The opponents of the reproductive health (RH) law met their strongest challengers yesterday, the third round of the oral argument, in the persons of Solicitor General Francis Jardeleza and Justice Antonio Carpio.  

Jardeleza emerged from his quiet demeanor and argued persuasively, proving to be a tough match to the torchbearer of the anti-RH justices, Roberto Abad. The solicitor general raised 2 compelling arguments that brought back the debate to core issues on the constitutionality of the landmark legislation. 

First, Jardeleza said, the question is not when life begins, as the petitioners frame it, but whether or not Congress, in passing the RH law, “acted in grave abuse of discretion.” 

“It’s not a matter of Congress being correct or not,” he argued, “but whether the members of this elected body made this judgment [in passing the law] in good faith.” 

Several times, throughout the 4 hours of interpellation, Jardeleza always returned to this point: It doesn’t matter what the justices believe—whether some contraceptives are abortifacients—but that a co-equal body made a “wisdom call” which was the product of “consensus” that is “embraced by the political process.” 

The executive and legislative bodies have made a policy decision, he continued, and he asked the Court to “pay heed to the contemporary interpretation by the people of their Constitution. Upholding it [Constitution] is not on the courts alone but on the legislature and the executive.” 

In narrating the story of the RH law, Jardeleza referred to records of Congress and provided much-needed context in the debate. In his lucid opening statement, he informed the Court that Congress was divided on the age-old question of when life begins thus they decided not to answer it. Instead, they put a safeguard in clear language: contraceptives must not induce abortion. 

Congress then delegated the task of determining the safety of contraceptives to the Food and Drug Administration. At the moment, there are 59 contraceptives and 7 types of IUD available in the market. 

Jardeleza also refreshed the memory of the Court. He cited deliberations of the Constitutional Commission in 1986 when, Bernardo Villegas, a member of the Opus Dei, argued that the issue of what are abortifacients is a “question of fact” that should be left to Congress and the courts to decide. “And that’s exactly what Congress did, they debated it and received evidence,” the solicitor general said.

“The Court should be cautious not to rewrite legislation,” said Jardeleza, begging the justices to “respect the outcome of a majoritarian process.” 

Second, and this is a paraphrase, there is no basis for filing a case. 

Jardeleza pointed out that no person has been prosecuted under the RH law and that no FDA certificate on any of the contraceptives is being questioned in the Court. 

“You will have second pass [on this law],” he said, when someone, for example, questions the safety of a contraceptive before the lower court and which will most likely reach the highest court in the land.

‘Facial attack’

Carpio, for his part, brought light rather than heat to the interpellation (although he introduced the subject of the heat method of contraception), after Abad monopolized about an hour quarreling with the solicitor general, insisting that hormonal contraceptives induce abortion.  

Carpio pulled back the discussion to the core issues, providing a startling moment of clarity. He called the anti-RH petition a “facial attack” since it was questioning the law simply “on its face.” After all, the law remains suspended, courtesy of the status quo ante order of the Court. 

Addressing the solicitor general, Carpio said: “We presume the law to be constitutional. The petitioners should point to specific provisions being violated…It can’t be hypothetical.”

Facial attacks, he continued, have a very narrow window. The petitioners have to “prove that the law will be unconstitutional under all, or nearly all circumstances.”

Since the RH law provides a menu of contraceptive devices, he continued, it is up to the petitioners to prove that all of these prevent the fertilization of the ovum. 

It was in this context that Carpio talked about a range of options like condom, vasectomy, basal gel and the heat method—“you heat the balls” to a certain temperature for the sperms to die—which are not abortifacients.

“The law can be constitutional in many instances,” he said. So here’s the big job for the anti-RH group: to prove the “possibility of abortion under all sets of facts.” And this requires a “high bar” for the petitioners. 

In the past 2 oral arguments, however, they did not step up to this “high bar.” Carpio, in these sessions, already raised the issue that the anti-RH bloc should first have these contraceptives tested by the FDA and then question the results before the courts.

‘Compelling state interest’

The other weighty argument put forth by Carpio was the “compelling state interest” in the RH law. He cited the commitment of the Philippines to the Millenium Development Goals (MDG), specifically meeting the targets to reduce maternal and infant mortality. Almost 200 countries, including the Philippines, have adopted the MDG and have pursued—or continue to pursue—laws and programs to reduce mortality rates.

“Compelling state interest in attaining these goals should prevail over religious belief,” he stressed.

It would be hard for the Court to dismiss these arguments—unless, like Abad, they want to overreach and wade into the murky waters of judicial legislation. – Rappler.com