative health facility (§§ 7; 23.a.3); • on natural or artificial family planning (§ 7). By refusing to perform or deliver a particular SERVICE for— • quality health care (§ 23.a.3; 23.b); • a modern family planning method (§ 7); • a reproductive health procedure (§ 23.a.2). • approval, allocation, or release of money to implement, procure, or purchase a required item (§ 23.b);

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• data or reports (§§ 8; 19.c; 21). In terms of HOW the action/omission constitutes a crime, by: • refusing to provide information (§ 7) • restricting dissemination of information (§ 23.a.1); • restricting delivery of a service (§ 23.b); • providing incorrect information (§ 23.a.1); • refusing to perform an act (§§ 7; 8; 23.a.3; 23.b); • failing to perform an act (§§ 9; 10; 12; 16; 19.c; 19.d; 20; 21); • hindering the implementation of the Act (§ 23.b); • requiring consent before a service is done (§ 23.a.2); • prohibiting a required act (§ 23.b); • forcing, coercing, or inducing an act upon another (§ 23.b); • suggesting, requiring, unduly influencing an act upon another (§ 23.c); • colluding with government (§ 23.e); • implementing a prohibited decision (§§ 9; 23.c); • implementing a prohibited act (§ 23.9); • withholding information (§ 23.a.1). In terms of WHEN the action/omission constitutes a crime: • in non-emergency or non-serious cases (§§ 7; 23.a.1; 23.a.2.i; 23.a.2.ii; 23.a.3; 23.b; 23.c; ); • in emergency or serious cases (§§ 7; 23.a.2;). Based on these outlines, the following constitutional claims are brought forth:

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A.

The “Referral Mandate” in Section 23.a.3 Unreasonably Burdens the Religious Freedom of Religious Conscience Objectors

134. The Act’s express accommodation for a “conscientious objector” in Section 23.a.3 may well be called the first conscience protection clause in our statute books. While the Act does not define who a conscientious objector is, the Act mandates respect for a “conscientious objection” based on his/her “ethical or religious beliefs” as a ground to exempt the objector from the health care service mandate under Section 23.a.3. What purpose does this conscience protection clause serve? If a health care service provider is asked to perform a health care service that cannot be performed without violating the provider’s ethical or religious belief, the Act recognizes the objection by excusing the objector from complying with the health care service mandate under Sec. 23.a.3. 135. However, the same section contains another mandate that implicates the same religious freedom claim sought to be protected by the conscience protection clause. As stated in Section 23.a.3, the health care service provider taking a conscientious objection is still mandated to refer the requesting party to another health facility to receive the information and service which the conscientious objector cannot, in conscience, provide (hereafter referred to as the “referral mandate”). 136. What is wrong with requiring a conscientious objector to refer a person to another health facility? The constitutional claim against the referral mandate arises due to the kind of health care service referred to in Sec. 23. According to the Act, “basic health care” includes the provision of reproductive health care services and supplies (§ 3.d). Thus, the health care mandate in Section 23.a.3 includes the provision of family planning information and services (§ 4.q.1) such as those modern family planning methods described as “contraceptives” (§§ 9; 19.c). 137. In our country where more than half the population are Catholic, and where close to half of accredited medical schools in the Philippines are either owned, operated, or supported by members or teachings of the Catholic faith,75 the conscience protection clause under Section 23.a.3 is a welcome legislative position,76 taking into
http://en.wikipedia.org/wiki/Medical_education_in_the_Philippines#List_of_A PMC_Accredited_Philippine_Medical_Schools 76 The Catholic Church has always recognized the dignity and sacredness of conscience—the Voice of God, whereby the more fully instructed one’s conscience is, the more completely and faithfully it communicates the Divine Law.
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consideration the clear doctrinal position of the Catholic Church against contraception.77 138. However, to compel the same conscientious objector to refer a party to another health facility for the purpose of addressing the party’s need to access contraceptives, amounts to requiring cooperation with the very thing a Catholic conscientious objector cannot do without violating his/her religious belief. Thus, the referral mandate requires a Catholic conscientious objector to communicate information leading another to access contraceptives which cannot be done without violating his/her religious belief against contraception.78 139. What makes the referral mandate more pernicious to the conscience of Catholic objectors is the fact that the objector cannot even provide “incorrect information” such as by “misleading” the party to a health facility that does not provide contraceptives, or known to
According to the Catechism of the Catholic Church, any action which proposes, whether as an end or as a means, to render procreation impossible— in the course of a conjugal act or otherwise—is “intrinsically evil.” (¶ 2370, quoting PAUL VI, ENCYCLICAL LETTER HUMANAE VITAE ¶ 14, July 25, 1968) Pope Pious XI reaffirmed earlier Church statements that the primary end of human sexuality is procreation and that the use of means to deprive the sexual act of the power to create life is a violation of the “law of God and of nature, such that those who indulge in such act are “branded with the guilt of a grave sin.” (ENCYCLICAL LETTER CASTI CONNUBII ¶ 56, Dec. 31, 1930). While the Church speaks with equal importance on the procreative and unitive aspects of marriage and sexuality, she continues to reaffirm the ban on artificial birth control. See [St.] John Paul II, ENCYCLICAL LETTER VERITATIS SPLENDOR ¶ 80, Aug. 6, 1993 (describing the use of contraceptives as “intrinsically evil”); [St.] John Paul II, APOSTOLIC EXHORTATION FAMILIARIS CONSORTIO ¶ 32, Dec. 15, 1981 (discussing the unitive and procreative aspects of marriage and proscribing the use of contraception); HUMANAE VITAE ¶¶ 12, 14 (describing the fundamental connection between the unitive and procreative meanings of the conjugal act and declaring “that the direct interruption of the generative process already begun . . . [is] to be absolutely excluded as [a] licit means of regulating birth”); SACRED CONGREGATION FOR THE DOCTRINE OF THE FAITH, DECLARATION ON CERTAIN QUESTIONS CONCERNING SEXUAL ETHICS ¶ 10, at 11, Dec. 29, 1975 (stating that the use of artificial birth control constitutes a “mortal sin”). 78 The Catholic Church teaches that a person can cooperate in the commission of a moral evil even if he/she does not have the same intention as the principal actor. Formal cooperation is carried out when the moral agent cooperates with the immoral action of another person, sharing in the latter's evil intention. On the other hand, when a moral agent cooperates with the immoral action of another person, without sharing in the intention, it is a case of material cooperation. Formal cooperation is always morally illicit because it represents a form of direct and intentional participation in the sinful action of another person. (A. Fisher. "Cooperation in Evil." Catholic Medical Quarterly, 1994, pages 15 to 22) Material cooperation can sometimes be illicit — depending on the conditions of the "double effect" or "indirect voluntary" action — but when immediate material cooperation concerns grave attacks on human life, it is always to be considered illicit, given the precious nature of the value in question. ([St.] John Paul II, ENCYCLICAL LETTER EVANGELIUM VITAE ¶ 74).
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provide only natural family planning information—an act which is explicitly proscribed under Section 23.a.1 with imprisonment of up to six (6) months or a fine of up to P100,000.00 (§§ 23.a.1; 24). 140. And while it may be said that the referral mandate does not force a religious conscientious objector to endorse contraceptives, but merely suggests the performance of a “second opinion” referral normally performed by health practitioners, this argument presents a rhetorical dualism that ignores the need to act consistently with one’s belief. As in most religious missions, Catholic evangelization requires a believer to speak and act in accordance with the teaching of the Faith. When a conscientious religious objector communicates an objection to contraceptives but at the same time refers a person to a facility that provides such service, has effectively expressed in speech what in conscience he/she cannot do. Thus, to require a Catholic believer to disclose information as to where the requesting party can still receive information or services on contraception, is to facilitate access to a matter that the Catholic health service provider believes to be morally evil. 141. The constitutional claim against the referral mandate now becomes clear: because of the narrow and unreasonable conscience protection clause under Section 23.a.3, the referral mandate violates the Constitution when it substantially burdens religious freedom, which includes the freedom not to cooperate in the performance of an immoral act such as leading a person toward conditions conducive to the commission of such act. 142. As it stands, the referral mandate in Section 23.a.3 burdens the exercise of religious freedom of a Catholic religious objector by placing him/her in a situation of choosing to face criminal prosecution under the Act, or choosing to disregard one’s religious beliefs—both options having grave legal, social, emotional, psychological, ethical, and spiritual consequences. B. The Narrow Conscience Protection Clause Unreasonably Burdens the Religious Freedom of Religious Conscience Objectors.

