Solidarity in the time of COVID-19 -- MS Supplement

Keeping faith in the Court

The Supreme Court’s decision to extend indefinitely its status quo ante order on the Reproductive Health Law does not at all rule on the merits of the 13 petitions against it.  But it allows the petitioners to argue their case, without having to feel it’s all over and done with.  The opposing parties not being equal in weight—13 prolife and pro-family groups against the Executive Department and Congress—the petitioners might have felt short-changed had the order been lifted and the Department of Health allowed to implement the disputed law while the hearings were still in progress.  The decision helps to preserve faith in the process. Malacañang is undoubtedly unhappy about it.  But for them to openly say so helps no one at all. It will be recalled that on the first day of the Oral Arguments, Chief Justice Maria Lourdes Sereno and at least one other Justice did not hesitate to voice their concern about the 15 unelected members of the Court being asked to pass judgment on the constitutionality of a law enacted by Congress and approved by the President.  We do not want Malacañang’s professed disappointment over the decision to magnify that concern. But there’s more.  Health Secretary Enrique Ona had earlier assured a big women’s conference in Kuala Lumpur that the petitions seeking to nullify the RH law presented but a temporary setback.  He did not expect the Court to rule against the government, and he looked forward to being able to eventually distribute the condoms and other contraceptives, which he had already procured in bulk. In other words, our tax money has been spent.  Fait accompli? Ona will have to keep his  RH inventory in storage, and be prepared to destroy it  should the government lose its case. Meanwhile, he could perhaps advise his new undersecretary, the former congresswoman and co-author of the RH Law, Janet Garin, to stop regurgitating  the old argumentum ad misericordiam which had inundated the 15th Congress, about poor pregnant women dying because of the lack of an RH law.  We all have had our fill of the propaganda about the poverty, demography, maternal health and other problems the RH law will “solve.” Only the pro-RH foreign agents that have infiltrated even the independent press as editorial writers and columnists seem unaware that the debate on these issues is over, and that all their lies have already been exposed.  Only one issue remains, and this is what the Court must decide:  Assuming, for the sake of argument, that everything the anti-RH groups have said about poverty, demography and maternal health is wrong (although the evidence is otherwise), and everything the pro-RH groups have said about the same things is right (although the evidence shows the opposite), can Republic Act 10354 stand side by side with the Constitution? The specific issue is whether the State has the right or the duty to impose birth control on the population, and whether such right or duty, assuming for the sake of argument it exists, can override all the specific constitutional provisions that proclaim the sanctity of family life; uphold the family as the foundation of the nation and as a basic autonomous and inviolable social institution; defend the right of spouses to found a family according to their religious convictions and the demands of responsible parenthood; and equally protect the life of the mother and the life of the unborn from conception. We need to stay focused on that.  For even the Court could fall prey to the residual effects of the misleading debates which the pro-RH group had framed along non-constitutional lines.   For instance, on the first day of the orals, the Chief Justice spoke of a poor clerk of hers who already had several children but was still childbearing, and receiving a salary of P10,000 a month only.  Then she asked lawyer-petitioner Maria Concepcion Noche whether in her understanding of the law,  she (the CJ) would be committing an “impeachable offense” if she advised her clerk  to take contraceptives in order to stop bearing children. To which Noche, after a brief pause, said, she thought so. Belinda Olivares Cunanan, a blogger who sat in court that day, was quick to criticize the CJ in her blog saying:  “why doesn’t the CJ compensate her more, if she’s honest?” That is regrettable, but even that could have been avoided if we all had a common and clearer appreciation of the fact that the issue before  the Court now is not whether  anyone can or should take contraceptives or not, or whether or not an individual can or should “advise” another person to take contraceptives, but whether the State, as the constitutional protector of the unborn, can or should legally oblige anyone at all to take contraceptives. Since there is no law prohibiting an individual from using contraceptives, or  from “advising” another individual to use or not to use contraceptives,  the matter of the CJ “advising” her poorly paid employee to take contraceptives raises a moral question, not a constitutional one.   Unfortunately, morality never figured in the debates, even though contraception is morally wrong, for it removes, as Martin Rhonheimer points out,  an entire area of human behavior from regulation of the moral law.  The Justices may not want the Court to become the venue for discussing it now.
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