[Note: All these articles are written by Father Joaquin Bernas, SJ which I arranged in chronological order. Please refer to the original found in his blog. Thanks. -- joaquin salvador]
A New Chief Justice;
An Amended HB 4244
Fr.
Joaquin Bernas, SJ
20
August 2012
The
constitutional quality requirements for a Chief Justice are no other than the
basic requirements of “competence, integrity, probity, and independence.”
No one can possess all these qualities in a degree higher than all the other
nominees. Not one of the nominees, for instance, can be considered as
possessing the highest degree of competence in all fields of law. The
field of law is so broad that necessarily there are varying fields of
specialization. Precisely the Supreme Court is a collegial body in
recognition of this fact and in order for it to be able resolve the variety of
problems that can be brought before the Court. In term of competence, it
can be assumed that all the nominees have sufficient competence to engage in
the give and take debates within the Court.
The
qualities of integrity, probity, and independence are interrelated. How
the nominees are ranked according to these qualities is crucial for the
President’s choice. Which of those are the most important for the goals
that the President has in mind? The expressed dissatisfaction of the
President with those listed might give us an idea of what kind of Chief
Justice he wants.
Amending
HB 4244. Those
who are seriously studying the RH BILL should take a look at the amendments
already offered by the authors of the Bill themselves. They are contained
in a letter of Edsel Lagman to Congressman Rogelio J. Espina,
Chairman of the Committee on Population and Family Relations. However, to
understand the proposed amendments one must read and study House Bill 4224 and
not just rely on criticism by some who may never have read it much less studied
it.
Yes,
there are good number of misconceptions about the RH Bill and there can be
dishonest critics who set up straw men they can merrily attack. One may
ask, for instance, how many among the church authorities have read and studied
HB 4244? This is an import question because I see the amendments as efforts
to adjust to the transition from an established Catholic church whose word was
law to the demands of freedom of religion today.
I
propose in this column to pull together the various amendments already accepted
by the authors of the Bill. I shall take up the pertinent sections of the
bill one by one.
Section
13. Role of barangay health workers. Instead of saying that
they should “give priority to family planning work” simply say they should
“help implement this Act.” This should obviate the complaints that family
planning is being given undue emphasis.
Section
15. Funding Mobile Health Services. Charge the funding to
the National Government instead of to the Priority Development Fund of
Congressmen (PDAF) while at the same time allowing individual lawmakers to use
their PDAF.
Section
16. Mandatory Age Appropriate Sex Education. Give parents
the option not to allow their children to attend mandatory sex education while
at the same time giving assistance to parents who want assistance in this
matter. This is in conformity with the primary right of parents.
Section
20. Ideal Family Size. Delete the entire provision.
This will preclude further misinformation about the meaning of this provision.
Section
21. Employers’ Responsibility. Delete this because it is
simply a restatement of Article 134 of the Labor Code. Deleting it will
preclude further debate.
Section
28(e) Prohibited Acts. Delete the provision which penalizes
“any person who maliciously engages in disinformation about the intent and
provisions of this Act.” There already are penal limits on freedom of
expression.
In
addition to the above amendments already proposed by the authors of the
consolidated bill there are others which are worth considering. Let me
mention a few:
On
Age-Appropriate Reproductive Health and Sexuality Education
1. Private schools can
opt to provide an alternative sexuality education curriculum based on the
school’s religious beliefs or values. The government will monitor that there is
a curriculum being implemented, whether the standard one or the alternative
one.
2. If a public school
cannot provide enough adequately trained teachers or there are public school
teachers who cannot teach the government’s curriculum because of religion-based
objections, the proper government agency would send trained instructors to
teach the sexuality education classes.
3. An additional topic
for the curriculum is the role of religious freedom and conscience in choosing
the means of planning families.
On
Prohibited Acts
Any
healthcare service provider, whether public or private, who shall require a
person to undergo a sterilization as a condition for providing basic health
care or emergency care or health care assistance to indigents shall be
penalized.
I
realize that there are other urgent matters which Congress must consider.
But the effort of some to block the period of amendments merely as a tactic for
preventing the approval of the bill at any cost does a disservice to the
nation.
20
August 2012
RH Bill: Don't Burn the House to Roast a Pig
Fr.
Joaquin Bernas, SJ
06
August 2012
A
little over a year ago, or on May 22, 2011 to be exact, I wrote an article for Inquirer entitled “My Stand on the RH Bill.”
With the vote on the RH Bill approaching people have asked me whether my stand on the bill has
changed. Let me restate the salient
points I made then.
First,
let me start by saying that I adhere to the teaching of the Church on
artificial contraception even if I am aware that the teaching on the subject is
not considered infallible doctrine by those who know more theology than I
do. I know that some people consider me
a heretic and that at the very least I should leave the priesthood. But my superiors still stand by me.
Second,
(very important for me as a student of the Constitution and of church state
relations) I am very much aware of the fact that we live in a pluralist society
where various religious groups have differing beliefs about the morality of
artificial contraception which is very much at the center of the controversy.
But freedom of religion means more than just the freedom to believe. It also
means the freedom to act or not to act according to what one believes. Hence,
the state should not prevent people from practicing responsible parenthood
according to their religious belief nor may churchmen pressure President
Aquino, by whatever means, to prevent people from acting according to their
religious belief. As the Compendium on the Social Teaching of the Catholic
Church says, “Because of its historical and cultural ties to a nation, a
religious community [like the Catholic church] might be given special
recognition on the part of the State. Such recognition must in no way create
discrimination within the civil or social order for other religious groups” and
“Those responsible for government are required to interpret the common good of
their country not only according to the guidelines of the majority but also
according to the effective good of all the members of the community, including
the minority.”
Third,
the obligation to respect freedom of religion is also applicable to the state.
Thus, I advocate careful recasting of the provision on mandatory sexual
education in public schools without the consent of parents. (I assume that
those who send their children to Catholic schools accept the program of
Catholic schools on the subject.) My reason for requiring the consent of
parents is, in addition to free exercise of religion, the constitutional
provision which recognizes the sanctity of the human family and “the natural
and primary right of parents in the rearing of the youth for civic efficiency
and the development of moral character.” (Article II, Section 12).
Fourth,
the duty to care for sexual and reproductive health of employees should be
approached in a balanced way so that both the freedom of religion of employers
and the welfare of workers will be attended to.
In this regard it may be necessary to reformulate the provisions already
found in the Labor Code.
Fifth,
I hold that public money may be spent for the promotion of reproductive health
in ways that do not violate the Constitution. Thus, for instance, it may be
legitimately spent for making available reproductive materials that are not
abortifacient. Public money is neither
Catholic, nor Protestant, nor Muslim or what have you and may be appropriated
by Congress for the public good without violating the Constitution.
Sixth,
we should be careful not to distort what the RH Bill says. The RH Bill does not favor abortion. The bill
clearly prohibits abortion as an assault against the right to life.
Seventh,
in addition, I hold that abortifacient
pills and devises should be banned by the Food and Drug Administration.
However, determining which of the pills in the market are abortifacient is
something for the judicial process to determine with the aid of science
experts. Our Court has already upheld
the banning of at least one device found to be abortifacient.
Eighth,
I am dismayed by preachers telling parishioners that support for the RH bill ipso facto is a serious sin or merits
excommunication! I find this to be
irresponsible.
