Our topic is the nature of reproductive rights as part of the greater sum of human rights. In legal terms, human rights form the totality of the freedoms, immunities, and benefits that, according to modern values – specially at an international level – all human beings should be able to claim as a matter of right in the society in which they live. In international law, the basic document is the non-binding but authoritative Universal Declaration of Human Rights, accompanied by the binding documents known as the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights. In national or domestic law, the basic document is the Philippine Constitution, particularly Article 2 on Declaration of State Policies, and Article 3 on the Bill of Rights. Our Constitution, Art. 2 Sec. 15 specifically provides: “The State shall protect and promote the right to health of the people and instill health consciousness among them. ” This right to health is now viewed as including the right to reproductive health. Reproductive rights constitute the totality of a person‟s constitutionally protected rights relating to the control of his or her procreative activities. Specifically, reproductive rights refer to the cluster of civil liberties relating to pregnancy, abortion, and sterilization, specially the personal bodily rights of a woman in her decision whether to become pregnant or bear a child. The phrase “reproductive rights” includes the idea of being able to make reproductive decisions free from discrimination, coercion, or violence. Human-rights scholars increasingly consider many reproductive rights to be protected by international human rights law. When we speak of Philippine internal laws and politics, we are speaking of the so-called “horizontal” strand of the human rights movement. But as constitutionalism spreads among states, we now speak of the so-called “vertical strand” of the new international law, that is meant to bind states and that is implemented by the new international institutions. Filipino politicians seem to be aware only of the horizontal but not of the vertical dimension of the human rights movement.1 But the truly novel developments of the last half century have involved primarily the vertical dimension. Thus, contrary to the misimpression of many of our politicians, the national debate on reproductive health is not only limited to the Constitution, but necessarily include Philippine obligations under the legally binding obligations of the International Covenant on Economic, Social, and Cultural Rights, as well as other treaties to which the Philippines is a state party. The urgency of enforcing reproductive rights in our country was raised at the 1993 Vienna World Conference, when the UN Committee on Economic, Social, and Cultural Rights2 drew attention to: The shocking reality . . . that States and the international community as a whole continue to tolerate all too often breaches of economic social and cultural rights which . . . would provoke horror and outrage and would lead to concerted calls for immediate remedial action. In the human rights movement, the mechanisms and processes for the delivery of health services are themselves morally compelling. Evaluation of health programs emphasizes distribution in outcomes, not only averages. We are concerned about the entire distribution, because reproductive rights theories take seriously the idea that every human being is worthy of respect. Advocates of human rights pay particular attention to disaggregated data among women and the poor, because they are particularly liable to practices and prejudices that weaken their agency and the social basis of their self-esteem. Finally, reproductive rights approaches accommodate adoptive preferences. Many poor women do not receive information on how to receive reproductive health care. In addition, our underprivileged women have to accept standards lower than what they need, want, or deserve. This is the reason why we hold forums like these – to raise consciousness, provide political education, and take measures in civil society to expand the imagination and the demands of the excluded group of women who belong to the poorest of the poor.3 Why the RH Bill is Controversial The two most controversial provisions of the RH bill are:
Sec. 7. Access to Family Planning. – All accredited public and private health facilities shall provide a full range of modern family planning methods, except in specialty hospitals which may render such services on an optional basis. No person shall be denied information and access to family planning services. Sec. 8. Maternal Death Review. Sec. 9. Family Planning Supplies as Essential Medicines. – The National Drug Formulary shall include hormonal contraceptives, intrauterine devices, injectables and other safe, legal and effective family planning products and supplies in accordance (with FDA guidelines). These products and supplies shall also be included in the regular purchase of essential medicines and supplies of all national and local hospitals, provincial, city, and municipal health offices, including rural health units.