143. While the Act recognizes a conscience objection under Section 23.a.3, it unreasonably denies this protection for other mandates under the Act that substantially burden religious freedom in even more serious and restrictive ways, such as— • requiring health care service providers to reproductive health and family planning (§ 23.a.1); promote

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• requiring health care service providers to provide reproductive health procedures on a patient-spouse (§ 23.a.2.i); • requiring all health care service providers to provide reproductive health procedures upon a minor boy/girl who is already a parent, or a minor girl who has had a miscarriage (§ 23.a.2.ii); • requiring public health facilities to provide family planning methods (§ 7); • requiring public officers to fully implement the programs of the Act from the allocation of funds to the procurement and distribution of reproductive health and family planning services and supplies (§§ 23.b; 9; 10; 12; 16; 19.c; 20). 144. Why is it that the Act provides a conscience protection clause under Section 23.a.3 but not in the other mandates outlined above? It bears to stress that the health care service mandate under Section 23.a.3 involves the provision of the same reproductive health and family planning information, methods and supplies referred to in the other mandates. 145. If the mere act of referring a person to an alternative health facility to access contraceptives is already burdensome to the exercise of the religious belief of Catholic conscience objectors, what more burden will these objectors be made to suffer in those cases where they are charged to deliver and serve pregnancy-preventing mechanisms y their own hands and through the exercise of their own professions? And under pain of imprisonment if they refuse to do so? 146. As it stands, the other mandates outlined above burden the exercise of religious freedom of a Catholic religious objector by placing him/her in a situation of choosing to face criminal prosecution under the Act, or choosing to disregard one’s religious beliefs—both options having grave legal, social, emotional, psychological, ethical, and spiritual consequences. 147. If these mandates are sustained without the necessary conscience protections, the conscience protection clause in Section 23.a.3 of the Act comes out as “meaningless” for Catholic conscience objectors because they are eventually forced to comply with the same objectionable mandates in other provisions of the Act—without exception.

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C.

The Absence of a Conscience Protection Clause for Public Health Care Service Providers Unreasonably Discriminates Against Public Service Workers’ Right to Religious Freedom.

148. Catholic religious objectors are motivated by the same religious beliefs no matter where they are employed or wherever they are called to render public or private service. This premise brings to light a constitutional claim under both the equal protection and free exercise clause insofar as public health providers are concerned, considering that the Act does not provide a conscience protection exemption for health care service providers working for the government. 149. Based on the Act, a public “health care service provider” is mandated to— • provide information on reproductive health (§ 23.a.1); • provide services on reproductive health procedures (§§ 23.a.2.i; 23.a.2.ii); • provide services for health care (§ 23.a.3); • facilitate the delivery of reproductive health care and family planning services (§ 23.b); • provide modern family planning methods79 (§ 7); while public officers are prohibited from hindering the procurement and distribution of family planning services and supplies in the course of his duties (§§ 23.b; 23.c; 9; 12; 16; 17; 19; 20; 21). 150. Except for the mandate in Section 23.a.3, no conscience protection exemption is recognized by these provisions. Simply put, the information mandate in Section 23.a.1, the reproductive health procedure mandate in Section 23.a.2, and the family planning method mandate in Section 7 all require ministerial compliance from concerned public personnel, without exception. And in order to ensure the unhampered performance of their duties to the public, the Act proscribes, under pain of imprisonment, any act that would hinder the full implementation of any reproductive health or responsible parenthood program. 151. Thus, based on the Act, Congress has determined to allow a conscience protection clause (albeit an unreasonably narrow
79

Addressed particularly to public “health facilities.”