Ninth,
I claim no competence to debate about demographics.
Tenth,
I have never held that the RH Bill is perfect. But if we have to have an RH
law, I intend to contribute to its improvement as much as I can. I hold that the approval of the RH Bill today
will not end all debate about it. It
will only shift the arena for debate from the raucous and noisy rally fields to
the more sober judicial arena where reason has a better chance of prevailing.
Finally,
there are many valuable points in the bill’s Declaration of Policy and Guiding
Principles which are desperately needed especially by poor women who cannot
afford the cost of medical service. There are specific provisions which give
substance to these good points. They should be saved even if we must litigate
later about those which we disagree on.
In other words, let us not burn the house just to roast a pig.
When is family planning anti-life
Fr.
Joaquin Bernas, SJ
26
September 2011
I use the phrase family
planning because it is a phrase that covers a broad spectrum of ways of
limiting the number of children. It can include abstention from sexual congress
intended to beget children. It can include what are called natural methods of
preventing conception. It can include artificial means of preventing
conception. It also includes abortion. All these contribute to the reduction
and regulation of the number of the children that are brought into this world.
In the current debate
brought about by the introduction of the RH Bill the question of what is
anti-life comes up. It is therefore important to be able to clarify what
precisely is meant by being anti-life.
In the current debate the phrase anti-life is often used in the most pejorative way. It is used in the sense of being against existing life. Murder, in other words.
In the current debate the phrase anti-life is often used in the most pejorative way. It is used in the sense of being against existing life. Murder, in other words.
But it can also be
understood to mean not being willing or not desiring to add more human life to
the already crowded population. This would be the stance of a married couple
who decide to abstain from the acts that bring about life. To a certain extent
this is also the stance of a young man who chooses a celibate life not because
he hates children but out of a conviction that he can accomplish better what he
feels he is called to do without the burden of raising children. Definitely I
would not categorize such persons as being anti-life. They love life so much
that they take it upon themselves to contribute in some way or other to the
improvement of the quality of life of those who are already born.
We come now to
contraception. Is contraception anti-life in the sense of being directed at
actual life? The phrase anti-life is an active and not a passive word. The word
“anti” in compound word is an active word aimed at life. Thus we must ask when
life begins, because before life begins it is beyond the reach of anti-life
action.
When does life begin? For
me, the starting point in dealing with this very specific question is what the
Constitution says. It says that the state “shall protect the life of the unborn
from conception.” What this means, in the understanding of the men and women
who wrote that Constitution, is that life begins at conception, that is, upon
fertilization. Before fertilization there is no life. This is also the view of
the Philippine Medical Society and this is the view of John Paul II. John Paul
II says that life is so important that we should not do anything that will
endanger it. We would be taking at least a very serious risk against life if we
terminate development after fertilization.
What this means is that one
who practices abstention is not anti-life. The celibate who gives up
procreation for a higher calling is not anti-life. The use of contraceptive
devises that only prevents fertilization is not anti-life in the sense of being
an act of murder. Abortion, in the sense of expulsion of the fertilized ovum at
any time after fertilization is anti-life, is abortion and is an act of murder.
If life of the unborn is terminated at a stage of viability the crime is
infanticide. For that reason the Penal Code and also the proposed RH Bill
prohibits and penalizes abortion and infanticide.
I have heard it loosely
said that what are being marketed as contraception devices are in fact abortive
devices. This is loose talk. If there are such abortive devices being marketed,
they should be identified scientifically, not by gossip, and withdrawn from the
market. The Food and Drug Administration has the responsibility of ensuring
that no abortifacient drugs be marketed. I know of one drug which was withdrawn
from the market after being proved before the FDA to be abortifacient. This was
the subject of a thesis of a student of mine which she defended, as required
for graduation from the Ateneo Law School, before a panel of professors.
Having said all this I must
also put on my hat as priest of the Catholic Church. I accept the teaching of
the Catholic Church which prohibits not only abortion but also artificial
contraception. Yet one might say that through this article I am in fact
approving artificial contraception. I am not doing such a thing. Aside from
being a Catholic priest in good standing I am also a lawyer and teacher and
student of Constitutional Law. What I am doing is to place all this in the
context of our constitutionally mandated pluralistic society. Not all citizens
of the Philippines are Catholics. Many of them therefore do not consider
artificial contraception immoral or anti-life. The teaching of my Church is
that I must respect the belief of other religions even if I do not agree with
them. That is how Catholics and non-Catholics can live together in harmony. The
alternative, which God forbid, is the restoration of the Inquisition.
26 September 2011
***
Levels
of discourse in the RH Bill
Fr.
Joaquin Bernas, SJ
30
May 2011
If the debate on the RH
Bill appears often frustrating and sometimes verging on the chaotic, it is
largely because the participants in the debate frequently communicate along
different levels of discourse thereby evading real engagement. Many rarely make
the necessary distinctions, nuancing and clarifications. The result can be like
listening to people arguing along different radio frequencies.
But this is largely
inevitable for at least two reasons: first, the disagreements can legitimately
be along different topics and, second, there is no director who can manage the
ordering of topics for discussion. Thus the debate can mix basic constitutional
issues, family planning, population control and national development issues,
drug control or regulation, and even criminal process in a hodgepodge of
confusion.
The debate on the
constitutional level alone already offers abundant material for levels of
disagreement. The core issues arise from the non-establishment clause and the
free exercise clause.
The non-establishment clause,
popularly but not always precisely referred to as separation of church and
state, can mean different thing for different people. The core meaning is that
it prohibits the establishment of a state religion. Historically for the
Philippines, it means the denial to the Catholic church of the privileged
position it occupied under Spanish sovereignty. Corollary to the cutting down
of the privileged position of the Catholic church has been the recognition of
the equal position of other religions.
Beyond the prohibition of a
state religion, non-establishment also means the prohibition of the use of
public resources for the support or for the prohibition of religion. But public
resources may be used for a legitimate secular purpose even if incidental
benefit to religion might arise. The use of public money, for instance, for
making safe contraceptive devises available to the poor falls under this aspect
of the non-establishment clause.
Whichever way the RH debate
is concluded, since the RH Bill’s avowed purpose is secular, it can be
accommodated within the non-establishment clause. But the more delicate issue
is the free exercise clause.
It means the freedom to act
according to one’s religious belief and the freedom from being compelled to act
contrary to one’s religious belief. But there are those who argue that the RH
debate is not about religion but about ethics and natural law. Even assuming
that this is so, one must still ask, “Whose natural law? Whose ethical
principles?” The constitution also protects “natural law” belief or disbelief,
if not through the religion clause, then through the free speech clause, where
speech is involved, and through the due process and equal protection clauses
when action is involved. But I myself hold that protected religion in the
Constitution includes beliefs that are not traditionally theistic such as
Buddhism, ethical culture and secular humanism. I view protected religion in
the Constitution as encompassing beliefs and views which illuminate the
"very ground of one's being" and which give life meaning and
direction.
Another constitutional
issue is the right to life. It involves trying to identify when life begins and
when there is contraception and when abortion. The most hilarious argument I
have heard on this is that contraception is attempted murder! Whoever said that
deserves a medal for I know not what. Moreover, the debate on the right to life
includes controversies about family planning, population control and their
relation to national development. Controversy on these subjects in the
Philippines has had a long history involving the Catholic Church, government
agencies, non-governmental organizations and international organizations.
