The way the questioning went at the 5-hour oral arguments yesterday, the landmark reproductive health law is in for a rough time at the Supreme Court. The liberal-conservative divide in Philippine society appears to be more pronounced in the 15-member unelected body, which appears to have a preponderance of conservatives.  

Here’s my reading: 6 justices are for the RH law,  4 to 5 are staunchly against it, and 3 are difficult to read—they showed some openness toward the law—and may end up being the swing votes. (One justice, Arturo Brion, was absent.)

Yesterday was only the first round of oral arguments and one more session is scheduled on July 23. If all of the justices ask questions again, some repetitive and tedious, then there could be a third round.

So where are we now?  

After 14 years of crawling its way through Congress, reaching its most sharp and acrimonious debates and going through its most intense public scrutiny in the last 3 years, the hard-fought RH law is still un-implementable, stopped in its tracks by the highest court of the land. The law has been up in the air for 4 months now.

At least 2 justices reminded the anti-RH petitioners that the Court is not going to rush to judgment in this case and thwart the policy direction set by the executive department and Congress. “We’re not a political organ that vetoes another political organ,” Justice Marvic Leonen, the youngest in the Court, said in his crisp manner. “The 15 petitioners are making us a super department…Government has [already] made a choice.”  

Chief Justice Maria Lourdes Sereno shared this sentiment. “We’re 15 unelected…. The Constitution has identified the bounds of our powers. We won’t dare go beyond that,” she said, speaking like a teacher lecturing a class. “Are we in a position to supplant a decision of Congress, to choose a policy direction?” Sereno asked rhetorically.

It felt like these moments of public self-reflection were not only meant for the anti-RH partisans but for the other justices as well. They were a refreshing, if not humbling, admission of the Court’s place as a third co-equal branch of government, despite its being imbued with the power of judicial review. 

The 1987 Constitution has spelled out this power and it has led, a few times, to an overreach by the Court. Remember how the Corona Court stopped Congress from stopping the impeachment proceedings against then Ombudsman Merceditas Gutierrez? (Congress, as we know, is the sole body with the power to impeach public officials.)

Noche’s argument crumbles

Yesterday’s oral arguments focused on an age-old issue that has been the subject of debate in medical and scientific circles for many years: when does life begin? Maria Concepcion Noche, a hefty woman with a clear voice and emphatic tone, was the first and only one to argue for the anti-RH petitioners.

She was like a drone in her fixation with one target: to get her message across that life begins at conception and therefore “hormonal contraceptives,” which the RH law includes, are all abortifacients. Therefore, the RH law violates the right to life which the Constitution protects.   

Noche was unrelenting as she spoke on behalf of the unborn, her constituency, and their right to life which was more vital than the mother’s right to life. 

This line of argument caused discomfort among some of the justices, especially Antonio Carpio, who immediately gave the anti-RH advocates a reality check. “We’re not doctors,” he said matter-of-factly. “How can we decide on a medical issue?”  

Carpio pointed out that both sides of the debate—those who claim that life begins at “implantation,” meaning when the fertilized ovum reaches the uterus and those who say that life begins at conception, as the anti-RH bloc believes—have authorities to support them.   

On the 4th hour of the oral arguments, Carpio went for the kill. 

     Carpio: Does the RH law define when conception occurs?

     Noche:  No.

     Carpio: Does the RH law provide a safeguard that a fertilized ovum can reach the   

                          womb? 

     Noche: Textually, yes.

     Carpio: The law doesn’t say implantation.

      Noche: Textually, yes. But Cong. [Edcel] Lagman said…

      Carpio: I look at the law. What Lagman said is not in the law. So there’s no  

       conflict between the RH law and your position. The law protects the travel of the  

       fertilized ovum to the uterus. The intention of the law is the same as yours. 

      Noche: Yes, as written in the law. Except that there are certain ambiguities.

Noche’s argument fell apart. Carpio then asked her to point out the “ambiguities.” She then started to review these “ambiguities” in between long pauses after which Carpio asked her to submit a memorandum detailing these.

Saving Noche

Roberto Abad and Jose Perez tried to rescue Noche. They both suggested alternative ways of looking at the RH law.

Perez advised Noche: “The fact that you are objecting to is the use of public funds for contraceptives. Your strongest point is to question the law as a population-control measure, not the implantation…”

For Abad, the RH law should be regarded as an “exercise of police power” because the state is using legislation to “tamper with human life.” This, he implied, should be the line of questioning of the anti-RH advocates.

Apart from Abad and Perez, Jose Mendoza, the ponente, Teresita De Castro, and Lucas Bersamin, to a certain extent, came out against the RH law.

Those who were clearly for it were the 5 who voted against the status quo ante order: Sereno, Carpio, Leonen, Mariano del Castillo and Estela Perlas-Bernabe. Yesterday, Bienvenido Reyes joined the 5.

The swing votes could be: Presbitero Velasco Jr, who was seeking a middle ground, Martin Villarama, who was cryptic, and Diosdado Peralta, who seemed open to the law. – Rappler.com