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clause) for private health care service providers, but not for their public service counterparts. It bears to stress that the only demonstrable distinction between these contrasting treatments is that private health care service providers do not receive public funds for their services, while public health care service providers receive public funds to carry out their functions. This distinction immediately raises a constitutional claim under the equal protection clause considering that there is no substantial distinction between the health care services mandated under Section 23.a.3 and the other mandates outlined above, insofar as the Catholic religious objection to contraceptives is concerned. Neither is public or private sector employment a substantial distinction to deny persons the enjoyment of fundamental liberties which they would otherwise have even in the absence of a Constitution.80 152. Why is there no substantial distinction between the health care services in Section 23.a.3 and the other services in Section 23.a1 and 23.a.2? Because they all involve the provision of information and services for family planning methods, which, in the context of Catholic religious objectors, imposes the same burden on the exercise of their religious freedom whatever way they are to be promoted. Thus, whether it requires the provision of health care services81 under Section 23.a.3, or the provision of reproductive health information and procedures under Section 23.a1 and 23.a.2, the Catholic religious objector is brought to bear the burden of complying with these mandates to avoid imprisonment at the cost of disregarding one’s religious beliefs against the promotion and use of modern family planning methods. 153. If the other mandates outlined above are sustained without regard for the kind of conscience objections discussed above, the Act shall have been the first legislative measure to effectively strip public health care providers of their right to raise religious objections in the provision of contraceptives—a substantially burdensome and unconscionable cost for public health care service providers to pay, and a burdensome disincentive to those who wish to enter public service, to say the least.82
See the Separate Opinion of then Associate Justice Reynato S. Puno in Republic of the Philippines v. Sandiganbayan, 407 SCRA 10, 2003. 81 Which includes the provision of reproductive health care services and supplies, family planning information and services (§ 4.q.1) and contraceptives (§§ 9; 19.c). 82 This is in contrast to the numerous conscience protection clauses found in many federal laws of the United States that extend to public service workers in a range of activities including abortion, sterilization, contraception, executions, and military service. See PUBLIC HEALTH SERVICE ACT 42 U.S.C. § 300a-7(b); 42 U.S.C. § 300a-7(c); 42 U.S.C. § 300a-7(e); 42 U.S.C. § 238n; LEGAL SERVICES CORPORATION ON ABORTION 42 U.S.C. § 2996f(b); PROTECTING HEALTH CARE
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D.

The Act Unreasonably Discriminates Against Unorganized Religious Adherents By Allowing a Narrow Religious Accommodation under Section 7.

154. Section 7 of the Act mandates private health facilities to provide a full range of modern family planning methods to paying patients, subject to what is called a “religious accommodation.” Based on the Act, if a hospital is owned and operated by a religious group, it is not required to provide these services. 155. While this “religious accommodation clause” is a welcome effort to recognize the protection of conscience objections in the institutional level of religious groups, it suffers from an equal protection violation considering that it unreasonably disregards the conscience rights of individuals who own and operate health facilities but are not considered as institutionalized religious groups. In other words, the religious accommodation clause in Section 7 unreasonably discriminates against individuals or groups who are not part of an organized religious group, but adhere to the same religious tenets and beliefs of religious groups. 156. This constitutional claim should not be difficult to consider because not all hospitals are owned and operated by religious groups
ENTITIES THAT DECLINE TO PERFORM OR REFER FOR ABORTIONS FOR ANY REASON (1996) 42 USC § 238n; NEUTRALITY WITH RESPECT TO ABORTION 20 U.S.C. § 1688; PUBLIC HEALTH SERVICE ACT 42 U.S.C. § 300a-7(b); 42 U.S.C. § 300a-7(c); 42 U.S.C. § 300a-7(e); TREASURY AND GENERAL GOVERNMENT APPROPRIATIONS ACT, 2002, Pub. L. No. 107-67, § 641, 115 Stat. 514, 554-5; CONTRACEPTIVE COVERAGE (FEDERAL EMPLOYEES) Sec. 635(c) of Title VI of Division J (Treasury and General Government Appropriations) of the Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7, 117 Stat. 11, 472; REFUSAL TO PARTICIPATE IN EXECUTIONS OR IN PROSECUTION OF A CAPITAL CRIME, 18 U.S.C. § 3597(b); THE MILITARY SELECTIVE SERVICE ACT, 50 U.S.C.A. app. 451-471a; DEPARTMENT OF DEFENSE DIRECTIVE Number 1300.6. August 21, 1971, Conscientious Objectors; MEDICAID COUNSELING AND REFERRAL 42 U.S.C. § 1396u-2(b)(3); REGULATION PROHIBITING COMPULSORY ADVOCACY 48 CFR § 1609.7001 (c)(7); CIVIL RIGHTS RESTORATION ACT 20 U.S.C. §1688; FOREIGN AID FOR FAMILY PLANNING [Title II of Division E (FOREIGN OPERATIONS, EXPORT FINANCING AND RELATED PROGRAMS APPROPRIATIONS RESOLUTION, 2003, Public L. No. 108-7, 117 Stat.11, 163; EXEMPTION FROM VACCINATION REQUIREMENT 8 U.S.C. §1182 (g); UNITED STATES LEADERSHIP AGAINST HIV/AIDS, TUBERCULOSIS, AND MALARIA ACT OF 2003 Pub. L. No. 108-25, 117 Stat. 711, at 733; Congressional intent regarding a DC contraceptive mandate Sec. 127 of Title III of Division C (District of Columbia Appropriations) of the Consolidated Appropriations Resolution, 2003, Pub. L No. 108-7, 117 Stat. 11, 126-27. (See http://www.dtic.mil/whs/directives/corres/pdf2/d13006p.pdf and http://www.consciencelaws.org/Conscience-Laws-USA/Conscience-Laws-USA01a.html.

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as there are hospitals owned and operated by persons or institutions that are merely members of a religion in their individual right, but who nonetheless conform to the same religious beliefs carried by organized religious groups. Thus, a health facility may not be owned or operated by a religious group, but is owned and/or operated by individuals who have deeply-held religious beliefs similar to those individuals who comprise a religious group. 157. Thus, based on the Act, Congress has determined to accommodate the beliefs of religious groups but not of individual or unorganized adherents of the same belief. It bears to stress that the only demonstrable distinction between these contrasting treatments is that religious groups are organized, while the rest are unorganized. This unreasonable distinction immediately raises a constitutional claim under the equal protection clause considering that at no time in our constitutional and legal regime has there been a state-sanctioned preference for organized religions over unorganized religions insofar as the free exercise clause is concerned. 158. Why is there no substantial distinction between the religious beliefs of religious groups and the individual beliefs of adherents to those similar religions? Because they are all believers with a conscience operating in unison with their religious beliefs. And the fact that a religious group is organized does not expand the religious freedom protections accorded under the free exercise clause of the Constitution. Neither should the constitutional protection for religious belief and action diminish in worth just because a person is not acting as part of a religious group. 159. If the Act is sustained, it would be the first legislative measure to treat the religious freedom of religious groups above those of unorganized religious believers. E. The “Referral Mandate” in Section 7 Unreasonably Burdens the Religious Freedom of Religious Groups.