Related to these are sex
education as well as family life and family values. But as one sociologist has
written, “The charge is made that the RH bill will destroy the Filipino family.
On the basis of more than 25 years of pastoral and social work in Payatas, and
some seven years sponsoring natural family planning programs, I can say that the
family is already at great risk—and not because of contraceptives.”
After the constitutional
issues, there are also what I might call pharmacological issues. There are
claims, for instance, that there are contraceptive drugs in the market that
cause abortion or are carcinogenic. What I would like to see is an
authoritative identification of the drugs that are said to be abortifacient or
carcinogenic so that they can be withdrawn from the market or their use
subjected to medical regulation. So far I have seen only one drug identified as
abortifacient, namely postinor. This was withdrawn from the market by the Food
and Drug and Administration. But the identification of drugs claimed to be
abortifacient or carcinogenic should be authoritative in a manner that is fair
to drug manufacturers and to those who rely on them for legitimate medical
purposes.
Finally, however, the fate
of the RH Bill will be determined by Congress. Already we can see that some
members of Congress are hedging their bets. The issues involved in the RH Bill
are real issues. But politicians are also thinking of the next election! Some
of them will probably heave a sigh of relief if the RH Bill disappears from the
scene the way the impeachment of the Ombudsman disappeared from the scene.
30 May 2011
***
My
stand on RH Bill
Fr.
Joaquin Bernas
22
May 2011
I have been following the
debates on the RH Bill not just in the recent House sessions but practically
since its start. In the process, because of what I have said and written,
(where I have not joined the attack dogs against the RH Bill), I have been called
a Judas by a high ranking cleric, I am considered a heretic in a wealthy
barangay where some of whose members have urged that I should leave the Church
(which is insane), and one of those who regularly hear my Mass in the Ateneo
Chapel in Rockwell came to me disturbed by my position. I feel therefore that I
owe some explanation to those who listen to me or read my writings.
First, let me start by
saying that I adhere to the teaching of the Church on artificial contraception
even if I am aware that the teaching on the subject is not considered
infallible doctrine by those who know more theology than I do. Moreover, I am
still considered a Catholic and Jesuit in good standing by my superiors,
critics notwithstanding!
Second, (very important for
me as a student of the Constitution and of church state relations) I am very
much aware of the fact that we live in a pluralist society where various
religious groups have differing beliefs about the morality of artificial
contraception. But freedom of religion means more than just the freedom to
believe. It also means the freedom to act or not to act according to what one
believes. Hence, the state should not prevent people from practicing
responsible parenthood according to their religious belief nor may churchmen compel
President Aquino, by whatever means, to prevent people from acting according to
their religious belief. As the Compendium on the Social Teaching of the
Catholic Church says, “Because of its historical and cultural ties to a nation,
a religious community might be given special recognition on the part of the
State. Such recognition must in no way create discrimination within the civil
or social order for other religious groups” and “Those responsible for
government are required to interpret the common good of their country not only
according to the guidelines of the majority but also according to the effective
good of all the members of the community, including the minority.”
Third, I am dismayed by
preachers telling parishioners that support for the RH bill ipso facto is a
serious sin or merits excommunication! I find this to be irresponsible.
Fourth, I have never held
that the RH Bill is perfect. But if we have to have an RH law, I intend to
contribute to its improvement as much as I can. Because of this, I and a number
of my colleagues have offered ways of improving it and specifying areas that
can be the subject of intelligent discussion. (Yes, there are intelligent
people in our country.) For that purpose we jointly prepared and I published in
my Inquirer column what we called “talking points” on the bill.
Fifth, specifically I
advocate removal of the provision on mandatory sexual education in public
schools without the consent of parents. (I assume that those who send their
children to Catholic schools accept the program of Catholic schools on the
subject.) My reason for requiring the consent of parents is, among others, the
constitutional provision which recognizes the sanctity of the human family and
“the natural and primary right of parents in the rearing of the youth for civic
efficiency and the development of moral character.” (Article II, Section 12).
Sixth, I am pleased that
the bill reiterates the prohibition of abortion as an assault against the right
to life. Abortifacient pills and devises, if there are any in the market,
should be banned by the Food and Drug Administration. But whether or not there
are such is a question of scientific fact of which I am no judge.
Seventh, I hold that there
already is abortion any time a fertilized ovum is expelled. The Constitution
commands that the life of the unborn be protected “from conception.” For me
this means that sacred life begins at fertilization and not at implantation.
Eight, it has already been
pointed out that the obligation of employers with regard to the sexual and
reproductive health of employees is already dealt with in the Labor Code. If
the provision needs improvement or nuancing, let it be done through an
examination of the Labor Code provision.
Ninth, there are many
valuable points in the bill’s Declaration of Policy and Guiding Principles
which can serve the welfare of the nation and especially of poor women who
cannot afford the cost of medical service. There are specific provisions which
give substance to these good points. They should be saved.
Tenth, I hold that public
money may be spent for the promotion of reproductive health in ways that do not
violate the Constitution. Public money is neither Catholic, nor Protestant, nor
Muslim or what have you and may be appropriated by Congress for the public good
without violating the Constitution.
Eleventh, I leave the
debate on population control to sociologists.
Finally, I am happy that
the CBCP has disowned the self-destructive views of some clerics.
22 May 2011
***
War
of religions
Fr.
Joaquin Bernas, SJ
2
May 2011
The controversy over the RH
Bill is becoming or has become a war of religions. Pitted against each other
are, on the one hand, “good” Catholics, and, on the other, the Iglesia ni
Kristo, Protestant denominations, Muslims and “bad” Catholics. By “bad
Catholics” I mean the kind of Catholics whom “good” priests supported by their
“good” bishop consider unworthy to enter a Catholic church. And since I myself
do not see the variousissues as clear black against white, I have been urged by
some “good” Catholics to leave the church before I say anything more on the
issue. It is a sad day for the Catholic church which I love.
When I heard about the
priest who told those who accept the RH Bill to leave the church, two passages
from the New Testament came to mind. I refer, first, to the driving of money
changers out of the temple premises. Jesus fashioned a whip out of chords, and
drove the “bad guys” out of the premises. But, unlike the driven out “bad
Catholics,” the “bad guys” in the New Testament story were not there to pray;
they were there to make money. And they were not even in the inner portion of
the Temple. Jesus had every right to say that his Father’s house was not meant
to be a market place.
Another incident is the
story of the woman caught in adultery. She was dragged before Our Lord by
“good” people. And the Mosaic law was clear: a woman caught in adultery must be
stoned. “Let him who has no sin cast the first stone,” Jesus said. And he bent
down to scribble on the ground, to scribble perhaps the names of the accusers.
One by one the “good” guys slinked away.
The moral of the story is,
which I like to tell those who ask me why I continue to teach “bad guys” in the
Ateneo Law School: Christ came to save sinners, even defenders of the RH Bill.
The debate on the RH Bill
started in 2008, or perhaps even earlier, but it was interrupted by concern
about the coming elections. When the debate resumed in 2009, it was difficult
for many, myself included, to be totally for or totally against the RH Bill
because it had many facets. I believe that the complexity of the issues
presented by the bill is the reason that, while some priests and bishops have
been vocal against the bill, others have largely remained silent. And I often
wonder how many of them have bothered to study the Bill.