Photo by archiegonzalez.lens.ph In brief, the RH bill merely wants to empower a woman from the poorest economic class to march to the nearest facility operated by the Department of Health or the local government unit, to demand information on a family planning product or supply of her choice. The bill, at the simplest level, wants to give an indigent married woman the freedom of informed choice concerning her reproductive rights. If the bill is highly controversial, it is not because it is dangerous to humans or to the planet. It is not subversive of the political order. It is not a fascist diktat of a totalitarian power structure. The reason this bill is emotionally charged is because of the fervent opposition of the Catholic church in the Philippines and those who wish to be perceived as its champions. Every year that a new Congress is convened, an RH bill is filed, provokes heated debate, consumes tons of newsprint, and then it lapses into a coma. There it remains, until it is resurrected at the next Congress, only to go through the same rigmarole of passion, flailing arms, doomsday scenarios, threats of Armaggedon, and an implicit competition among its champions for canonization as defender of the faith. And yet the rest of the Catholic world is unimpressed by the implicit threat that if the Congress passes the RH bill, an asteroid will dive straight into planet earth and obliterate the entire human race, particularly those who are pro-RH. In fact, the very opposite has happened. The majority of Catholic countries have passed reproductive health laws, led by Italy, where the Vatican is located. The other Catholic but pro-RH countries are: Spain, Portugal, Paraguay, Mexico, Guatemala, Ecuador, Colombia and Argentina. Of 48 Catholic countries profiled by the UN Population Fund, only six countries did not have an RH law. The Philippines is among these six stragglers. Apart from the Catholic church, all other major religions in our country support RH, namely: Iglesia ni Cristo, National Council of Churches in the Philippines, Philippine Council of Evangelical Churches, the Interfaith Partnership for the Promotion of Responsible Parenthood, and the Assembly of Darul-Ifta of the Autonomous Region in Muslim Mindanao. It is inaccurate to employ the term “Catholic church” in describing the anti -RH group. The more accurate term is “Catholic Bishops Conference of the Philippines,” because the CBCP is not the entirety of the Catholic church. Under the more enlightened philosophy of Vatican 2, the Church is not the pope or the bishops or the priests. These Church officials are not a privileged caste; they are not necessarily superior to the entire faith community. The Church is the whole people of God, and there are many Catholics who adhere to the teaching of liberation theology that the Catholic church should observe a preferential option for the poor. Before we seek salvation, we must seek liberation for the poor from poverty, disease, and untimely death. The Filipino people, regardless of religion, have already voted in favor of RH. According to the survey conducted just this June 2011 by Social Weather Stations, 73 percent want information on legal methods available from the government, while 82 percent say family planning method is a personal choice. This is the will of the Filipino people; it is the democratic expression of what the public wants from government. The anti-RH groups are mute on this ineluctable fact. The inflexibility of the traditional Catholics is anchored on the encyclical entitled Humanae Vitae issued in 1966 by Pope Paul 6. In paragraph 11, he wrote: “The Church . . . teaches that each and every marriage must remain open to the transmission of life.” In applying natural law, the encyclical relies on the rhythm method, or the restriction of marital relations to sterile periods of the month. Thus, the basis of the encyclical is merely biological. I have to emphasize that the encyclical is NOT a so-called non-infallible statement of the Church. This encyclical is fallible.
