Friday, March 4, 2011
A lawyer responds to Fr. Joaquin Bernas regarding the RH Bill
The following is a response to Fr. Joaquin Bernas' article of February 14, 2011 entitled, Burn the RH-Bill house to roast a pig?
Dear Fr. Bernas,
I was your student in constitutional law many moons ago. To this day, I continue to regard myself as one and accord with deep academic reverence your opinions on constitutional matters. At the risk of revealing my "intellectual bankruptcy" to an eminent profes:sor, please allow me to share my thoughts on the RH Bill which is now designated as HB 4244.
For the sake of simplicity and clarity, I will confine myself to the current version of the bill and not venture into the dark unknown by second-guessing what our legislators may decide to do in the future.
Your fearless forecast that RH bill will become a law through the exercise of police power has made me shudder in disbelief.
Police power is that attribute of sovereignty that enables it to prohibit all that is hurtful to the comfort, safety, and welfare of society. It has the most comprehensive embrace among the inherent powers of the State extending as it does to whatever it is that fosters the "common good." To be valid, its exercise must have a valid public purpose and the means employed to accomplish such purpose must be reasonable, not oppressive nor arbitrary.
Does that mean that the State, through its agencies, can justifiably interfere with the exercise of the basic human rights to life and liberty and the constitutional rights to free speech and religious freedom under the guise of "general welfare?" Instantly, a glaring discord is obvious here. For how can one claim to champion the common good when the rights so firmly enshrined in the Bill of Rights are trampled upon and sacrificed? As jurisprudence puts it, has the existence of a grave and immediate danger of a substantive evil which the State has the right to prevent been clearly established to warrant the infringement of these rights?
But before I get accused of putting the cart before the horse, let me attempt to engage in a 'herculean task' of pointing out some major points.
While the Declaration of Policy of the bill may be replete with defensible objectives, it is simply that -- a statement of objectives that are expectedly noble and laudable. But this behooves us to examine the meat of the bill and determine if the provisions are faithful to the avowed policies.
The Constitution imposes upon the State the duty to "equally protect the life of the mother and the life of the unborn from conception." The life of the unborn (equally with that of the mother) is entitled to protection at and from conception. And conception here refers to fertilization since these terms were used interchangeably during the deliberations of the 1980 Constitutional Commission. And this protection to be meaningful should be from any form and degree of harm or injury and death ---not only actual but also any risk or threat thereof. For under our law, a conceived child is endowed with the dignity and worth of a human being from his conception and thus is recognized to have the right not only to be born, but to be born well. This necessarily includes the right of the unborn to develop to its full term and not to be expelled prematurely from the mother's womb.
An issue has been raised with regard to certain contraceptives that interfere with uterine implantation of the developing embryo and precipitate its destruction and expulsion from the uterus which in medical parlance are known as abortifacients. Scientific data and findings have been proffered in this regard. This issue has been dismissed by some medical doctors who claim that this action is possible only when there is fertilization which does not occur precisely because of the contraceptives. In the same breadth, however, they admit that breakthrough ovulation docs occur in women taking contraceptives and such incidents have in fact been documented; however, they add that these are very rare.
This denial-admission cannot be recklessly ignored or blithely dismissed because this puts the life of the unborn child on the line and strikes at the very core of the issues heaped against the bill. The adverse effects of contraceptives on the mother's health which have been supported by data and personal testimonies of victims and their. families are serious enough to be summarily dismissed. While the bill vows to protect the health of the mother and the child, it shows no respect for life and t:he fundamental right to life. With the aggressive promotion and widespread dissemination of contraceptives, the bill, in effect, allows and promotes abortion.
Family planning is a matter that concerns and affects the spouses and their families. They have the constitutional right to participate in the planning and implementation of policies and programs that affect them. Part of this right is for them to receive correct, complete and clear information not only about the "availability" of family planning methods and reproductive health services but more importantly, about their nature arid effects. There has to be full, honest, and transparent disclosure and disseminationof information and thorough and widespread discussion about tlnese methods and services. As a result of this exercise, and not privately, the "safe, effective and legal methods" of family planning should be judiciously and prudentlydetermined and identified. This constitutes the essence of free and informed choice. And considering the far-reaching consequences, this exercise should be undertaken before the passage of the bill, not after.
The issue of disregard of religious freedom is no less important. A healthcare service provider who refuses to provide information or perform health care services on account of religion will nonetheless have to refer the person seeking such care to another provider who is willing to provide the same service or information. Employers are 1ike:wisemandated to provide reproductive health services to their employees, without mention of religious or ethical considerations.
There is also imposition on the freedom of speech for a healthcare provider who knowingly withholds information or restricts dissemination thereof, for any reason.
By making reproductive health and sexuality education mandatory for all public and private schools from grade five to fourth year high school, with a common curriculum formulated by designated agencies, the natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character is supplanted by the government which is supposed to assume only a suppoirting role.
In light of all this, there is no public purpose that justifies the appropriation of public funds for the implementation of the law. Surely, the government should find better use of my hard-earned money.
Will the Bill undergo an upheaval to pursue a true and genuine public purpose and adopt means that are reasonably necessary to accomplish that purpose, neither coercive nor authoritarian? I wish I knew, but I will be bold enough to state that only if and when ou:r legislators come to regard life as the greatest and most precious gift of their Creator to humanity can they sincerely claim to serve the common good.
I am proud of and grateful for my eight years of Ateneo education. I am particularly edified by its exhortation for Ateneans to be "men for others." With Life at the very core of the issues involved in RH bill, the advocacy to defend and protect it, I believe, is a singular opportunity to respond meaningfully to that call. For indeed, LIFE is more than just a pig!
Maria Concepcion S. Noche