Since 2009, the proposal in
the House has undergone some very substantial changes. The original proponents
of the Bill have agreed to tone down or eliminate some of the provisions being
objected to. Let me enumerate some.
The original bill said that
local government units should “give priority to family planning work.” What is
now being proposed is that local government units will “help implement this
Act.”
With regard to mandatory
age-appropriate reproductive health and sexuality education, the proposal now
says “Parents shall have the option of not allowing their minor children to
attend classes pertaining to Reproductive Health and Sexuality Education.”
Moreover, the provision on the ideal family size is being deleted.
Deleted also is the section
on employers’ responsibility on reproductive health which merely amplifies what
is already provided for in the Labor Code.
Likewise deleted was the
specific enumeration of allowable contraceptive devices and methods. Instead,
the proposal is for the allowance of contraceptive methods that are in general
safe and legal. This would mean a prohibition of contraceptive methods that are
abortifacient once they have been scientifically identified. This is what the
government did after Postinor was identified as abortifacient.
Will these proposed
changes, even if all of them become part of the law, put an end to the debate?
Definitely it will not. Very much at the heart of the debate is the teaching on
methods of family planning. I do not see the Catholic Church or the other
churches yielding on this issue. In the light of this insoluble division, how
then should the debate be conducted?
The Catholic Social
Teaching on this may be found in what the Second Plenary Council of the Philippines
(PCP II) under the CBCP states: “The public defense of gospel values,
especially when carried into the arena of public policy formulation, whether
through the advocacy of lay leaders or the moral suasion by pastors, is not
without limit. . . It needs emphasizing, that, although pastors have the
liberty to participate in policy debate and formulation, that liberty must not
be exercised to the detriment of the religious freedom of non-communicants, or
even of dissenting communicants. This is a clear implication of Vatican II’s
Dignitatis humanae. This is not just a matter of prudence; it is a matter of
justice.”
Of special application to a
country where Catholics are a majority is the teaching of the Compendium on the
Social Teaching of the Church which says: “Because of its historical and
cultural ties to a nation, a religious community might be given special
recognition on the part of the State. Such recognition must in no way create
discrimination within the civil or social order for other religious groups” and
“Those responsible for government are required to interpret the common good of
their country not only according to the guidelines of the majority but also
according to the effective good of all the members of the community, including
the minority.” This, too, is the teaching of Dignitatis Humanae. (No. 6)
2 May 2011
***
Furor
over Alabang ordinance
Fr.
Joaquin Bernas, SJ
14
March 2011
I am, of course, referring
to an ordinance that bars distribution of contraceptive drugs and devises in
Alabang village. In a copy of the ordinance which I have seen, the Alabang
BARANGAY Council prohibits “Any natural or legal person to advertise within the
territorial jurisdiction of the BARANGAY . . . or sell, offer for free or
endorse, promote, prescribe or distribute abortifacients as defined” in the
ordinance. The ordinance defines abortifacients as “any devise, medicine,
substance or practice which may damage, injure, interfere with the natural
development, endanger or cause the expulsion or death of an unborn child . . .
Abortifacients include Intrauterine Devises (IUD’s), and hormonal
contraceptives . . .” The Ordinance lists what it prohibits in an Annex.
Purportedly, this is merely
an implementation of Section 37 of R.A. 5921. What is this Section 37 all
about? It is part of the law governing the practice of pharmacy. Specifically
it enumerates what drugs and devises may not be sold without a doctor’s
prescription. It says: “No drug or chemical product or device capable of
provoking abortion or preventing conception as classified by the Food and Drug
Administration shall be delivered or sold to any person without a proper
prescription by a duly licensed physician.” Violation of this law is a criminal
offense punishable by a penalty found in Section 40 of the same law.
It is important to note,
therefore, that it is a penal law. Like any penal law it is limited strictly to
what it prohibits. Thus, who are covered by it and what exactly does it
prohibit?
Pharmacists are covered by
the prohibition. R.A. 5921 is about the regulation of the practice of pharmacy.
It is not a regulation of the activity of buyers of pharmaceutical goods but of
the actions of pharmacists.
What does RA 5921 prohibit?
What act does it punish? It does not prohibit the sale or dispensing without
prescription of every contraceptive or abortive devise. It prohibits the
dispensing without prescription only of contraceptive or abortive drugs or
devises “as classified by the Food and Drug Administration.” The FDA is the
national body empowered to regulate drugs.
An interesting question is
whether the Annex to the Alabang ordinance expands the list of drugs and
devises listed by the Food and Drug Administration. It seems to me that the
drugs and devises being currently sold over the counter are not in the FDA
list. Interesting too is the question whether a barangay council can determine
what doctors may or may not prescribe.
These, of course, are
technical matters that can easily be verified. I believe, however, that there
is something more eerily fundamental here. I see what is happening as an
attempt by a sector of the Catholic church to instrumentalize the power of the
state to impose Catholic belief on all others. This is something which gives
the Catholic religion a bad name. It is reminiscent of the Inquisition.
We might perhaps agree
about the evil of abortion. But when it comes to contraception, the nation
divides mainly along religious lines. The official Catholic teaching is that
artificial contraception is immoral. Other religions believe in good faith
otherwise. Seeking to impose Catholic belief and practices on non-Catholics and
others violates freedom of religion. Freedom of religion does not merely mean
freedom to believe. It also means freedom to act or not to act according to
one’s belief. And this too is the teaching of Vatican II in its decree
Dignitatis Humanae.
The Alabang ordinance is
not far from a statute declared unconstitutional which said: "Any person
who uses any drug, medicinal article or instrument for the purpose of
preventing conception shall be fined not less than fifty dollars or imprisoned
not less than sixty days nor more than one year or be both fined and
imprisoned."
Of course, the ordinance
authors will say that they are not prohibiting the use but merely regulating
the sale. But they insult the intelligence of villagers by thinking that the
Alabang residents are village idiots who do not have enough brains to see the
truth behind the pretense. One does not have to be a genius to understand that
the curtailment of sale is intended to prevent the use of what is sold. And
therein lies the gross offense. As one court said: “The present case, then, concerns
a relationship lying within the zone of privacy created by several fundamental
constitutional guarantees. And it concerns a law which, in forbidding the use
of contraceptives rather than regulating their manufacture or sale, seeks to
achieve its goals by means having a maximum destructive impact upon that
relationship. Such a law cannot stand in light of the familiar principle, so
often applied by this Court, that a ‘governmental purpose to control or prevent
activities constitutionally subject to state regulation may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms.’ Would we allow the police to search the sacred precincts
of marital bedrooms for telltale signs of the use of contraceptives? The very
idea is repulsive to the notions of privacy surrounding the marriage
relationship.”
Finally, the ordinance
purports to prescribe a criminal penalty. Only a real court and not a village
kangaroo court or vigilante may impose criminal penalty, and only after trial.
14 March 2011
***
Issues
arising from the RH Bills
Joaquin
G. Bernas, S.J.
13
March 2011
[The piece below is a talk
I gave to the Makati Medical Society. I reproduce it here for those who were
interested enough to comment on my blog on the Alabang Ordinance.]
