Bernardo M. Villegas
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Rebalancing Strategy
published: Mar 31, 2017



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A Measure for Population Control

           The international press has taken note of the decision of the Philippine Supreme Court to declare the Responsible Parenthood and Reproductive Health Act of 2012 to be "not unconstitutional".  One of the most thorough analyses of the Supreme Court decision appeared in an article in a global media website entitled Mercatornet based in Australia.  The author of the article entitled "Philippines population control law gets judicial green light" is Oliver Tuazon who holds a Masters degree in microbiology and is currently enrolled in a law school. 

          In his analysis, Mr. Tuazon called a spade a spade.  He agreed with the Justices who acknowledged that the RH law, despite efforts to present it as a reproductive health law, is at bottom a population control measure.  As the Justices concluded, the control of population is the "corpus" of the law.  The family planning methods in the law, affirmed the Justices, are "clearly geared towards the prevention of pregnancy" and for that reason, the "manifest underling objective" of the law is "to reduce the number of births in the country."  Mr. Tuazon does not deny that the Justices themselves sounded alarmist when they cited the large jump of the Philippine population from barely 27 million in 1960 to 76 million in the year 2000 and 92 million a decade later.  They, however, recognized the fact that population control may not be beneficial for the Philippines in the long run, given the problem of ageing population in European and Asian countries which embarked on such a program generations ago.  These countries are now trying to encourage higher fertility and in spite of incentives for couples to have more children the fertility decline cannot be reversed.

          Mr. Tuazon sees coercion as the distinguishing feature of the RH Law.  The SC Justices saw through this and decided to strike down some of the coercive aspects.  A close reading of the Law reveals that it is a "mere compilation and enhancement of the existing contraceptive and reproductive health laws, but with coercive measures.  He rightly pointed out that the Population Act and the Contraceptive Act, both enacted during the incumbency of President Ferdinand Marcos, and the Magna Carta of Women enacted under President Gloria Macapagal Arroyo, all still effective, have been limited by two cornerstone principles:  the "principle of no-abortion" and the "principle of non-coercion."   The Court declared that any family planning program that will be adopted from hereon should maintain these two principles intact.

          The Justices, with a vast majority, saw through the protestations of the pro-RH Law advocates that their main concern was to reduce maternal mortality and the number of illegal abortions. As Mr. Tuazon reports, the Court agreed with the contention of the petitioners that the "central idea" of the RH Law is contraception, rather than health:  "Indeed, remove the provisions that refer to contraception or are related to it and the RH Law loses its very foundation."  In fact, "the other positive provisions such as skilled birth attendance, maternal care including pre- and post-natal services prevention and management of reproductive tract infections including HIV/AIDS are already provided for in the Magna Carta for Women."    While the petitioners did not question the legality of the contraceptives made available under existing laws, they did question the safety of the drugs and devices made widely available by the new law.

          Concerning the safety of contraceptive products, the Court affirmed that the Contraceptive Act already contains "adequate safeguards to ensure that only contraceptives that are safe are made available to the public."  The said Act has two requisites before any contraceptive drug or device could be sold, dispensed or distributed and such are still in effect according to the Court.  The sale, dispensation and distribution shall be done by a "duly licensed drug store or pharmaceutical company" and "with the prescription of a qualified medical practitioner."  The Court also stressed the obvious:  it is the Philippines Food and Drug Administration, not Congress, that has the expertise to determine the safety of a contraceptive.  This equally applies to the determination of the mode of action of the contraceptive and whether it is abortifacient or not.

          Finally, the Justices underlined the importance of protecting public health by all means.  To quote Justice De Castro's separate opinion:  "a heavy responsibility and burden are assumed by the government in supplying contraceptive drugs and devices, for it may be held accountable for any injury, illness or loss of life resulting from or incidental to their use."  Hence, she also declared that the law "cannot foreclose or predict the outcome" of scientific studies on the safety of these products in the future, paving the way for possible action against purchase and distribution by the government of products shown to be harmful.  From all these considerations, therefore, when all is said and done, the real innovation of the RH Law to existing legislation is the introduction of a "birth control" or population limitation mentality, which as the majority of the Justices opined, could be counterproductive in the long run.  For comments, my email address is bernardo.villegas@uap.asia