Humanae Vitae caused a worldwide tempest. It created a backlash that eventually resulted in placing limits on Catholic teaching authority on moral issues. This backlash has taken the form of the doctrine of primacy of conscience. This doctrine is based on the document entitled Declaration on Religious Freedom issued by Vatican Council 2. In Note 3, it declares that we are bound to follow our conscience faithfully in all our activity, and that no one is “to be forced to act in a manner contrary to one‟s conscience. Nor, on the other hand, is one to be restrained from acting in accordance with one‟s conscience, especially in matters religious.” Now let me surprise you, and shock the CBCP, by giving you the ultimate word. The present Pope Benedict 16 used to be known as Fr. Joseph Ratzinger. As a young man in 1968, he served as Chair of dogmatic theology at the University of Tubingen. In this capacity, he wrote a commentary on the encyclical Gaudium et Spes or the Church in the Modern World. He said: “Above the pope . . . stands one‟s own conscience, which has to be obeyed first of all, if need be, against the demands of church authority.” 4 Thus, in effect, the pope himself teaches that there is a basic right for RH advocates to observe the primacy of conscience. Why the RH Bill is Urgently Necessary We should urge Congress that in both chambers, the debates should conclude and legislators should come to a vote, in order that this recurrent issue can stop hogging the national agenda every time a new Congress is convened. Let the Filipino people know the principled stand of every legislator, so that in the coming 2013 elections, the electorate, in whom reposes the sovereign might of the state, will know whom to reward and whom to punish. There is an urgent need for an RH law, because 11 mothers die everyday from childbirth- and pregnancy-related complications. According to the 2008 National Demographic and Health Survey by the National Statistics Office: 11 MOTHERS DIE EVERYDAY! 3,000 to 5,000 mothers die every year 162 mothers out of 100,000 live births die 11% of all deaths among women of reproductive age in the Philippines are maternal deaths 23 million (from 15 to 49 years old) are of reproductive age 15 million are at risk of pregnancy Thus, ladies and gentlemen, the statistics in favor of an RH law are overwhelming, while the sophistic procrastination of politicians are underwhelming. Smokescreen: The Logical Fallacies in the RH Debate There is no idea as powerful as an idea whose time has come. Politicians seeking to earn the favor of the Catholic hierarchy pose and preen on the national stage. But for every single day that we consume in nitpicking debate resulting in logical fallacies, the clock ticks and every single day 11 women die from childbirth complications. Before this day is over, 11 Filipinas from the poorest section in society will breathe their last. But look at what the politicians are doing. Devoid of any substantial argument on the merits, they engage in what any college class on Logic would immediately recognize as a logical fallacy. Let me give you just a few examples. The Abortion Fallacy. Abortion is an artificially induced termination of pregnancy for the purpose of destroying an embryo or fetus. Contraception is the prevention of pregnancy from being a consequence of sexual intercourse. Therefore, if there is no pregnancy, there can be no abortion. But anti-RH groups keep chanting the mantra of “abortion” or “abortifacient.” This is the fallacy of the red herring, because it uses irrelevant material to prevent a conclusion being reached in its absence. The Fallacy of the Beginning of Life. Identification of the precise time when life begins is recklessly claimed by some people who can only be called delusional. The truth is that there is no accepted, authoritative finding accepted by the medical and scientific professions on when life begins, much less on when the soul begins. The Constitution Article 2 Sec. 12 provides that the state “shall equally protect the life of the mother and the life of the unborn from conception.” Conception is the act of becoming pregnant or of creating a child in the womb. It could be defined as the process by which a set of human cells becomes human with characteristics defined as human life. Conception is not an exact scientific term.