I am honored to be invited
to speak before you today. Cutting the ribbon was a further unexpected honor.
But when I received your invitation I said to myself, Why me? Why not someone
closely connected with the medical profession. I also wondered what I could
possibly talk about. Luckily your emissary did not specify what you want me to
speak about, but he did say that the topic can be anything that has something
to do with morality.
Morality, of course, is a
very broad subject. This is good, because it gives me a wide field of topics to
choose from. However, since you are medical professionals and I am a priest who
also happens to be a lawyer, I thought that I should choose something
interdisciplinary, something about which you and I can dialogue. Fortunately
there is a topic that has been hugging the newspapers about which medical
scientists, lawyers, and religious leaders can have something to say from the
perspective of their respective specializations. I am, of course, referring to
the Reproductive Health Bills being discussed in Congress.
The Reproductive Health
Bill deals with family planning, contraception, and to some extent with
abortion. Personally, I have no use for these. Ultimately, however, and as the
Bills themselves say, it is about protection of human life, and I am interested
in that. Hence I would like to begin by asking: When does human life begin? The
Constitution has an answer to this question; the medical profession also has;
finally Pope John II has spoken about it.
I begin with what the
Constitution says: “The State . . . shall equally protect the life of the
mother and the life of the unborn from conception.” In the mind of those who
wrote the Constitution, (and I was one of them), life begins at conception.
More specifically, what we meant was that life begins at “fertilization.” We,
the constitution writers, of course, were not speaking as medical scientists.
What we intended the Constitution to mean was that the law should play it safe.
Following the precautionary principle, since there is the possibility that life
begins at fertilization, the protection of life should begin from the verified
moment of fertilization.
Correct me if I am wrong,
but I have been made to understand that the Philippine Medical Society, or at
least some of your members, also hold that life begins at fertilization.
[Confirmed by the President of PMA)
This, I believe, is also
the moral teaching of John Paul II’s Evangelium Vitae: He says: “. . . what is
at stake is so important that, from the standpoint of moral obligation, the
mere probability that a human person is involved [in the fertilized ovum] would
suffice to justify an absolutely clear prohibition of any intervention aimed at
killing a human embryo.”
On this basis I hold that
abortion under the Penal Code is committed when a human embryo is expelled or
destroyed any time from fertilization to the point of viability of the fetus.
If expulsion is done after viability, it is no longer abortion but infanticide,
a more serious criminal offense. (And incidentally, also serious sins against God).
Let me move from abortion
and infanticide to contraception, which is more controversial. In our society,
while people of good faith may find near unanimity on the matter of abortion as
defined in the Penal Code, there clearly is sharp division in the matter of
contraception. The division is drawn mainly along religious lines. The official
Catholic teaching, for instance, is that only natural family planning is
allowed, even if I am aware that many Catholics do not follow this teaching.
The religion of many non-Catholics, however, prescribes a different set of
rules on sexual morality. And, as much as Catholics, non-Catholics too have the
right of moral equality and moral freedom under our democratic system.
I do not think we can reach
agreement about contraception in our life time. Hence I would like to talk
about this insurmountable disagreement in the context of something we have to
live with. I am referring to freedom of religion guaranteed by the
Constitution, which incidentally is also the teaching of the Catholic Church
since the decree on Religious Liberty under the Second Vatican Council.
What does the Constitution
say about religious liberty? The text says, and I quote: “The free exercise and
enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed.” What does this mean? It means more than
just the freedom to believe or freedom to choose what church to affiliate with.
It also means the freedom to act or not to act according to what one believes.
Thus this freedom is violated when one is compelled to act against one’s belief
or is prevented from acting according to one’s belief. Let me therefore talk,
first of all, about contraception in the context of freedom of religion.
At the moment the government,
under the supervision of the Department of Health, makes contraceptive pills
and devises available without distinction as to whether those who avail of them
are Catholics or non-Catholics. We are assured by the Palace that the President
is firm in his decision not to stop what the Department of Health is doing. The
President recognizes the right of everyone to exercise responsible parenthood
in accordance with their moral beliefs. Clearly, the President may not, on
religious grounds, stop people from acting according to their moral belief if
their acts are neither prohibited by law nor harmful to public welfare.
I would also add that the
President is not defying Catholic teaching because Catholic teaching, for a
pluralist society like ours, requires that government interpret the common good
of the country not only according to the guidelines of whatever religion may be
the majority, in our case the Catholic religion, but also according to the
effective good of all the members of the community, including those belonging
to minority religions.
I understand, however, that
since there is as yet no law on the subject, some local officials do not allow
local offices to dispense contraceptive devises. Only recently, for instance,
the newspapers reported that barangay officials of an exclusive community
passed an ordinance prohibiting the dispensing of contraceptives. The authors
of the ordinance claim that they are merely implementing a provision of the law
on the practice of pharmacy which prohibits the dispensing of contraceptives
without prescription. But if you look at the Pharmacy Law, a medical
prescription is required only for those classified by the Food and Drug
Administration as needing prescription. I ask you, since you know this better
than I: Is there any contraceptive drug or device being openly sold over the
counter today which requires prescription?
I believe, however, that
there is something more eerily fundamental here. I see in this ordinance an
attempt by a sector of the Catholic church to instrumentalize the power of the
state to impose their personal belief on all others. This is something which
gives the Catholic religion a bad name.
But an important question,
of course, is whether there are in the market today contraceptive means which
not only prevent fertilization but even can expel a human embryo or cause
abortion. That is a question for science and the Food and Drug Administration
to answer. If there are, they should be specifically identified and taken out
of the over the counter market.
It is also important to
recall that, while adherence to religious liberty is theologically founded and
ecumenical, theology is not the only reason for adherence to the principle.
There are additional reasons. In fact it has been said that Vatician II’s
affirmation of religious liberty in Dignitatis Humanae was as much motivated by
historical experience religious persecution of the Jews as by theology. We who
have not experienced massive religious persecution must learn from the lessons
of history.
There are other issues that
can arise from the RH Bill insofar as it relates to religious liberty. Let me
just mention a few.
The implementation of the
RH Bill will be done by government health workers. What happens if the duties
of government health workers will require them to act against their religious
belief? This is something which, I believe, is not taken up in the existing
draft of the RH Bill. But in constitutional law there is a concession to
conscientious objectors in the military. Those who are against war as immoral
are not sent to the front but are given desk assignments. I hope that a similar
concession can be given to objecting health workers.
Another religious liberty
issue can arise from the duty imposed on employers. The latest version of the
bill which I have seen has retained the provision which says that employers
with more than 200 employees shall provide reproductive health services to all
employees in their own respective health facilities. Those with less than 200
workers shall enter into partnerships with hospitals, health facilities, and/or
health professionals in their areas for the delivery of reproductive health
services. Notably, however, it does not specify the kind of reproductive health
services to be given. But the Department of Labor is given the responsibility
of implementing this provision. We will have to await how the Department of
Labor will implement this and whether allowance will be made for religious
objection.
Another issue is sex
education. Parents are justifiably concerned about the proper moral training of
their children. The approved bill has retained the provision on a common sex education
program for public and private schools to be formulated by the Department of
Education (DepEd), the Commission on Higher Education (CHED), the Technical
Education and Skills Development Authority (TESDA), the DSWD, and the DOH.
