ASSOCIATE Justice Roberto Abad, a former UST law dean, wrote the strongest words against the Reproductive Health Law as he joined the majority of the Supreme Court in striking down key provisions and upholding the constitutional principle of protecting life from conception.

“Remarkably, Republic Act 10354 or the Responsible Parenthood and Reproductive Health Act of 2012, the RH Law for short, repeatedly extols the principles of gender equality, sustainable human development, health, education, information, the sanctity of human life and the family, improved quality of life, freedom of religious convictions, ethics, and cultural beliefs, freedom from poverty, and other ennobled principles. But these are already part of existing laws and no one can object to them,” Abad said in a 22-page concurring opinion.

“Stripped of euphemisms and the echoes of these principles, what the law really wants is to limit population growth with an eye to ‘sound replacement rate’ through massive birth control, sex education, and neutralization of opposing views,” he added.

The Supreme Court was of the “strong view” that life begins at the meeting of the sperm and the egg in the mother’s womb or “fertilization,” and said that any drug or device that prevents the fertilized ovum from being implanted into the uterine wall is prohibited by the RH Law itself based on the 1987 Constitution.

While the RH Law defined an abortifacient as “any drug or device that induces abortion or the destruction of a fetus inside the mother’s womb or the prevention of the fertilized ovum to reach and be implanted in the mother’s womb upon determination of the Food and Drug Authority,” drafters of the implementing rules and regulations (IRR) overstepped their bounds by changing the definition of an abortifacient to any drug or device that “primarily” induces abortion. The high tribunal said that to uphold the “principle of no abortion” in the Constitution, the word “primarily” should be stricken out, as there are contraceptives that can act as abortifacients or prevent implantation as a secondary or fail-safe mechanism.

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Abad rejected the opinions of the World Health Organization and members of the Universal Health Care (UHC) Study Group on whom Congress relied in crafting the RH Law, for concluding that artificial contraceptives are safe and non-abortifacient.

He noted that hormonal contraceptives perform three functions—first, suppressing ovulation; second, preventing the fertilization of an ovum by a sperm cell, and third, inhibiting implantation of a fertilized ovum in the uterine lining. Abad cited The Guttmacher Institute and the American College of Obstetricians and Gynecologists as sources.

“When the first two functions fail and an ovum is nonetheless fertilized (a phenomenon called ‘breakthrough ovulation’), the contraceptives have the potential for functioning as abortifacient and terminating the fertilized ovum by inhibiting implantation. This is abortion that the Constitution prohibits,” said Abad in his concurring opinion.

“The UHC Study Group seems to live in another planet. Its understanding of when the life of the unborn child begins essentially differs from what the Constitution states, i.e., from the time of conception, something that the RH law itself concedes,” he said.

Echoing the majority ruling, Abad said the Food and Drug Administration (FDA) should have the authority to approve the distribution of hormonal contraceptives and intrauterine devices, not Congress. “[S]ection 9 should be construed as ordaining their inclusion in the National Drug Formulary only after they have been tested, evaluated, and approved by the FDA. Only the FDA is competent to determine whether a particular hormonal contraceptive or intrauterine device is safe and non-abortifacient,” he said.

The Court upheld Section 9 in so far as it allows the distribution of abortifacients for the purpose of saving a woman’s life, but not to induce abortion.

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Abad also said healthcare providers should not be punished for going against the RH Law. “Most competent doctors read the latest in scientific and medical journals and reports. If these convince a doctor that oral pills and copper IUDs are not safe or work as abortifacient, he would be unable to tell his patients these until the law is repealed. Otherwise, he would be giving them ‘incorrect’ information that would send him to jail,” he said.

Two other associate justices—Arturo Brion and Mariano del Castillo—also shared their views in separate concurring opinions.

Emphasizing the primacy of the right to life, Brion said “[i]t would indeed be very ironic if the threat would come from our own government via the abortifacients it hopes to distribute under the RH Law’s IRR.”

For Del Castillo, any contraceptive that cannot provide a 100-percent guarantee that it will prevent fertilization and has a fail-safe mechanism that prevents implantation of the fertilized ovum (or harming/destroying the fertilized ovum in any way) violates the constitutional right to life.

“We cannot play the game of probabilities when life is at stake. The destruction or loss of life is permanent and irrevocable. Our constitutional mandate is to protect the life of the unborn from conception/fertilization. We cannot protect this life 90 percent of the time and allow its destruction 10 percent of the time. We either protect this life or we do not. There is nothing in between,” said Del Castillo.


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