The issue is whether conception begins at fertilization or at implantation. Fertilization is the process of penetration of the egg cell by the sperm cell, and the combination of this genetic material to form the fertilized egg or zygote. Implantation is the attachment of a fertilized ovum on the wall of the uterus. According to the statement issued in August 2011 by the Universal Health Care Study Group, which is a part of the National Institutes of Health in UP Manila: “No one equates conception with fertilization.” Moreover: “All contraceptives, including hormonal contraceptives and IUDs, have been demonstrated by laboratory and clinical studies, to act primarily prior to fertilization.” To summarize, conception begins only after fertilization, but there is no precise scientific definition of the precise moment when the set of cells can be called human. Delimiting a specific time frame is simply not realistic at this time. This is the logical fallacy of affirming the consequent, meaning it affirms the consequent in order to prove the antecedent. It is also the fallacy of amphiboly, meaning the fallacy of ambiguous construction. The Fallacy of Population Imperialism. It is claimed that the US needs widespread access to the mineral resources of less developed countries like the Philippines. But population pressure and the anti-imperialist attitudes of the youth stand in the way of the American hegemony. Therefore, births in certain countries in the Philippines should be limited, and the RH bill is just a form of US imperialism. This scenario is highly likely, and I would not put it past the US to develop this strategy. However, family planning is not only an advocacy of the US, but also of the entire United Nations. In addition, the best economists of the country, who just happen to be UP professors, issued in 2008 a paper entitled “Population, Poverty, Politics, and the RH bill.” It supports an RH law as an integral part of the strategy for development and poverty reduction. The Economics 27 said categorically: “A rapidly growing population has a negative impact on economic development.” And they noted: “Contraceptive use remains extremely low among poor couples, because they lack information about, and access, to them.” To demonize lower population growth because the U.S. advocates family planning for developing countries is a logical fallacy. This is the fallacy of argumentum ad populum, appealing to popular anti-American prejudice instead of presenting relevant material. The Argument that Pro-RH Advocates are Sinful or Stupid. Anti-RH groups use various personal insults against us, as if name-calling will suffice to stop or even reduce maternal mortality. This is the fallacy of argumentum ad hominem, or undermining an opponent‟s argument by insults calculated to substitute personal traits for arguments on the merits. I will stop here, but I have just shown you that the RH debate in Congress is a long-winded theater art on how to trivialize an important national policy. I suspect that the debate will not end by the time budget season begins, and all pending bills will be shelved. If we allow the critics to have their way, RH will be a work in progress, until climate change brings about another global flood and obliterates all of human civilization, including those who think that a few mothers dying everyday from childbirth complications is a mere negligible factor in the grander scheme of things, like the coming 2013 elections. Enough! Send an email to every single senator and congressman, tell him you are watching, and that you will not vote for him forevermore if he is anti-RH. Not only that: campaign actively against anti-RH creatures. Take our campaign to Facebook, Twitter, Google, blogs, and every form of social media. If any of the news media purposely fail to present a balanced presentation of the RH debate, email the editor and appeal to the ethics of the journalism profession. Today we mark the centennial of the great UP college of law. At one time, I earned a gold medal here as Best Debater. In commemoration, Sen. Pia Cayetano and I challenge any UP law graduate in the Senate to a debate on RH, in any neutral public forum to be shown on TV, before a university audience. Let the young people decide the social legislation of this country.
Effects of Reproductive Health Bill in the Philippines This is a Bill about a range of matters to do with reproduction. It is very broad, and while it does contain good health messages such as the promotion of breastfeeding, gender equity, good infant and child nutrition, and the elimination of violence against women, it is also directed primarily and aggressively at population control. It is important to note that whereas the general tone of the Bill does appear to be positive and health‐promoting in style, upon closer scrutiny it contains deeply problematic principles, impositions and subtexts. Legislation must always be consi dered on several levels, and ultimately this Bill must be examined with a view to testing its possible limits when applied in real world contexts. The Bill is overtly about state intervention into people‟s private lives by strongly promoting contraception and its enforced provision, state run sex education