160. Section 7 contains a referral mandate similar to Section 23.a.3 by requiring a referral action addressed to the religious objector, or in the case of Section 7, addressed to a hospital owned and operated by a religious group (hereafter referred to as the “exempt religious hospital”). The only difference between the referral mandate in Section 7 and the one in Section 23.a.3 is that the former relates to the provision of “modern family planning methods” by health facilities such as hospitals, while the latter relates to the provision of “health care services” by health care service providers in general.

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161. However, for purposes of this religious freedom claim, these differences are immaterial. The essence of the constitutional claim against the referral mandate in Section 7 arises due to the kind of service referred subject of the referral mandate, which is the provision of modern family planning methods. 162. Thus, while the religious accommodation clause under Section 7 is a welcome legislative position, the referral mandate still compels the same exempt religious health facility to refer a party to another health facility for the purpose of addressing the party’s need to access modern family planning methods. As a result, the religious owned-and-operated health hospital is required by the Act to cooperate with the very thing a religious group objector cannot do without violating their religious beliefs. 163. What makes the referral mandate in Section 7 more pernicious to religious freedom is the fact that the exempt hospital cannot even provide “incorrect information” such as by “misleading” the party to a health facility that does not provide contraceptives, or known to provide only natural family planning information—an act which is explicitly proscribed under Section 23.a.1 with imprisonment (§§ 23.a.1; 24). 164. And while it may be said that the referral mandate does not force a religious group to endorse contraceptive use, but merely suggests the performance of a “second opinion” referral normally performed by health practitioners, this argument attempts to create a rhetorical dualism that ignores the need to act consistently with one’s belief. As in most religious missions, evangelization requires a Catholic to act in accordance with the teaching of the Faith. One evangelizes not merely by what one says, but, more importantly, by what one does, such that a conscientious objector who communicates an objection to contraceptives but still refers a person to a facility that provides contraceptives has effectively expressed in speech what in conscience cannot be done in conduct. Thus, to force the believer to disclose information as to where the requesting party can still receive information or services on contraception, is to facilitate access to a matter that the Catholic health service provider believes to be morally evil. 165. The constitutional claim against the referral mandate now becomes clear: it violates the Constitution when it substantially burdens the religious freedom of religious groups, which includes the freedom not to cooperate in the performance of an immoral act such as leading a person toward conditions conducive to the commission of such act.

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166. As it stands, the referral mandate in Section 7 burdens the exercise of religious freedom of a Catholic group by placing its members in a situation of choosing to face criminal prosecution under the Act, or choosing to disregard one’s religious beliefs83—both options having grave legal, social, emotional, psychological, ethical, and spiritual consequences. F. The “Information Mandate” in Sec. 23.a.1 Unreasonably Compels Content-Based Speech.

167. The Act provides three kinds of “information mandates” to ensure the execution of its message and program (§ 23.a.1). These mandates operate by proscribing three kinds of speech actions (or inactions): • withholding government-determined information with knowledge (hereafter referred to as the “non-withholding mandate”) • restricting dissemination of government-determined information (hereafter referred to as the “non-restriction mandate”) • providing incorrect information with intention (hereafter referred to as the “correct information mandate”) 168. While these information mandates are couched in negative terms, the positive actions required are clear: the nonwithholding mandate requires the full communication of information; the non-restriction mandate requires the unimpeded communication of information; and the correct information mandate requires the communication of what the state considers as “correct information.” 169. Thus, to avoid prosecution under Section 23.a.1, health care service providers must provide all correct information on any program or service for reproductive health upon request of a patient or customer, and it must be done in the most unimpeded manner. In other words, Section 23.a.1 compels what information to provide and to what extent to provide it. And since the content of the information mandate pertains to the reproductive health programs and services
In 2008, the UNFPA, a global advocate of contraception use and population control, and partner of the Department of Health in the procurement of modern family planning commodities) published a “Population and Reproductive Health” report discussing the country’s efforts to legislate a reproductive health law, attributing much of its dissatisfaction to the “threat” posed by the “strong church opposition” to artificial family planning. (See SITUATION OF THE PHILIPPINE POPULATION & REPRODUCTIVE HEALTH ANALYSIS, 2008, pp. 64-68 at http://www.unfpa.org.ph/index.php/publications/254-2008-situation-of-thephilippine-population-a-reproductive-health-analysis.
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promoted by the Act, all the information sought to be communicated under this provision is state-mandated. 170. Why should these mandates raise a free speech claim? How can these mandates violate the free speech clause? The Act’s information mandates raise a free speech claim because (1) the speech is compelled and (2) the content of the speech is determined by the State. In other words, nothing is left for the speaker to do but to communicate the state-determined information under pain of criminal sanction. 171. While the concept of compelled speech is a novel constitutional claim in our case law, its implications on free speech is not foreign to our constitutional moorings. In the First Amendment cases in the United States, the free speech guarantee includes both the right to speak and the right not to speak,84 such that “compelled statements of opinion” as well as “compelled statements of fact” are violative of the right not to speak, considering that “either form of compulsion burdens free speech.”85 172. Thus, when the Act compels the communication of statedetermined ideas and opinions to ensure the delivery of the state’s message of providing reproductive health, the Act engages in content-based compelled speech. 173. In the case of medical professionals or health care providers, the protection against compelled speech is not diminished merely because the speech is required in the exercise of a regulated profession. A speaker’s free speech rights are not lost merely because the speaker is acting in the exercise of a regulated profession, and advise given in the course of a regulated professional practice is no less an expression of one’s professional knowledge. While admission to the practice of regulated professions is subject to competence requirements, this does not sanction the state to implicate other substantive rights enjoyed by regulated health professionals—rights which they did do not leave outside the door of their health clinics, such as the right to free speech.86
Wooley v. Maynard, 430 U.S. 705, 714, 1977. Riley v. National Federation of the Blind, 487 U.S. 781, 798, 1988; see also Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256, 1974. 86 This Court has established its interest in preserving the aims of the medical profession, that is: to promote their responsibility to be vigilant in attending to a patient’s health (Mendoza v. Casumpang, G.R. No. 197987, March 19, 2012). By burdening health practitioners with the duty to provide “correct” information based on what the government has determined, the Act has effectively compromised the professional responsibility of a health practitioner to be vigilant to the health needs of patients—a responsibility which is best served within the physicianpatient confidence.
85 84