Curiously, however, the bill also says that ëthe DepEd, CHED, DSWD, TESDA, and
DOH shall provide concerned parents with adequate and relevant scientific
materials on the age-appropriate topics and manner of teaching reproductive
health education to their children.î This seems to be an indication that the
bill is open to making exception for parents who wish to teach their own
children? If this exception for parents is what the bill envisions, there is a
constitutional model for it. The Constitution says: “At the option expressed in
writing by the parents or guardians, religion shall be allowed to be taught to
their children or wards in public elementary and high schools within the
regular class hours by instructors designated or approved by the religious
authorities of the religion to which the children or wards belong, without
additional cost to the Government.” Needless to say, religious schools will
also want to design their own program.
Is it legitimate for the
government to use public money for contraceptive services? Incidentally, the RH
bill, in its definition of methods of family planning, has deleted specific
reference to “pill, intra-uterine device (IUD), injectables, condoms, ligation,
vasectomy . . .” It now merely says “safe, effective and legal methods, whether
the natural, or artificial that are registered with the Food and Drug
Administration (FD) of the Department of Health (DOH).” As to the use of public
funds for these, it is good to remember that public money has no religious
character. The rule on how to spend it is simple. Money can be drawn out of the
public treasury only “in pursuance of an appropriation made by law.” The only
limitation on Congress when funds are available is that the appropriation must
be for a public purpose.
Finally, let me just say that
the RH Bill is a work in progress. The House version will still have to be
debated in plenary sessions. If approved by the House, it will still go to the
Senate for the same deliberative process. What will finally come out will be
colored by inputs made by religious leaders, lawyers, and health professionals
like you. It therefore gives you an opportunity to make a contribution towards
making a reproductive health law that is best for the Filipino people.
13 March 2011
***
Burn RH Bill to roast a pug
Fr. Joaquin
Bernas, SJ
14
February 2011
Unless
I am completely out of the loop, my fearless forecast is that an RH
Bill
will become law. Demonstrations will not stop it. Nor do I see the justices of
the Supreme Court agreeing to declare such a law totally invalid.
An
RH Law would be the product of the exercise of police power. An exercise of
police power is evaluated on the basis of the requirements of substantive due
process. The requirements of substantive due process are simple enough to
understand. To be valid, the exercise must, first, have a valid public purpose
designed to serve the general welfare and not merely private benefit, and second,
the means used to achieve such purpose must be reasonable, not oppressive nor
arbitrary. Nor must the means used be the best to achieve the desired goal.
Reasonableness does not demand the best means nor the sure-fire means. When the
RH Bill becomes law and is challenged, it will be tested according to these
standards.
What
are the chances of an RH Law flunking these standards? First, will the coming
RH Law have a valid public purpose? The public purpose of the RH Law is written
all over its “Declaration of Policy” – protection of basic human rights to
reproductive health, respect for cultural and religious beliefs and responsible
parenthood, gender equality and equity, promotion of the welfare of children.
As stated, these purposes are all defensible.
What
about the means used to achieve these goals? It would be a thankless herculean
task to argue that the whole thrust of the RH Bill is unreasonable, abusive,
oppressive and arbitrary. But this does not mean that the entire Bill is
invulnerable to challenge or to improvement. Let me attempt to discuss some of
the points that might be debated.
Freedom
of religion can give rise to some debatable issues in the implementation of the
law. Let me just mention some.
Parents
are justifiably concerned about the proper moral training of their children.
The approved bill has retained the provision on a common sex education program
for public and private schools to be formulated by the Department of Education
(DepEd), the Commission on Higher Education (CHED), the Technical Education and
Skills Development Authority (TESDA), the DSWD, and the DOH. Curiously,
however, the bill also says that ‘the DepEd, CHED, DSWD, TESDA, and DOH shall
provide concerned parents with adequate and relevant scientific materials on
the age-appropriate topics and manner of teaching reproductive health education
to their children.” Is this an indication that the bill is open to making
exception for parents who wish to teach their own children?
If
this exception for parents is what the bill envisions, there is a
constitutional model for it. The Constitution says: “At the option expressed in
writing by the parents or guardians, religion shall be allowed to be taught to
their children or wards in public elementary and high schools within the regular
class hours by instructors designated or approved by the religious authorities
of the religion to which the children or wards belong, without additional cost
to the Government.” Needless to say, religious schools will also want to design
their own program.
The
RH bill has also retained the provision which says that “employers with more
than 200 employees shall provide reproductive health services to all employees
in their own respective health facilities. Those with less than 200 workers
shall enter into partnerships with hospitals, health facilities, and/or health
professionals in their areas for the delivery of reproductive health services.”
Notably, however, it does not specify the kind of reproductive health services
to be given. But the Department of Labor is given the responsibility of
implementing this provision. We will have to await how the Department of Labor
will implement this and whether allowance will be made for religious objection.
Is
it legitimate for the government to use public money for contraceptive
services? Incidentally, the RH bill, in its definition of methods of family
planning, has deleted specific reference to “pill, intra-uterine device (IUD),
injectables, condoms, ligation, vasectomy . . .” It now merely says “safe,
effective and legal methods, whether the natural, or artificial that are
registered with the Food and Drug Administration (FD) of the Department of
Health (DOH).” As to the use of public funds for these, it is good to remember
that public money has no religious character. The rule on how to spend it is
simple. Money can be drawn out of the public treasury only “in pursuance of an
appropriation made by law.” The only limitation on Congress when funds are
available is that the appropriation must be for a public purpose.
What
this all comes down to is that a shot-gun approach to the RH Bill will not
succeed. You don’t burn an entire house to make lechon. Nor will a Tahrir
Square type of demonstration stop it. Such an approach can be a manifestation
of intellectual bankruptcy. One must challenge each specific objectionable part
and argue it out. After all, this is not a fight against a Hosni Mubarak.
14 February 2011
***
Back
to the RH Bill
Fr.
Joaquin Bernas, S.J.
7
February 2011
The House of
Representatives has approved its final version of the RH Bill. I myself think
that it is a much improved version. It will next go to the Senate and I
anticipate that the two houses will agree on a final version to be sent to the
President for his approval. I am certain, from what the President has been saying
so far, that he will not veto what is presented to him. Thereafter it will
undergo the required publication before it finally takes effect. After these
happen, the debate on the bill, law by then, will go to a different level.
The judicial battle lines
will be along moral fronts, often dependent on factual issues and where our
people divide largely on the basis of religious belief, (sometimes appealing to
science or pseudo-science), and along constitutional lines, which should be
“fun.” I am also aware that people are often tempted to consider whatever they
do not agree with as unconstitutional This, of course, is ridiculous.
Today I propose to join in
the constitutional “fun” and leave moral issues to holier men and
professionally trained moralists while also allowing for occasional excursions
into science, about which I know little.
The opponents of the RH
Bill will make a constitutional issue out of it arguing from various
constitutional provisions. Likely starting points are two constitutional provisions
found in Article II. We might, therefore, begin by asking what the binding
force of Article II is.
The article is titled
“Declaration of Principles and State Policies.” Sections 1 to 6 contain the
“Principles” that are already engrafted into the structure and life of the
nation. The State cannot depart from these principles. For instance, Congress
may not set up a dictatorial government because that would run counter to
Section 1 which declares our state to be democratic.
