The Making of an Unjust Law

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By Francisco “Kit” Tatad

1. Six bills in the House of Representatives—HB Nos. 96, 101, 513, 1160, 1520 & 3387—half of them titled, An Act Providing For A National Policy on Reproductive Health, Responsible Parenthood And Population And Development and For Other Purposes, have been consolidated by the House Committee on Population and Family Relations into a substitute bill titled, An Act Providing For A Comprehensive Policy On Responsible Parenthood, Reproductive Health, And Population And Development, And For Other Purposes. The bill will shortly be reported out by the Committee on Second Reading for floor debates.

2. Is it a different bill? Less objectionable? Does it stand on firmer constitutional and legal ground?

No, it is the same dog with a different collar. Although dressed a little differently, it is just as constitutionally infirm and dangerous as the original.

3. Let me show it.

a) Sec. 2 — Declaration of Policy provides: “The State recognizes and guarantees the universal basic human right to reproductive health by all
persons, particularly of parents, couples and women, consistent with
their religious convictions, cultural beliefs and the demands of
responsible parenthood. Toward this end, there shall be no
discrimination against any person on grounds such as sex, age, religion,
sexual orientation, disabilities, political affiliation and ethnicity.”

This is misleading, to say the least. For while there ought to be a basic human right to reproductive health, properly understood, there cannot be a universal right to reproductive health, given the way “reproductive health”is defined in the bill, and the wide public official articulation by some international actors (pace US Secretary of State Hillary Clinton, and WHO) to the effect that “reproductive health includes access to abortion.”

And while the Declaration speaks of the “human right to reproductive health by all persons, consistent with their religious convictions, cultural beliefs and the demands of responsible parenthood,” the bill requires the members of the most numerous Church -–the Catholics– who reject contraception and sterilization as intrinsically evil, to support with their tax money the promotion of the same intrinsic evil. There can be no more patent and violent act of discrimination.

b) Sec. 3 — “Guiding Principles”—provides: “(a) Freedom of choice, which is central to the exercise of the right, must be fully guaranteed by the State.” There is nothing wrong with that statement, except that putting it there is superfluous, since no law prohibits anyone from exercising such “freedom;” the Department of Health (DOH) and the Population Commission (POPCOM) have been running a reproductive health program since the early 70s, in violation of the prolife, post-Marcos Constitution since President Corazon Aquino promulgated it in 1987; women and men are freely contracepting and getting sterilized; and the contraceptive prevalence rate is already 51 percent and counting.

c) There is an unremitting effort to make it appear that the main purpose and thrust of the bill is to guarantee everyone’s “human right of reproductive health.” That is how the public debate on the RH bill has been framed from the very beginning. But it is deceptive and misleading. That “right” is unthreatened and undisturbed; everyone is “free” to contracept or get sterilized.


Thus, Section 18 provides: “No marriage license shall be issued by the Local Civil Registrar unless the applicants present a Certificate of Compliance issued for free by the Local Family Planning Office certifying that they had duly received adequate instructions and information on family planning, responsible parenthood, breastfeeding and infant nutrition.”

In paragraph three, the Declaration of Policy “guarantees universal access to medically-safe, legal, affordable, effective and quality reproductive health care services, methods, devices, supplies and relevant information and education.”

Sec. 10 provides: “Products and supplies for modern family planning methods shall be part of the National Drug Formulary and the same shall be included in the regular purchase of essential medicines and supplies of all national and local hospitals and other government health units.”

Sec. 11 provides: “The DOH shall spearhead the efficient procurement, distribution to Local Government Units (LGUs) and usage-monitoring of family planning supplies for the entire country. The DOH shall coordinate with all appropriate LGUs to plan and implement this procurement and distribution program…”

d) The bill requires the State to “promote, without bias, all effective
natural and modern methods of family planning that are medically safe
and legal.” But it fails to appreciate the fact that natural family planning is centered on the exercise of periodic continence by couples during the woman’s fertile period and does not at all involve contraception. And while the bill contains ample provisions for the procurement, acquisition and distribution of facilities and supplies for artificial methods of contraception and sterilization, it says nothing about the development, procurement, acquisition and deployment of skills for natural family planning. That renders highly suspect, if not downright fraudulent, the phrase “without bias” in the above-quoted provision. The bias is clear and unmistakable in favor of artificial methods of contraception and sterilization.

e) Sec. 3 (k) provides: “There shall be no population targets and the mitigation of the population growth rate is incidental to the promotion of reproductive health and sustainable development.”