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174. It goes without saying that the subjects of “reproductive health” and “responsible parenthood” are in themselves issues charged with ideological, philosophical, moral, ethical, and scientific disagreement, with the Act itself having gone through more than a decade of debates in both houses of Congress. This means that no matter how factual the compelled information is or how “correct” the state’s position is as regards the programs and services subject of the information, it does not diminish the fact that “reproductive health” and “responsible parenthood” will never loose its character as “ideological speech”—ideological in a sense that it will always involve the communication of a “point of view” on matters of opinion and the adoption of a position on questions of politics,87 religion, and morality. 175. But is compelled speech absolutely prohibited by the free speech clause? No. But government-compelled speech to be constitutionally permissible must meet the highest standard of scrutiny: it must be narrowly tailored to serve a compelling state interest.88 Thus, a law restricting or compelling speech is narrowly tailored if it is the least speech-restrictive means to accomplish the government’s interest.89 176. Is the information mandate in Section 23.a.1 the least restrictive means to accomplish the objective of the State to provide information on reproductive health programs and services? The answer to this question is apparent: if the threat of criminal sanction is
“With only six session days left before Congress goes on a Christmas break, the Palace countered heavy lobbying by Catholic Bishops by warning lawmakers that they would not get up to P280 million in pork barrel if they fail to support the reproductive health bill…” “…`The counter-offer was made because the Palace and the House leadership are alarmed by the powerful pressure of the Catholic bishops on the lawmakers to prevent the passage of the RH bill`, said ACT Teachers Rep. Antonio Tinio, a co-author of the bill…” “…`We were told that the Palace will release the second and last tranche of the pork barrel for this year this month and will also advance this month the first tranche intended for the first semester of 2013 to avoid these funds from being covered by the election ban,` Tinio told the Manila Standard.” “…As in the impeachment trial of Chief Justice Renato Corona earlier this year, Tinio said, lawmakers were told: `If you are not with President Aquino on this, you are against us…If my colleagues in the LP and other members of the majority coalition would continue to defy the President’s clear position to put the RH bill to a vote, they would find themselves without projects to show their constituents and their voters`, Tinio said…” (“Palace dangles `pork` against Church lobby,” by Christine F. Herrera and Maricel V. Cruz, MANILA STANDARD TODAY, December 6, 2012, p. 1) (See http://www.scribd.com/doc/115605307/Manila-Standard-Today-ThursdayDecember-6-2012-Issue). 88 See, e.g., Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 655, 1990; Shelton v. Tucker, 364 U.S. 479, 1960. 89 See, e.g., Rutan v. Republican Party, 497 U.S. 62, 74, 1990; Sable Communications v, FCC, 492 U.S. 115, 126, 1989.
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the most heightened and compelling means to ensure a course of action in any context, then in no sense can the information mandate of Section 23.a.1 be considered the least restrictive means. On the contrary, the Act has admittedly chosen the most restrictive means— for what else will be left of a violator of Section 23.a.1 but to fear for his liberty? Isn’t criminal prosecution and imprisonment the highest form of imposition of government power, having a direct effect on life, liberty, and property? 177. If the information mandate in Section 23.a.1 is sustained, the Act shall be the first ever compelled speech statute that allows the State to burden free speech without any limitation on its restrictions. G. The Act Sanctions Crimes that are Vague. a constitutional principle based on that the State imposes upon itself standards before it can legitimately protection of a person’s life, liberty, or

178. Due process is fairness and justice, such substantive and procedural exercise its powers to deny property.

179. Due process applies to criminal statutes in such a way as to ascertain that no person is called to answer for a crime he could not have reasonably avoided or defended against because of the vagueness of its proscriptions. Considering that no person is presumed to have independent knowledge of the facts constituting a criminal offense,90 the vagueness of a penal provision can be overcome only if the elements of the criminal act are capable of definitive description as revealed by the text of the penal statute alone. 180. With regard to the penal provisions of Sections 23 and 24 of the Act, a due process claim exists in numerous forms in view of the obvious vagueness accompanying the various criminal acts punishable under these provisions. For clarity in purpose and reference, the various criminal acts under these provisions are outlined as follows: Under Section 23.a.1 (1) WHO: HOW: WHAT: WHO:
90

public or private health care service provider knowingly withholding information on reproductive health programs or services public or private health care service provider

(2)

People of the Philippines v. Rama, 374 SCRA 447, 2002.

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HOW: WHAT: (3) WHO: HOW: WHAT:

knowingly restricting dissemination of information on reproductive health programs or services public or private health care service provider intentionally providing incorrect information on reproductive health programs or services

Under Section 23.a.2 (4) WHO: HOW: WHAT: WHY: WHO: HOW: WHAT: WHY: WHO: HOW: WHAT: WHY: public or private health care service provider refusing to perform reproductive health procedure on a married person for lack of consent of spouse public or private health care service provider refusing to perform reproductive health procedure on abused minor for lack of consent of abusive parent public or private health care service provider refusing to perform reproductive health procedure on a minor, in an emergency case or serious case91 for lack of parental consent

(5)

(6)

Under Section 23.a.3 (7) WHO: HOW: WHAT: WHY: WHO: HOW: WHAT: (9) WHO: HOW: WHAT: public or private health care service provider92 refusing to extend quality health care service on account of discriminating grounds93 public or private health care service provider with a religious or ethical objection against the service refusing to refer a person to another health care service provider public or private health care service provider with a religious or ethical objection against the service refusing to extend quality health care service in an emergency case or serious case94

(8)

Under Republic Act No. 8344. Without a religious or ethical objection. 93 Marital status, gender, age, religious conviction, personal circumstances, or nature of work. 94 Under Republic Act No. 8344.
92