Sections 7 to 28 are called
“State Policies.” Except for one or two of them, they do not yet contain
commands that must be followed. Unlike the provisions of the Bill of Rights,
they await implementing legislation from Congress.
There is a wide range of
options open for Congress to use in implementing them. In the process of
choosing, there necessarily will be a wide room for debate to determine what is
best for the welfare of the nation. In the debate, conflicting value judgments
will come into play. But as the Compendium on the Social Teaching of the Church
notes, “Those responsible for government are required to interpret the common
good of their country not only according to the guidelines of the majority but
also according to the effective good of all the members of the community,
including the minority.”
Two provisions in Article
II will play a starting role in the constitutional debate. They are Sections 11
and Section 12.
Section 11 says: “The State
values the dignity of every human person and guarantees full respect for human
rights.” But this provision will not give the judiciary a handle for passing
judgment on the constitutionality of the RH Bill. It is a motherhood statement.
And the supporters of the RH bill will simply say that this is precisely the
reason why they have made an effort to make the Bill reflect this non-debatable
value.
Section 12 has a little
more to say. It says: “The State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic autonomous social
institution. It shall equally protect the life of the mother and the life of
the unborn from conception.”
The first sentence has been
the subject of a number of Court decisions which clearly declare that how to
protect the family is for Congress to decide. The Constitution makes no
specific prescription.
As for the second sentence,
the protection given to the unborn is only “from conception,” that is, from the
earliest moment of life. The earliest that life begins is the moment of
fertilization. This is enough to justify the prohibition of abortion clearly
repeated in the RH Bill. But it says nothing about what to prohibit before life
begins.
This brings us to the use
of contraceptive methods. There are those who argue that contraception kills
life. That is true if the contraceptive means used have the effect of expelling
a fertilized ovum. Those who argue that contraceptives currently in the market
kill life must be able to point to the precise contraceptive devises that are
abortive. A sweeping generalization is irresponsible.
Very much involved in the
debate about contraception is the matter of religious liberty. We have to be
aware of the fact that we live in a pluralist society where various religious
groups disagree about the morality of artificial contraception.
Freedom of religion 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 as
defined in the Penal Code, there clearly is sharp division in the matter of
contraception. The division is drawn largely along religious lines. The
official Catholic teaching, for instance, is that only natural family planning
is allowed. The religion of many non-Catholics, however, prescribes a different
set of rules on sexual morality. And, as much as Catholics, they too have the
right of moral equality and moral freedom under our democratic system. The RH
Bill clearly refuses to require all to follow Catholic teaching.
There are other possible
constitutional issues in the RH Bill but space limitation allows me to say only
so much for now.
7 February 2011
***
The RH talking points
Fr. Joaquin Bernas, SJ
15 November 2010
Not too long ago a group of us three
Jesuits published what we proposed as talking points on the controversy about
the RH Bill. Apparently the venture at initiating dialogue is succeeding. Let
me comment on a number of points brought up by some respondents.
First,
we hear it said that clearly medical science equates conception with
fertilization. True, but other medical authorities speak of implantation as the
beginning of pregnancy. Who is right?
For
my part, I prefer not to enter into the debate among medical authorities. But
let me say something about the Constitution. For me, the meaning of conception
in the Constitution is fertilization. The drafters did not mean to make a
scientific judgment. Rather, they thought that in the face of disagreement
among experts in medical science, they would rather play it safe on the side of
life. This, I believe, is also the moral teaching of John Paul II’s Evangelium
Vitae: “. . . what is at stake is so important that, from the standpoint of
moral obligation, the mere probability that a human person is involved [in the
fertilized ovum] would suffice to justify an absolutely clear prohibition of
any intervention aimed at killing a human embryo.”
Second,
it has been said that sociological studies and medical studies attest to the
damage caused by artificial contraception. However, it cannot be denied that
the main opposition to artificial contraception is predominantly based on
religious grounds. And the debate is going on within a pluralist state system.
In this context, I hold that it is not legitimate for the state to impose on
non-Catholics what is predominantly a Catholic rule of conduct.
Third,
there have been two negative reactions to the “two track” proposal of the
Talking Points. One says that the state would be funding contraception which is
per se evil. But the view that it is per se evil is contradicted by
non-Catholics who, as I noted above, may not be forced by the state to turn
Catholic in their actions.
Another
reaction, which I find more interesting although not novel, is that a two-track
system would be funding a special concession to a small group for purely
religious reasons. I guess the key phrase here is “for purely religious
reasons.”
Clearly,
the reasoning behind such position is that according to the Constitution public
money may not be used for religious purposes. To start with, I would approach
this objection by pointing out that there are two religion provisions in the
Constitution: the non-establishment clause and the free exercise clause. The
prohibition on the use of public money for religious purposes flows from the
non-establishment clause.
The
question I would ask is: In case of conflict between the non-establishment
clause and the free-exercise clause, which should prevail? I have always taught
that the non-establishment clause is in service of the free exercise clause. In
other words, the state should not prefer one religion over others because
history attests that such preference usually impairs the free exercise of
religion of those who are not preferred. This is the reason, for instance, why,
in spite of the non-establishment clause, the Constitution allows that public
money be used for the salaries of chaplains in the military and leprosaria. The
rule allows soldiers and lepers whose movements are limited to be able to
practice their religion.
Incientally,
while our Constitution has an explicit provision allowing salaries for military
chaplains, the US Constitution does not. Nevertheless it allows salaries for
military chaplains to insure the free exercise of religion.
I
suggest that the expenses involved in the “two track approach” can be justified
by the argument similar to the justification of salaries for military chaplains
– free exercise of religion. The expense is not for promoting religion but for
protecting the right of health workers to the free exercise of their religion
while doing their civic duty.
Moreover,
it is not true to say that any public expense that might benefit religion is
always prohibited. There are allowable uses of public money that can have the
effect of benefiting religion.
Early
in Philippine history the government put out a postage stamp depicting a
Eucharistic Congress of the Catholic church. This was challenged as an illegitimate
use of public money. But the Court said that it was justified on the argument
that whatever benefit the Catholic church might receive was only incidental to
the secular goal of promoting knowledge about the Philippines. The incidental
benefit to the church did not make the expenditure illegal.
Similarly,
the grant of a large amount of money for the construction of a science
laboratory in a Catholic school was allowed in spite of the fact that the grant
freed the Catholic school’s other funds for religious use. The grant for the
secular purpose of promoting science an incidental benefit to the religious
mission of the school but was legal.
Along
similar lines it can be said that the “two track” system will protect the
freedom of religion of Catholic health workers even as they are required to
promote the goals of the RH Bill. The benefit is directly for individuals and
for the promotion of the goals of the law and only incidentally for the benefit
of religion, if at all. (Although this might disappoint bishops and priests who
are ready to become martyrs!)
15
November 2010
***
Right
to life of the unborn
Fr.
Joaquin Bernas, SJ
18
October 2010
Very pertinent to the
debate about reproduction rights is the right to life. Our Constitution says
that the State “shall equally protect the life of the mother and the life of
the unborn from conception.” Insofar as the “life of the unborn” is concerned,
is this provision merely a reaffirmation of the prohibition of abortion? In
order to answer this question, we must begin by looking at what abortion means
in the Penal Code.
