Will the RH Bill really enjoy the "presumption of constitutionality"?

Senator Santiago's "constitutional" follow-up to her "encyclical"

Wilfredo Jose

Miriam's "constitutional" follow-up to her "encyclical"

The Reproductive Health Act (Sponsorship speech part 2)

The meat of Senator Miriam Santiago's RH Sponsorship speech (Parts 2 and 3) rests in claiming that the enactment of the RH bill will enjoy a presumption of constitutionality. According to her since there is no clear constitutional prohibition, the passage of the bill would amount to a "legislative construction" of Article 2 Section 12 which is at the heart of the constitutionality issue.

I am not about to argue Senator Santiago's legal opinion point by point, for that is well beyond my reach. I would just like to point out that at least three legal luminaries do not share her legal constructions, and in fact flatly goes against them.

Read the rest of the article HERE. 

Angsioco: letting the cat out of the bag

Angsioco versus unborn

Willy Jose

With prominent RH bill proponent Elizabeth Angsioco's latest tirade entitled "Unborn versus mother", one is convincingly left without any iota of a doubt as to the main agenda of the RH bill: it is all about Abortion with a capital A. Unless the RH bill proponents disown Angsioco's statements, her astonishing message reveals the strikingly clear motive. The title of her opinionated (and grossly erroneous) piece is in itself a dead giveaway. Why, is there an inherent war between ''Unborn vs Mother"? Does Angsioco herself feel that her mother is at war with her from the moment of her conception up to every breathing moment of her life? I suppose not, for even Elizabeth Angsioco herself should probably make a convincing case for the timeless adage "only a mother can love''.

Angsioco takes umbrage at the various bills pending in Congress that seek to put teeth into the Constitutional provision requiring the State to ''equally protect the life of the mother and the life of the unborn from conception". While she acknowledges the provision, in the same breath she claims:

''A child is someone who is born into this world, a complete human person like you and me. A child is a citizen, and therefore, has human rights. Calling the unborn a child to me is going beyond what the Constitution provides."

So according to Angsiocotic philosophy, the unborn is not a complete person until it is "born into this world". If the unborn is not a "complete person'', what is it then? A half-person? A quarter-person? Semi-person? A clump of inhuman cells? She bolsters her argument by referring to the Constitution but I do not see anything in there that says the unborn is a partial human person. What I do see in there, is that the unborn is accorded by the State a presumptive personality from the moment of conception. A presumed person that merits protection by the State. Why, because the Constitutional Commission precisely said so. If the state presumes the personhood of the unborn it does not consider it as an incomplete human unworthy of protection. She harps about the right of the mother (the unfettered right to abort, if that is not clear enough) and completely turns a blind eye to the right of the unborn. The records of the 1986 Commission flatly rejects her imaginations:

"Whats being affirmed in this formulation is the moral right as well as the constitutional right of the unborn child to life, If this should entail the granting of presumptive personality to the unborn befinning at the moment of the conception, then so be it. Xxx Respect for the rights of the woman with child and respect for the rights of the child in her womb are by nature intimately linked such that any deliberate harm that should come upon one will doubtless effect a corresponbding harm to the other. Conflicts of rights is fictitious. Xxx The conflict is only apparent. It is easily resolved by applying the following principle: When two rights come in conflict, the more basic right and/or the right concerning the graver matter takes precedence over rights involving the less basic or less serious matter. It is clear that the right to life is more basic than the right to privacy or any other posterior rights. Therefore, since removal of the fetus would most certainly result in violation of its right to life, the woman has no right to evict the temporary resident of her private womb.”

(Bernas, J.. The Intent of the 1986 Constitution Writers (1995), p. 119.)

Not only does Angsioco twist legalities, she also manages to twist mathematics as well. EQUAL Protection means, well, EQUAL Protection. The right of the mother for protection is EQUAL to the right of the unborn for protection. Not GREATER THAN nor LESS THAN. Of course there are exceptional cases where the medical treatment of the mother might result to a NOT DIRECTLY INTENDED harm to the unborn. Angsioco apparently, is not capable of acknowledging the nuanced distinction whatsoever. She is clearly all for the 'rights' of the mother to abort the unborn regardless. After all according to her, the unborn has no rights whatsoever until it is born. Well, she has a right to her opinion, however twisted it may be. The State guarantees EQUAL protection of freedom of speech to the erroneous person as well as to the factual person. I presume her mother would love her in spite of that. As to the rest of the pro-RH bill advocates, I presume they would love to gag her from now on. She just let the screaming cat out of the bag.

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.