91

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Under Section 23.b (10) WHO: HOW: WHAT: (11) WHO: HOW: WHAT: (12) WHO: HOW: WHAT: (13) WHO: HOW: WHAT: (14) WHO: HOW: WHAT: (15) WHO: HOW: WHAT: (16) WHO: HOW: WHAT: (17) WHO: HOW: WHAT: (18) WHO: HOW: WHAT: (19) WHO: HOW: WHAT: public officer or subordinate prohibiting the delivery of a reproductive health care service public officer or subordinate restricting the delivery of a reproductive health care service public officer or subordinate forcing another to use a reproductive health care service public officer or subordinate coercing another to use a reproductive health care service public officer or subordinate inducing another to use a reproductive health care service public officer or subordinate refusing to allocate a budget for a reproductive health care service public officer or subordinate refusing to approve the budget for a reproductive health care service public officer or subordinate refusing to release the budget for a reproductive health care service public officer or subordinate refusing to support a reproductive health program public officer or subordinate hindering implementation of a reproductive health program

Under Section 23.c (20) WHO: HOW: public or private employer suggesting, requiring, unduly influencing, or

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WHAT:

causing another to submit to sterilization as a condition for employment, continued employment, promotion, or availment of a benefit public or private employer suggesting, requiring, unduly influencing, or causing another to use a modern method of family planning as a condition for employment, continued employment, promotion, or availment of a benefit public or private employer suggesting, requiring, unduly influencing, or causing another not to use a modern method of family planning as a condition for employment, continued employment, promotion, or availment of a benefit public or private employer refusing to employ a woman for reason of her pregnancy public or private employer terminating the employment of a woman for reason of her pregnancy public or private employer refusing to employ a person for reason of his/her number of children public or private employer terminating the employment of a person for reason of his/her number of children

(21) WHO: HOW: WHAT:

(22) WHO: HOW: WHAT:

(23) WHO: HOW: WHAT: (24) WHO: HOW: WHAT: (25) WHO: HOW: WHAT: (26) WHO: HOW: WHAT:

Under Section 23.d (27) WHO: HOW: WHAT: any person falsifying certificate of compliance under Section 15

Under Section 23.e (28) WHO: HOW: WHAT: officer of pharmaceutical company directly or indirectly colluding with a government official in procuring modern family planning supplies, products or devices

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(29) WHO: HOW: WHAT: (30) WHO: HOW: WHAT:

officer of pharmaceutical company directly or indirectly colluding with a government official in distributing modern family planning supplies, products or devices officer of pharmaceutical company directly or indirectly colluding with a government official in selling modern family planning supplies, products or devices

Under Section 7, in relation to Section 24 (31) WHO: HOW: WHAT: (32) WHO: HOW: WHAT: public health facility refusing to provide methods, advice, supplies and procedures on modern family planning to paying/indigent patients non-exempt private health facility95 refusing to provide methods, advice, supplies and procedures on modern family planning to paying patients in non-emergency cases non-exempt private health facility refusing to provide methods, advice, supplies and procedures on modern family planning to paying/indigent patients in an emergency or serious case96 exempt private health facility97 refusing to provide methods, advice, supplies and procedures on modern family planning to paying/indigent patients in an emergency or serious case98 exempt private health facility99

(33) WHO: HOW: WHAT:

(34) WHO: HOW: WHAT:

(35) WHO:
95

Only two kinds of health facilities are exempt from this mandate: (1) nonmaternity specialty hospitals and (2) hospitals that are owned and operated by a religious group even if offering maternity services. 96 See Republic Act No. 8344. 97 Non-maternity specialty hospitals and hospitals that are owned and operated by a religious group. 98 See Republic Act No. 8344. 99 Non-maternity specialty hospitals and hospitals that are owned and operated by a religious group.

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HOW: WHAT: (36) WHO: HOW: WHAT: (37) WHO: HOW: WHAT: (38) WHO: HOW: WHAT: (39) WHO: HOW: WHAT:

refusing to refer a person to another health facility conveniently accessible public health facility refusing to provide information or access to modern methods of family planning to any person of legal age public health facility refusing to provide information on modern methods of family planning to any minor with or without parental consent public health facility refusing to provide access to modern methods of family planning to any minor with written parental consent public health facility refusing to provide access to modern methods of family planning to a minor girl who has had a miscarriage, with or without parental consent public health facility refusing to provide access to modern methods of family planning to a minor boy or girl who is a parent, with or without consent of the minor’s parents

(40) WHO: HOW: WHAT:

Under Section 9, in relation to Section 24 (41) WHO: HOW: WHAT: (42) WHO: HOW: WHAT: public officer failing to include contraceptives in the National Drug Formulary public officer purchasing or acquiring emergency contraceptives, post-coital pills, abortifiacients and its equivalent

Under Section 10, in relation to Section 24 (43) WHO: HOW: WHAT: public officer failing to procure or distribute family planning supplies to all Local Governments

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Under Section 12, in relation to Section 24 (44) WHO: HOW: WHAT: Philhealth officer failing to provide maximum Philhealth benefits for serious and life-threatening reproductive health conditions

Under Section 15, in relation to Section 24 (45) WHO: HOW: WHAT: public officer issuing a Marriage License without a Certificate of Compliance from the Family Planning Office

Under Section 16, in relation to Section 24 (46) WHO: HOW: WHAT: local government officer failing to train barangay health workers for the promotion of reproductive health

Under Section 17, in relation to Section 24 (47) WHO: HOW: WHAT: Philhealth officer accrediting a public or private reproductive health care service provider without proof of completing 48-hours pro bono service annually to indigent/low-income patients

Under Section 19.c, in relation to Section 24 (48) WHO: HOW: WHAT: FDA officer failing to issue strict guidelines on the use of contraceptives

Under Section 20, in relation to Section 24 (49) WHO: HOW: WHAT: DOH and local government officer failing to initiate or sustain a nationwide multi-media promotional campaign of the programs under the Act

Under Section 21, in relation to Section 24 (50) WHO: HOW: WHAT: DOH officer failing to submit an annual report to the President and Congress

