Buhay at Diwa: RH Bill: Fr. Bernas Articles

[Note: All these articles are written by Father Joaquin Bernas, SJ which I arranged in chronological order. Please refer to the original articles 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

A New Chief Justice; An Amended HB 4244

Fr. Joaquin Bernas, SJ

20 August 2012

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 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.

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

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

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.

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

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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

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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

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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

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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

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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

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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.

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

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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

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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

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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

Wednesday, August 8, 2012

RH Bill: Fr. Bernas Articles

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