Church, Constitution and the RH Bill

(Note: This essay is not anti-RH bill per se, and its author's position on the legitimacy of the RH bill is reputed to diverge from that of the Catholic hierarchy in the Philippines. Nevertheless, it is of value in that it points out the legal and constitutional difficulties inherent in the RH bill.)

Sounding Board
Church, Constitution and the RH bill

By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 02:08:00 10/13/2008
Congress is by no means over. It should surprise no one that this is happening; after all, religion and the Constitution, both of which are involved in any evaluation of the bill, are very much at the heart of the life of our people.

I am not about to critique the entire bill nor am I going to say that we should not have a law which seeks to protect the health of women. What I want to do is simply to point out some areas that need further discussion.

Let me begin with the Constitution in so far as it is related to the right to life. We have in our Constitution a provision that assures protection for life. It says that the State “shall equally protect the life of the mother and the life of the unborn from conception.”

Is this provision completely satisfied by the prohibition of abortion which the reproductive health bill reaffirms? It is true that the provision was discussed at a time when many were aware of the US Supreme Court decision in Roe v. Wade which liberalized abortion laws up to the sixth month of pregnancy. The prevention of the adoption of the doctrine in Roe v. Wade was certainly one of the purposes of the provision. But Commission deliberations indicate that the provision goes beyond Roe v. Wade.

Abortion is usually defined as the termination of a pregnancy by the removal or expulsion of an embryo or fetus from the uterus. Pregnancy for its part is the period of reproduction during which a female carries one or more live offspring from implantation in the uterus through gestation. Pregnancy begins when a fertilized zygote implants in the female’s uterus and ends once it leaves the uterus.

The unborn’s entitlement to protection begins “from conception,” that is, from the moment of conception. The intention is to protect life from its beginning, and the assumption is that human life begins at conception and that conception takes place at fertilization of the zygote. Although the constitutional provision does not assert with certainty when human life precisely begins, it reflects the view that, in dealing with the protection of life, it is necessary to take the safer approach. For this reason the Constitution commands that protection be given from conception, that is, from the fertilization of the zygote.

This is reflected in one of the exchanges during the debate. Since the protection of the unborn was to begin from conception, Reverend Cirilo Rigos asked when the “moment of conception” was. Commissioner Bernardo Villegas, who was the principal sponsor of the provision, answered that the conception took place with fertilization since “it is when the ovum is fertilized by the sperm that there is human life.” When Commissioner Fely Aquino observed that at that point there would only be biological life, Bishop Teodoro Bacani did not contradict her but said that there would already be biological human life even if there was as yet no “person.”

From this it can be seen that the intention is to protect the “life” even before implantation in the uterus, that is, from the moment biological life begins. The constitutional intent, in other words, is to play it safe lest human life be destroyed and to impose the protection even before implantation in the uterus.

This brings us to the question whether the reproductive bill allows or even prescribes the use of birth control methods which have the effect of blocking a fertilized zygote from being implanted in the uterus or of expelling a fertilized zygote before implantation. This is a question which, while it has constitutional, religious and moral implications, must first be answered by medical science.

Has this question been sufficiently explored in the course of the debates over the reproductive health bill? My impression is that it has not. And if the law is passed as proposed, the question will most certainly reach the Supreme Court.

Another important element in the debate is the freedom of religious belief. The free exercise of religion guaranteed by the Constitution means more than just the freedom to believe. It also means the freedom to act or not to act according to what one believes. And this freedom is violated when one is compelled to act against one’s belief or is prevented from acting according to one’s belief.

In our society, while people of good faith may find near unanimity on the matter of abortion, there clearly is a sharp division in the matter of contraception. The division is drawn along religious lines. The law as proposed will require people of good faith to act or not to act contrary to what they believe. Concessions must be made so that religious liberty will not be violated. The law must allow for the conscientious objector.

I would make special mention of the requirement of sex education. Sex education is a matter closely related to religious morality. Our Constitution allows the teaching of religion to children in public schools, but it requires that it be done only with the written consent of parents. A similar respect for the desire of parents should be provided for in the law. Our Constitution says: “The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.” As for sex education in private schools, any law on this should respect academic freedom which is also protected by the Constitution.

I have also scanned the penal provisions of the proposed law. My initial impression is that, if passed, they will encounter problems in implementation along lines of criminal due process.