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181. It bears to stress that the foregoing outline is not a product of any “plain reading” of the Act. As this Honorable Court will realize, these fifty (50) kinds of criminal violations are not all plainly described or enumerated in the Act. If the elements of all these possible criminal violations are properly enumerated, then the Act should span twice its current length. In fact, the criminal acts described in numbers (1) to (30) are sourced from Section 23 alone, which consists of only nine paragraphs—an unusually economical way to cram thirty distinct criminal violations. As regards the other criminal acts, these are sourced from other mandatory provisions of the Act, in relation to the catch-all penal clause in Section 24 penalizing “[a]ny violation of this Act xxx,” and in addition to the “foregoing prohibited acts [in Section 23].” 182. For purposes of the due process claim, the following criminal actions are challenged for vagueness: Regarding the criminal violations addressed to a “private health care service provider” under (1), (2), (3), (4), (5), and (6). 183. Who is a “private health care service provider?” While it is clear that a public health care service provider is covered by these criminal violations as defined in Section 4.n. of the Act, no similar definition is provided for a “private” health care service provider. If the prohibited acts under Section 23 are also addressed to a private health care service provider, how can these acts be avoided if there is no clear description of WHO are considered as “private health care service providers?” 184. And assuming that criminal liability can attach upon an actor by mere implication from the text of a penal statute, is it sufficient to conclude that a “private” health care service provider is one who performs the same services described under the definition of a “public health care service provider?” If so, then a “private” health care service provider must be understood to include: a private health care institution; a doctor of medicine; a nurse; a midwife; and a private volunteer health worker. 185. If that is the intention of the Act, then a substantial vagueness challenge arises insofar as a “private health care institution” is concerned when we take into consideration the religious accommodation granted to a religious group under Section 7. As earlier discussed, Section 7 exempts hospitals owned and operated by a religious group from complying with the family planning service mandate described therein. However, by implication under Section

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23, a “private” health care institution includes any “private health care institution.” If so, does it follow that a hospital owned and operated by a religious group otherwise exempt under Section 7 is now required to comply with the information mandates in Section 23? This uncertainty is unavoidable considering that a hospital is a kind of “health care provider” as expressly defined under Republic Act No. 7875 (as amended by R.A. 9241).100 186. This vagueness is no trivial matter considering that a religious freedom claim is directly implicated insofar as hospitals owned and operated by a religious group is concerned. Are religiousexempt hospitals covered by the term “private health care service provider” for purposes of the criminal violations numbered (1), (2), and (3), (4), (5), (6), (7), (8), and (9)? 187. Does this mean that a religious-exempt hospital is exempt from delivering “modern family planning methods” under Section 7, and at the same time mandated to provide information on the same modern family planning methods under Section 23.a.1? If so, then this heightens the contradiction of the Act when it comes to providing a religious accommodation for religious groups such that their religious beliefs are respected when they are exempt from delivering modern family planning methods, but are not respected when they are mandated to provide information on the same methods? 188. Does this also mean that a religious-exempt hospital is exempt from delivering “modern family planning methods” under Section 7, and at the same time mandated to provide reproductive health procedures under Section 23.a.2? If so, then this heightens the contradiction of the Act when it comes to providing a religious accommodation for religious groups such that their religious beliefs are respected when they are exempt from delivering modern family planning methods, but are not respected when they are mandated to provide reproductive health procedures which includes the same methods?

Section 4 of R.A. 7875, as amended, provides the only statutory definition of a “Health Care Provider,” which includes a “health care institution xxx where there are installed beds, cribs, or bassinets for twenty-four hour use or longer by patients in the treatment of diseases, injuries, deformities, or abnormal physical and mental states, maternity cases or sanitarial care; or infirmaries, nurseries, dispensaries, rehabilitation centers and such other similar names by which they may be designated x x x.” (Section 4.1)

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Regarding the criminal violations for withholding or restricting information, or providing incorrect information under (1), (2), and (3). 189. What information? While it is clear that the Act mandates an “open-information” policy insofar as reproductive health programs and services are concerned, the content of that information mandate is not clearly set out in the text of the Act itself. 190. If the criminal acts in Section 23.a.1 are a function of the particular information known to the public, then what is the content of that body of information? How can a person avoid withholding information when there is no body of information to be used as basis to determine what information is being withheld? How can a person avoid restricting the dissemination of information when there is no body of information to be used as basis to determine what information must be disseminated ? How can a person avoid providing incorrect information when there is no body of information to be used as basis to determine what information is correct? 191. These questions are not just rhetoric because nowhere in the Act is there reference to the establishment of an “information commission” or “information clearinghouse body” or whatever sort of standard-bearing mechanism. At best, the Act allows the Food and Drug Administration to establish guidelines in the use of contraceptives (§ 19.c) and to determine which contraceptives are abortifacient (§ 9.2). But what about information pertaining to all the other subjects scattered all over the Act, such as information on family planning, responsible parenthood, gender equality, gender equity, international human rights instruments, maternal health, sexual health, sustainable human development, to name a few? Surely the DOH and FDA are not the only agencies to be tapped to provide the correct information on all these matters. Maybe the Department of Social Welfare and Development (DSWD), the National Economic Development Authority (NEDA) will be credible sources? How about the Department of Foreign Affairs (DFA) as regards the determination as to what extent a particular international human rights instrument could be considered a correct source for information on State “obligations” 101 as regards family planning?
It bears to stress that Congress passed the Act knowing fully well that the Philippine Government has no treaty obligation containing any “reproductive right” or “responsible parenthood” imperative in the manner described and intended by the Act (§ 3.h of the Act). This tacit admission is consistent with the constitutional principles of incorporation (wherein generally accepted principles of public international law rules ipso facto become part of our laws) and ratification (wherein international agreements and treaties become part of our laws upon at least a two-thirds vote of the Senate). (See Art. II, § 2 and Art. VII, § 21, Constitution) In any case, the wisdom behind these two principles ensures that
101

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192. And since the content of the information is in itself a material element of the criminal acts under Section 23.a.1, how can the public even begin to have knowledge of this plethora of information, assuming it is even possible to define it?102 Will the DOH and FDA come out with weekly publications describing these information? Through newspapers of general circulation? Through their websites? Through the government television channel? What about the changing nature of the information such as the continuing medical development in biology and medicine? Will government be able to keep up? Or will the “presumption of regularity of performance of public duty” be applied to shift the burden of defense unto a violator? Will the information contained in the annual report under Section 21 suffice? 193. Assuming these concerns are addressed, how is a violator to raise a defense insofar as the elements of “knowingly withholding/restricting” or “intentionally providing” is concerned? When is a person said to have “knowingly” withheld or restricted information? Will there be a presumption of constructive knowledge if the DOH or FDA is able to publish the information under reasonable circumstances? Will the principle of “ignorance of the law excuses no one” be made to apply? IV. WHEN A DOCTRINAL APPLICATION OF A CONSTITUTIONAL PROVISION ON A MATTER OF TRANSCENDENTAL IMPORTANCE IS RAISED BEFORE THIS COURT, THE ABSENCE OF AN AS-APPLIED CASE HAS NOT HINDERED JUDICIAL REVIEW.