Article 256 RPC penalizes a
“person who shall intentionally cause an abortion.” Although the law itself
does not define what abortion means, commentators are clear about what it does
mean. For instance, my Criminal Law professor, the late Luis B. Reyes,
following local and Spanish commentators, says that under our law abortion
means the expulsion of the fetus before the sixth month or before the term of
its viability. If the fetus has reached viability, the crime is no longer
abortion but infanticide.
Similarly, abortion as a
penal offense prohibited by Canon Law (c. 1398) is defined as “any action
resulting directly in the ejection of an immature fetus from the womb of the
mother.”
It is worthy of note that
RH 5043 says that “nothing in this Act changes the law on abortion, as abortion
remains a crime and is punishable.” Does this therefore mean that RH 5043
intends to protect only a fetus already in the mother’s womb to the exclusion
of the fetus before implantation? This is not clear in RH 5043 even if the
Guiding Principles (Section 3) seem to suggest broader protection of rights not
limited to life in the mother’s womb.
At any rate we do have the
constitutional provision which says that the State “shall equally protect the
life of the mother and the life of the unborn from conception.” My
understanding of this provision is that it protects life even before the
fertilized ovum reaches the mother’s womb. Why do I say this?
Our constitutional
provision was discussed and crafted at a time when many were aware of the
United States Supreme Court decision in Roe v. Wade which allowed abortion up
to the sixth month of pregnancy. This is contrary to both our Penal Code and
Canon Law. 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.
The unborn's entitlement to
protection begins "from conception," that is, from the moment of
conception. The moment of conception is popularly understood as the moment of
fertilization which takes place outside the mother’s womb. The intention of the
Constitution is to protect life from its beginning, and the assumption is that
the gradual development of human life begins at conception and that conception
takes place at fertilization (even if medical literature seems to see conception
as the moment of implantation). 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 when biological life begins.
In other words, from the
moment of fertilization there already is life. The life is neither that of the
father or of the mother. It is its own life. The life will not become human if
it is not already human at fertilization. In fact its personal characteristics
would already be determined, as genetic science confirms.
From this it can be seen
that the intention of the Constitution 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, even if there is as yet no “person” who can be the subject of rights.
However, this is not to say
that at no time may the life of the fetus be risked. It may, when balanced
against the life, health and security of the mother – or what constitutional
law calls “compelling state interest.”
This brings us to the
question whether the reproductive bill allows or even prescribes the use of
birth control methods that have the effect of blocking a fertilized zygote from
being implanted in the uterus or of expelling a fertilized zygot before
implantation. This is a question which, while it has constitutional, religious
and moral implications, must first be answered by medical science. Has the
scientific aspect of the question been sufficiently explored in the course of
the debates over the reproductive health bill? My impression is that it has
not. The practical implication of this is that there may be need to analyze
scientifically what kind of contraceptive means are now being dispensed to
determine whether they are merely contraceptive or already have the effect of
preventing implantation and consequent loss of a fertilized zygot.
18 October 2010
***
Some
issues about the RH Bill
Fr.
Joaquin Bernas, SJ
11
October 2010
In my column last week I
ended with a postscript saying that this week I would write about the question
whether a public official may impose his religious belief on those who follow a
different set of beliefs. In response one of my readers wrote saying that he
could not wait for what I had to say. And another suggested a piece on whether
church can tell government what to do.
Actually, however, what I
have to say is very simple; that is, very simple for those who accept that one
of the fundamental tenets which our country lives by is the free exercise of
religious profession and worship. I believe that freedom of religious
profession and worship is a right of everyone no matter how bizarre his or her
religious beliefs might be and provided that the externalization of one’s belief
does no harm to any one.
Briefly, I would say that
President Aquino should not prevent people from practicing responsible
parenthood according to their religious belief nor may churchmen compel
President Aquino, by whatever means, to prevent people from acting according to
their religious belief.
I, and other churchmen I
know, go by the teaching of the Compendium on the Social Teaching of the Church
which says: “Because of its historical and cultural ties to a nation, a
religious community might be given special recognition on the part of the
State. Such recognition must in no way create discrimination within the civil
or social order for other religious groups” and “Those responsible for
government are required to interpret the common good of their country not only
according to the guidelines of the majority but also according to the effective
good of all the members of the community, including the minority.” I am glad,
therefore, that President Aquino wants to bring non-Catholics into the
dialogue.
In 2008 the debate on the
Reproductive Health Bill was started but did not end. It was shelved for a
while to give way to concerns about election. Now the debate has started again.
I understand that there are now six or seven different bills filed in the House
of Representatives all about reproductive health.
I sympathize with President
Aquino who is being pushed into a corner by well-meaning people who believe
that various provisions of proposed RH Bills are paving the path through which
the Filipino people would be led to eternal damnation. What is my own take on
the subject?
Of course, I am against
eternal damnation for anybody. But I believe that we must be resigned to a long
drawn out debate. Much as people would like their opponents to shut up, they will
not shut up. The debate now is in media and in the House of Representatives. It
is also beginning in the Senate. And even if Congress succeeds in crafting a
bill which the President may be willing to sign, its various provisions will
very likely take more time of the Supreme Court than the Cityhood laws have
taken.
This should surprise no one
because religion and the Constitution are very much involved in the debate.
Religion and the Constitution are very much at the heart of the life of our
people. Besides, debatable scientific terms and sociological issues are also
involved.
In 2009 it was difficult
for many, myself included, to be totally for or totally against the RH Bill
because it had many facets. Today I am still awaiting the consolidated version
of the various RH bills that have already been filed. I anticipate that what
divided people then would still be present in whatever bill may finally come
out for debate. The most that I would like to do now is to identify and
enumerate some of the matters about which we will certainly disagree among
ourselves.
I begin with the right to
life. When does human life begin? We probably are all agreed that man must not
destroy human life. Our Constitution protects life “from conception.” There is
some indication in the deliberations of the 1987 Constitution Commission that
this means “from fertilization”. But there are contrary views. Who will decide
which view is correct?
The determination about the
beginning of human life will also be relevant to the debate on abortion.
Clearly abortion is prohibited and penalized by law. But when does abortion
take place? At what stage of the reproductive process will interruption be
considered an offense against life? At fertilization or only after
implantation? Are there birth control devices or pills which are abortifacient?
If so, in what way? There is debate about the abortifacient effect of some
birth control means. Who is to settle this debate – Congress? Courts? Science?
Church? Rallyists? I understand that the various pharmaceutical and medical
literature on this are conflictive.
There is also debate about
how and who should teach sexual morality to children. Sexual morality is very
much an aspect of religion. But various religions differ in the their teaching
about sexual morality. Should the state dictate what to follow and determine
how this should be taught in schools, public or private? And what should be the
role of parents in this? The Constitution recognizes the primary right of
parents in the rearing of the youth.
Earlier versions of the RH
bill also contained impositions on employers regarding the reproductive health
of employees and also penal provisions. All these and more will need much
discussion.
There are those who are
threatening to mobilize groups into rallies against RH the bills. Rallies are
good for election campaigns and other political objectives. But they are hardly
the suitable vehicle for a rational examination of conflicting moral issues.
11 October 2010
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