This is another suspicious, if not downright fraudulent, statement. What population growth rate is there to mitigate? The annual population growth rate is now 1.9 percent, and declining . The total population stands at 95 million or so, not on account of a high birth rate but simply because people have stopped dying like flies. The country’s population density is 313 per square km, but urbanization has created super-congested cities like Manila with a population density of more than 43,000 per square km. For all this, the country has a younger and more dynamic workforce than that of at least 107 other countries. The median age is 22.70 years while that of most of the developed countries is in the 40’s, with Monaco on top at 45.50 years, followed by Japan and Germany at 43.50 and 43 years respectively. The real global problem is the irreversible ageing and shrinking of the population that began in Europe and is spreading to the rest of the rich countries. In the industrial West, America alone has been able to keep a healthy population growth, despite widespread abortion and contraceptives. From 1900 to 2000, the US posted a population growth rate of 270 percent as against Russia’s 4 percent. But largely because of foreign migration rather than a robust birth rate.

f) Sec. 20 provides: “The State shall assist couples, parents and individuals to achieve their desired family size within the context of responsible parenthood for sustainable development and encourage them to have two children as the ideal family size. Attaining the ideal family size is neither mandatory nor compulsory. No punitive action shall be imposed on parents having more than two children.”

What authority or competence does Congress or the State have to decide “the ideal family size?” This is a throwback to the original prescription contained in the 1974 Kissinger Report, also known as National Study Memorandum 200, intended to preserve America’s overall strategic advantage over the rest of the world. This matter should be left solely in the hands of the couple without the intervention of the State. A mere suggestion of it in any law is coercion enough, even in its subtlest form.

g) Among the proposed justifications for the bill, Sec. 3 (m) provides: “The limited resources of the country cannot be suffered to be spread so thinly to service a burgeoning multitude that makes the allocations grossly inadequate and effectively meaningless.”

Rarely, if ever, do we encounter an argumentative and polemical construction of this nature in any proposed legislation. It gives one the impression that even the crafting of laws has not been spared from the language of ideological propaganda, and that the Philippines is now a super welfare state that must provide for every want of its most assertive citizens, even though it is unable to provide for the real needs of the poor. At the same time it is a shameful admission that we have not yet heard about the human mind being the ultimate creator of wealth, and would rather have the State use its naked power to reduce the population than use our brains to produce more food, shelter, clothing, education, health care, etc. for all.

There are many ways of addressing this resource issue. The RH bill is not one of them. If only official corruption in all branches and layers of government were at least halved, all crooks jailed and their ill-gotten wealth recovered and used wisely by the State; if only the irresponsible automatic servicing of the country’s long overpaid loans were prudently reexamined and rationalized, and the priorities of the physical economy given the proper attention they deserve, there would be more than enough money for all the necessary social services, and we wont have to beg for doleouts from donor governments and institutions whose primary interest is to paganize our Christian civilization and promote the anti-culture of death.

4. Why is the RH bill constitutionally infirm and dangerous?

a) The bill seeks to legislate a moral evil into the lives of Filipinos. Contraception and sterilization are, at the very least, offenses against chastity, which is a universal human virtue, not just a virtue for Catholics. Contraception and sterilization not only promote promiscuity; they also render continence superfluous and put the dignity of the human person, the dignity of the transmission of human life, and the human capacity to love at risk (Rhonheimer). The Nuremberg military tribunal of 1945-46 condemned the contraception, sterilization and abortion imposed by the Nazis on conquered populations as a crime against humanity. The Convention on the Prevention and Punishment of Genocide of 1948 and the Rome Statute of the International Criminal Court of 1998 both condemn as “genocide” certain “measures to prevent births within a group.” So it is one thing for private individuals today to contracept or get themselves sterilized, but quite another for the non-totalitarian state to prescribe or sponsor contraception or sterilization for any part of the citizenry. That would bring us closer to Nazi Germany.

b) To propose that we take a morally neutral view on contraception and sterilization is to propose that we “remove an entire area of human behavior from regulation of the moral law” (Rhonheimer), which can only have the most disastrous consequences on the morality of human acts. Granted, arguendo, that one could momentarily avoid looking at contraception and sterilization as intrinsically evil, does the State have the right or the duty to organize the private lives of its citizens and prescribe and promote contraception and sterilization as a necessary component of married life? Nothing gives the State that right or that duty; it cannot do so without turning into a totalitarian state. Even for the RH proponents that is too high a price to pay.