194. This Court has exercised judicial review even in the absence of an applied case, simply upon a demonstration of the impermissible or unreasonable relation of a statute as against a constitutional principle on a subject of transcendental importance.103
no extra-domestic interests are unduly brought into our “rule of law” regime—a “sovereign safety net” built into our Constitution, so to speak. With this backdrop, it becomes clear why the Act relies—at most—on a general reference to “human rights instruments” (§ 3.h of the Act) as a means to suggest a State interest in “reproductive rights” and “responsible parenthood.” But while principles of gender equality and freedom of choice have also become popular jump-off points for discussions on reproductive health and responsible parenthood, no human rights instrument or international population conference can be said to trump constitutional interests, especially if those constitutional interests are explicitly laid down with a unified purpose as demonstrated in paragraph 115 of this submission. 102 “[L]egislation must not be so vague, the language so loose, as to leave to those who have to apply it too wide a discretion for sweeping within its condemnation what is permissible expression.” (Kingsley Int’l Pictures Corp. v. Regents of Univ. of State of N.Y., 360 U.S. 684, 694, 1959) 103 Macalintal v. Commission on Elections, 405 SCRA 614, 2003.

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195. While it would seem that this jurisdictional argument should have been presented before all other arguments on the “merits,” it is only by design that petitioners have first laid down the basis of the transcendental importance of the issues raised by the petitions. 196. It goes without saying that these petitions are the ideal vehicles for the Court to resolve serious constitutional questions arising out of the Act. It represents an unprecedented challenge to an unprecedented statute because the Act implants an agenda that strikes at the heart of the people’s objective to establish a Government that shall “embody the ideals and aspirations” of the “sovereign Filipino people” as enshrined all over the Constitution. These petitions expose the interests of the Act as it mocks the nation’s Filipino culture—noble and lofty in its values and holdings on life, motherhood and family life—now the fragile lifeblood of a treasured culture that today stands solitary but proud in contrast to other nations. V. Our PRAYER, OUR FUTURE

197. It is in this light that petitioners pray for this Honorable Court to grant certiorari and apply its power of judicial review, if only to check on the meaning of police power given by Congress under the Act—a power brought by the Act to such a perilous level never before implemented in our Philippine shores, never before barging into our Philippine schools, never before impinging on our Filipino homes, never before debasing our Filipino youth, and never before paired against our Constitutional ideals and aspirations. 198. Based on the foregoing, petitioners specifically pray for the declaration of unconstitutionality of the following provisions: 198.1 Pertaining to the Act’s mandate for family planning, contraception, consent-free access to modern family planning, and alienation of parental authority: Sections: 2, par. 4 2, par. 11 3.d, 3.f.1 3.l, 3.k 4.e, 4.q.1 4.s, 4.v 7, par. 2 9, 10, 15 23.a.1 23.a.2.1 As being violative of and/or irreconcilable with the Constitutional policies on the value of life, health, family, parenthood, and family autonomy: Preamble Art. II, §§ 12, 9, 15 Art. XIII, § 14 Art. XV, § 3.1

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198.2 Pertaining to the Act’s mandate for a social justice family planning subsidy on favor of the poor and marginalized: As being violative of and/or irreconcilable with the Constitutional policies on social justice and social productivity of all human resource: Preamble Art. II, §§ 4, 9, 17, 18 Art. XII, §§ 1, 12, 14 Art. XIII, §§ 1, 2, 3, 9 Art. XIV, §§ 1, 2.5, 10 Art. X, § 14

Sections: 2, par. 5 3.g 3.i 7 11 19.b.2

198.3 Pertaining to the Act’s mandate for mandatory education on reproductive health, promotion of family planning and contraception, sexuality education of youth, and alienation of youth from parental guidance: Sections: 4.e 4.s 4.q.4 7, par. 2 14 20 As being violative of and/or irreconcilable with the Constitutional policies on the education of youth and civic development: Preamble Art. II, § 13; Art. II, § 17 Art. XIV, §§ 3.2; 3.3 Art. XIV, §§ 10, 14, 15, 17, 18.2, and 19

198.4 Pertaining to the Act’s penal provisions affecting religious freedom and conscience protection: Sections: 23.a.1 23.a.2 23.b 7, 9,10 12, 16, 17 19, 20, 21 As being violative of religious freedom, free speech, due process and equal protection: Preamble Art. III, § 5 Art. XV, § 3.1 Art. III, § 4 Art. XVI, § 10 Art. III, § 1 Art. III, § 14.1

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199. And to enjoin permanently the respondents and all persons acting in their behalf, from implementing the Act. 200. Petitioners pray for such other relief as may be just and equitable under the premises. Quezon City for the City of Manila, 15 November 2013. (original signed) JAMES M. IMBONG Counsel for Petitioners in G.R. No. 204819 Roll of Attorneys No. 51157 PTR No. 0458789 / 03 Jan. 2013 / Angeles City IBP No. 914757 / 15 Feb. 2013 / Quezon City M.C.L.E. Compliance No. III-0018381 / 11 Aug. 2010 (4th compliance ongoing) Mobile No. 0932-4836601 Email: jamesimbong@gmail.com (original signed) JO AUREA M. IMBONG Counsel for Petitioners in G.R. No. 207111 Roll of Attorneys No. 23185 PTR No. 457798/ 28 Feb. 2013 / Marikina City IBP No. 914757 / 15 Feb. 2013 / Quezon City M.C.L.E. Compliance No. IV-0014074 / 27 Mar. 2013 Email: attyjoimbong@gmail.com IMBONG & CASTRO LAW OFFICES Unit 304 Señor Ivan de Palacio Building 139 Malakas St., Diliman, Quezon City Tel. No. 929-4699 and the ST. THOMAS MORE SOCIETY LAW CENTER Magnificat Bldg., Km. 75, MacArthur Highway Sindalan, City of San Fernando, Pampanga Email: stthomasmoresociety.attorneys@gmail.com Copy furnished: OFFICE OF THE SOLICITOR GENERAL Counsel for the Respondents 139 Amorsolo Street, Legaspi Vill., Makati City

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