with potential undermining of parental influence, and denying conscientious objection. However, a critical subtext of the bill is that it has the strong potential to lay the ground for state sanctioned abortion, even though it appears to uphold the current illegal status of abortion. Other subtexts include targeting the poor for population control and promoting reproductive technology (which involves the routine destruction of human embryos). It is fundamentally unjust that the state, in its promotion of its secular population control ideals, will be using the financial resources of the primarily religious community whose faith teaches clear opposition to those ideals. Here are the key aspects of the bill and their implications: This Bill is unnecessary. The matters it addresses are not all within the province of legislation, and the fact that much of the content of the Bill is being put forward at all should immediately ring alarm bells. In the Bill, the following are listed as elements of reproductive health care (a primary focus of the Bill): Maternal, infant and child health and nu trition; Promotion of breastfeeding; Family Planning information and services; Prevention of abortion and management of post‐abortion complications; Adolescent and youth health; Prevention and management of reproductive tract infections (RTIs), HIV/ AIDS and other sexually transmittable infections (STIs); Elimination of violence against women; Education and counseling on sexuality and sexual and reproductive health; Treatment of breast and reproductive tract cancers and other gynecological conditions; Male involvement and participation in reproductive health; Prevention and treatment of infertility and sexual dysfun ction; and Reproductive health education for the youth. With the exception of abortion and infertility treatment, none of the above requires specific new legislation. Each is already managed through existing health, education and other legislation, or through already accepted health promotion programs. This Bill, if passed, will exist alongside legislation that expressly makes abortion a c riminal offence. Since the Bill uses the language of „reproductive rights‟, which is used in many other contexts as inclusive of legal abortion, any setting in which the Bill could be even vaguely construed as conflicting with existing abortion legislation would necessitate intervention of the courts for an interpretation. This argument is strengthened because the Bill also mandates the use of various forms of contraception which have abortifacient effects. While at first blush appearing quite benign, including in the Bill the phrase “The State upholds and promotes ... respect for life in conformity with universally recognized international human rights”, could lead to the argument that since i nternational law has been interpreted as not universally recognizing the right to life of the unborn, this Bill can be similarly interpreted. Give n that there is a concerted effort to have a „reproductive‟ right (inclusive of a right to abortion) recognized at the international level, the stage would then be set for the Philippines to follow suit. The language of „reproductive rights‟ is becoming pervasive at national and international levels. Proponents of widespread access to abortion on demand seldom talk about abortion per se because it is confronting and likely to receive a negative response. Rather they talk about re productive rights, informed choice, sexual health and planned parenthood. By co‐opting these terms they act subversively to gradually soften resistance to their concepts and slowly work towards their goal. Communities who unwittingly accept such concepts, which are usually coupled to incremental legislative changes, eventually find themselves cornered into acquiescence on abortion. A „contraceptive‟ is abortifacient (literally „causing abortion‟) when one of its mode s of action is to precipitate the destruction of the developing embryo. For example, intrauterine de vices prevent the implantation of the embryo in the uterine lining and hence cause its destruction. The Bill will also exist alongside Section 12, Article II of the constitution, which reads: The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall protect the life of the mother and the life of the unborn from conception. 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. This Article is clearly designed to protect human life from conception, as well as to endorse the primacy of the family unit and the State‟s role in supporting the family. The Bill will weaken this Article by forcibly promoting abortifacient drugs and devices; using the language of reproductive rights to potentially subversively introduce a pro‐abortion agenda; emphasizing state run sex education (influenced by the population commission POPCOM) which will shift the emphasis from the family; allowing sterilisation without knowledge or consent of the spouse; and, ensuring minors can act in some circumstances without parental knowledge or consent. Furthermore, on some of these grounds, Section 3(1) Article XV of the Constitution will also be threatened. It reads thus: The State shall defend the right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood.