c) The RH bill addresses itself to every Filipino not merely as a citizen but first and above all as a human person in all his or her dignity. We must respond to it in the fullness of our being by declaring that the fundamental right and duty of married couples to beget children is not subject to the legislative jurisdiction of Congress or the police power of the State.

d) Fr. Joaquin Bernas, S.J., who had a hand in writing the present Constitution, predicts the RH bill would become law, and that it would be “the product of the exercise of police power.” We should always be grateful for the little droppings we get from our constitutional experts, but it seems to me that if the State cannot invoke its police power to order the jobless and the homeless to go back to the provinces in order to decongest our Metro Manila cities that are now among the world’s 50 most congested cities, it cannot invoke “police power” to tell married couples how to make love inside their bedroom so as not to add one more child to the 95 million Filipinos maldistributed around the country and abroad. My guess is that even our Justices of the Supreme Court see this very clearly.

e) The real constitutional issue is this. Section 12, Article II of the Constitution provides: “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 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.”

Some people have succeeded in confusing themselves and others too by raising the issue, when does conception take place? Upon fertilization or upon implantation? That is an important issue, especially when you are discussing abortion. But for now that is a separate issue altogether. The only relevant question is this: “If the duty of the State is to protect the life of the unborn from conception, does it have the right or the duty to run or fund a program whose purpose is to prevent even just one solitary woman from conceiving a child?”

The first principle of speculative reason is instructive: a thing cannot be and not be at the same time. The State cannot be a provider of contraceptives or sterilization agents for anyone while being the protector of the life of the unborn from conception. The RH bill therefore is null and void ab initio, insofar as this issue is concerned.

Likewise, because parents are the natural and primary educators of their children, the State cannot impose a mandatory sex education program on schoolchildren from Grade Five up to Fourth Year High School without parental consent. The State’s duty is to help and support the parents in the exercise of their right and in the discharge of their duty, but never to replace them or to preempt them.

The word from Congress is that the pro-RH bloc is determined to pass the bill into law, just because “they have the numbers.” They are apparently heartened by Fr. Bernas’s confident forecast on how the Supreme Court would respond to any petition questioning its constitutionality. I do not share that sentiment. I am convinced the measure is oppressive beyond being merely unconstitutional, insofar as the points I have raised here are concerned. I am excluding the ornamental provisions on maternal death review, midwives for skilled attendance, emergency obstetric care, mobile health care service (provided they are not used to deliver contraceptives, sterilization agents and abortifacients), all of which can be implemented as part of the regular DOH program even without any legislation.

Were all the members of Congress to vote for the bill in its present form, that vote would not produce a law that could or should bind in conscience. It would be an unjust law, which the people would have a right, if not a duty, to resist. “For the ultimate authority of the law does not derive from its being an expression of the will of party or people. Its binding force does not come from popular consent (nor is it removed by popular dissent). It comes from justice. A law does not have more authority because it is approved by many, or less because it is enacted by a few, or even by only one. A just measure ought to be obeyed—i.e. it carries authority; an unjust measure ought to be resisted —it lacks authority—even if it is backed by a landslide majority. A just law binds as much in a democracy as in a totalitarian state; an unjust law binds in neither” (Cormac Burke, Authority and Freedom in the Church).

As Pope Benedict XVI sees it, “people will revolt against the law whenever it is perceived no longer as the expression of a justice that is at the service of all, but rather as a product of despotism, of an arrogance that is clothed in the garments of law by those who have the power to do so.” For there are things that can never be legalized, the Pope writes, some things that always remain wrong, just as there are some things that absolutely always remain legally binding, things that precede every majority decision, things that majority decisions must respect (Joseph Ratzinger, Values In A Time Of Upheaval).

It is time for every worthy member of Congress to reflect a little more deeply on the true meaning of human life, human dignity, human love, and the law, as an ordinance of reason for the common good promulgated by him who has the care of the community. And it is time for the President of the Philippines to convey to Congress and to the nation that he is prepared to defend our prolife Constitution, which is his mother’s only enduring legacy to the nation, even at the risk of denying the powerful multilateral lobby seeking the moral and intellectual recolonization of the Philippines.

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