In the final round of the oral arguments on the RH law, one Supreme Court justice made a surprising turnaround while the leading anti-RH law justices continued, predictably, to find unconstitutional holes in the hard-fought landmark legislation.

The open session on August 28 was the fifth in a series, chalking a record for the RH law case as having the longest oral arguments, overtaking the mining act case with 4 sessions devoted to oral arguments.  This reflects the continuing conservative-liberal divide in Philippine society, similar to what we saw in the legislature.  

But the big question now is: will the Supreme Court uphold the RH law? 

The public will know the answer next year. By the end of October or 60 days after the closing of the oral arguments, both parties will submit their written memoranda to the Court, stitching together all their arguments to make a final pitch. Normally, the Court would have asked for 30 days but because of the range of issues covered, it gave both sides a lot of time.  

With its load of cases, the Court usually plods through years to arrive at decisions even if the Constitution prescribes a 2-year time limit. But the justices are expected to give this case priority.  

Meantime, will the most vociferous anti-RH justice, Roberto Abad, still take part in the vote? He retires in May 2014.   

‘Is there a need for this law?’

The one question that stood out in the course of the four-and-a-half hour open session came from Justice Presbitero Velasco Jr. “Is there a need for this law?” he asked, saying that this question has been “nagging” him. 

In earlier oral arguments, Velasco used to find a middle ground. His questions tended to show that he was open to the RH law, minus some provisions which he found were already covered by other laws and those which the anti-RH bloc questioned.

He changed course, arguing that “some of the duties of the Department of Health, under the RH law, are encompassed in the Administrative Code. The DOH can already do the things that are in the RH law.” 

Velasco continued: “The RH law may be redundant.” The DOH, he said, has a policy on contraceptives which came before the RH law.

Florin Hilbay from the Office of the Solicitor General (OSG), who argued for the government, said that the RH law brings the weight of Congress. “This ties the legislators to a social-welfare program,” he explained, institutionalizing it as a partnership between the executive and legislative departments rather than making it dependent on who the president is.

OSG strategy

Throughout the oral arguments, Hilbay tried to steer the discussion to constitutional grounds, parrying questions, giving indirect answers to what he considered were speculative issues or those not covered by the constitutional challenges such as free speech and right to religion. The anti-RH group has said that the law violates these freedoms since it is coercive, citing certain sanctions.

At times, Hilbay did not let some of the justices finish their questions. In the process, he earned the ire of Justice Teresita de Castro who, in a rare moment, raised her voice, her face flushed with anger, and admonished the young lawyer, “You are misleading!”

De Castro, who opposes the RH law, later cooled down and asked the stenographer to change “misleading” to “digressing.”

De Castro said that the law penalizes dissent but is vague on what constitutes an offense. She asked Hilbay: “Does the law define the elements of an offense? Is the language of the law sufficient?”

To which Hilbay answered that the law does not have a free-speech component and cannot therefore be subjected to a “facial challenge,” sticking to his strategy to stay the constitutional course but appearing evasive. Earlier, he made the point that a “facial challenge,” meaning attacking a law on its text alone, without an actual case, can only happen if it violates free speech. 

De Castro pursued this further: “Do you want a doctor who, from his experience and using professional judgment, knows that a pill or contraceptive is harmful to still refer the patient to another doctor who will prescribe the same contraceptive?”

Hilbay refused to be drawn into this scenario and answered that “the ultimate test is an actual case.” He did the same to Abad when he dismissed the justice’s oft-repeated question on whether the law encouraged sex even among adolescents by requiring sex education in classrooms. “That’s not relevant to a facial challenge,” Hilbay said.

For his part, Jose Perez, another anti-RH justice, couldn’t help but make a short and impassioned spiel on what he thought was the real, dark intention of the law: “Why is there an avoidance of [intent] to control population? Let us not hide behind the lens of reproductive health and welfare of women just to make the law acceptable. Yes, there’s a need to reduce the population of the poor. It’s a policy of the state.” He may have realized that he gave himself away completely and added, “I’m not expressing any bias here.”

At this stage, the future of a law that took 14 years to pass and that was intensely scrutinized under the bright glare of the media, lies with the unelected justices. – Rappler.com