In particular, the religious convictions of the majority of Catholic citizens, protected by this Article, will be undermined by this Bill, which promotes and in some cases mandates some very anti ‐Catholic principles and practices. The Bill proposes “no bias for either modern or natural methods of family planning”. By doing so it equates meth ods of birth control that are abortifacient with those that are not, thereby implicitly contradicting the spirit of the constitution. The Bill makes it an offence punishable by 6 months imprisonment and/or a fine of P50,000 to “maliciously engage in disinformation about the intent or provisions of this Act”. Intent is very difficult to prove, and if some were to argue that a certain intent was apparent within the Bill, it would not be difficult for its proponents to argue simply deny it and seek prosecution. Someone saying some of the things in this commentary could therefore be prosecuted and potentially imprisoned for „maliciously engaging in disinformation about intent‟. Such restrictions of free speech are more reminiscent of totalitarian states. The Bill declares as essential medicines “hormonal contraceptives, intrauterine devices, Injectables and other allied reproductive health products and supplies”. Not only is the last phrase open to wide interpretation, but the idea that contraceptives and devices are essential medicines is fundamentally flawed. Contraceptives (some with abortifacient effects), do not treat any medical condition. To construe them as such is simply dishonest. The forces all health care providers, public and private, to provide reproductive health care services. In the list of prohibited activities, to which are attached significant penalties, only one category permits conscientious objection. There is no conscientious objection permitted for any of the other categories. Hence, no conscientious objection is permitted for failure to provide reproductive health care services as mandated under the Act. Furthermore, no conscientious objection is permitted for refusal to perform tubal ligation or vasectomy on the grounds of lack of spousal consent. Moreover, no conscientious objection is permitted for failure to provide information on “programs and services on reproductive health incl uding the right t o informed choice and access to a full range of legal, medically‐safe and effective family planning methods”. Even in the limited circumstances where conscientious objection is permitted, the conscientious objector could be prosecuted for not immediately referring the person to another health care provider in the same facility or nearby, thereby effectively denying the conscientious objection permitted. These measures mean that some health care professionals could be forced to act contrary to their consciences, either by direct participation in acts they deem immoral, or by indirect participation in referral on to those who will carry out the acts. Such a restriction of the freedom of conscience is contradictory to internationally agreed human rights, contrary to agreed ethical principles and contrary to any decent and fair treatment of health care professionals in a democratic society. The way that matters of conscience are dealt with in this Bill would be more at home in a totalitarian state. 3 Bill The Bill makes a recommendation for two children per family. The basis for making such a recommendation is population reduction, but in doing so the Bill begins to encroach upon the constitutional statement that “The State shall defend the right of spouses to found a family in accordance with their religious convictions and the demands of responsible parent hood.” While the Bill does not seek to enforce a two ‐child policy, the recommendation of a preferred number will provide license to agencies to apply pressure when and where they see fit. It may also set the stage for a later stronger application of the recommendation through legislative amendments. The Bill makes it a requirement that couples who wish to marry have to obtain a Certificate of Compliance to prove that they have received “adequate instructions and information on family planning, responsible parenthood, breastfeeding and infant nutrition.” While the obtaining of advice and information about breastfeeding and infant nutrition can only be a good thing, when it comes to advice and information about family planning and responsible parenthood, the nature of that advice and information is all important, especially given the widely differing perspectives that exist about such matters. To then mandate the provision of such information and advice and prohibit marriage without it, is an entirely unacceptable invasion and intrusion upon people‟s personal lives on the part of the state which smacks of totalitarianism. The Bill forces employers to provide reproductive health care services, supplies an d devices to all workers, whether there exists a collective bargaining agreement or not. It may also be the case that in structuring a collective bargaining agreement, employers could exert pressure t o adhere to a two‐ child policy because that would work to the employers’ advantage, as they would be able to retain female workers longer and without the various concessions that employers would typically make for female employees with regard to pregnancy, childbirth and child‐ rearing. On several occasions, the Bill makes it explicit that reproductive health care services will be targeted towards “the poor, needy and marginalized”. It is not clear that other health care services are targeted to these groups in this way. In fact, it is unlikely that these groups receive the special kind of attention that they do in this Bill. It therefore appears as if this Bill is attempting to specifically reduce reproduction amongst the poor and marginalised. If this can in fact be shown to be correct, depending upon the examination of other relevant legislation and practice, then it would constitute a eugenic intent. The promotion of health, and in particular reproductive health properly understood, is a good thing. However, the means by which such a goal is achieved are all important, and are in part dependent upon the process of policy implementation that would follow if the Bill were to pass. Unfortunately, the Bill explicitly and implicitly promotes reproductive health in a potentially damaging way for individuals and the community. By far the majority of its content is unnecessary as law, and some of it may conflict with the constitution and other legislation. It also undermines freedom of conscience, emphasizes the role of the State over that of parents with regard to their children‟s education, promotes an overbearing hea vy handedness with regard to disagreement, and potentially restricts freedom of speech.