[DASH of SAS] That Supreme Court TRO
The Supreme Court made it to the list of organizations President Rodrigo Duterte called out during his State of the Nation Address (SONA) last Monday, July 24.
The President cited the Supreme Court issuance of a temporary restraining order (TRO) as hobbling the full implementation of the Reproductive Health Law (RH Law), saying that TROs have become the bane of government projects.
“But I cite, for example, the Supreme Court TRO that prevents the Department of Health from distributing subdermal implants, which caused a wastage of P350-million worth of taxpayers’ money. I also note that since its issuance two years ago, this TRO has impaired the government’s ability to fully implement responsible planning --- family planning methods in the RH Law. It is time that we put an end to the practice of some parties of resorting to technicalities in our laws to prevent the government from fulfilling its mandate,” said Duterte.
Directing his gaze at Supreme Court Chief Justice Maria Lourdes Sereno, the President was deferential and conciliatory when he said, “But itong (the) Congress passed the Reproductive Health law. It was already a law na dapat implement (that should be implemented), because we are already going into family planning.”
Supreme Court responds
On Thursday, July 27, the Supreme Court issued a statement in response to the President.
“The Supreme Court has never issued a Temporary Restraining Order (TRO) against the implementation of the RH Law.”
The statement went on to explain that the TRO was issued on two brands of contraceptive implants that are regulated under the RH Law, Implanon and Implanon NXT.
“The TRO is limited to only those two implants,” it read.
So was there or was there a TRO on the RH Law or not? How did we get to this point where birth control pills and other hormonal contraceptives are vanishing from our drugstore shelves and public health clinics?
“It’s true the Supreme Court did not issue a TRO against the implementation of the RH Law. It’s not true that the TRO (they did issue) is limited to only two implants,” said former DOH Secretary and chairperson of RH National Implementation Team Esperanza Cabral.
The Supreme Court did not issue a TRO on the implementation of the RH Law per se but at the heart of this law is the promise to provide equal access to a wide range of family planning products for all Filipinos. In short, universal access to contraceptives.
Without contraceptives, the RH Law is like that condom that has been in your wallet for so long without being used that it’s probably expired. It’s great to show your friends, but it is of no use.
In June 2015, the Supreme Court issued a decision in relation to the petition of the ALLiance for the Family Foundation Philippines (ALFI) who alleged that implants were abortifacient in nature and that the FDA registered and re-certified other contraceptives without hearing or consultation.
The decision directly mentions two hormonal implant brands: Implanon and Implanon XT, but it is the next line that is the bone of contention:
to REQUIRE respondents to file COMMENT on the petition, not a motion to dismiss, within ten (10) days from notice, and to ISSUE, effective immediately and continuing until further orders from this Court a TEMPORARY RESTRAINING ORDER enjoining the respondents, their representatives, agents or other persons acting on their behalf from:  granting any and all pending applications for registration and/or recertification for reproductive products and supplies including contraceptive drugs and devices; and  procuring, selling, distributing, dispensing or administering, advertising and promoting the hormonal contraceptive "Implanon" and "Implanon NXT." Leonoen, J., on official leave; Jardeleza, J., designated acting member per S.O. No. 2056
ALFI announced the SC decision to their members, claiming it as victory on their part.
The Supreme Court has now spoken. It has issued a TRO addressed to DOH and FDA and their agents and representatives and has ordered them to comment on our Petition. Specifically, they have been restrained from:
 granting any and all pending applications for registration and/or recertification for reproductive products and supplies including contraceptive drugs and devices; and  procuring, selling, distributing, dispensing or administering, advertising and promoting the hormonal contraceptive ”Implanon” and “Implanon NXT.” (Please see attached SC Resolution).
[Read full ALFI announcement here: http://alfi.org.ph/2015/06/sc-tro-rh-implementation/ ]
The 'side effects' of the TRO
Cabral cites this same provision and explained, “The consequence is previously marketed contraceptives could not be marketed anymore after their certificates of registration expire until they go through the process of ‘proving’ that they are not abortifacient.”
This was corroborated by the other government officials like Juan Antonio Perez, executive director of Commission on Population (POPCOM).
“The Supreme Court was mistaken in saying that only implants are affected by their decision,” said Perez. “The effect (of their decisions) was a need to re-certify all contraceptive listed products -- including IMPLANON.”
POPCOM has received confirmation from the DOH that as of last week, there is zero stock of the progestin only pill, a hormonal contraceptive made specifically for breastfeeding mothers.
POPCOM estimates that some 200,000 women using implants and now some 500,000 breastfeeding mothers using the progestin only pill have been directly affected by the Supreme Court TRO.
“The TRO affected both women’s reproductive health and their sexual and reproductive health rights,” added Perez.
"The implementation of the RH Law has been affected for 39 of the last 52 months (since it was passed) by Supreme Court interventions. Nonetheless, we remain hopeful that the decision of the FDA (Food and Drug Administration) will lift the TRO and the RH Law will be implemented without restriction," concluded Perez.
What happens now?
“The FDA is currently preparing guidelines for the re-certification of all hormonal contraceptives and hopes to have this ready at the soonest possible time,” said Atty Katherine Austria-Lock of the Food and Drug Administration.
However, according to Lock, the agency is taking the necessary precautions to ensure that the new guidelines will not leave the door open to a future TRO on contraceptives or on any of the other food, health and cosmetics under the FDA’s scope of responsibility. The SC decision set a precedent where any other pharmaceutical company may question the registration of another product of the competition.”
RH is happiness
The issue of the Supreme Court TRO has dragged on for so long it has become blurred with legalese, a volley of he said - she said statements and long lists of clarification.
But there is no questioning the effect that it had: hormonal contraceptives were gradually being phased out from drug stores and public health clinics.
Hundreds of thousands of women were being denied their right to use birth control for their health, fertility regulation or to ensure a happy and fulfilling sex life. Those are all valid reasons to demand and expect access to a wide range of birth control methods.
Not being hostage by your fertility is empowerment in its purest form. It is empowerment that encompasses social standing, age or background.
As I write that last sentence, I think of the women in Vitas, Manila that I spent a Sunday afternoon with some months ago.
Through the help of Likhaan Women’s Health Clinic, a number of the women in the community are using contraceptive implants. [The TRO did not prevent NGOs from administering implants. When the TRO was issued NGOs and local government clinics like Likhaan took on the extra load that was left by the DOH as a result of the DOH.]
Implants are their preferred birth control method because they enjoy 3 years of contraceptive protection.
We talked about the benefit of using contraceptives and they gave me the usual replies:
"We're poor, we can't afford many children."
"We need to space pregnancies." [Hindi dapat sunod sunod.]
I nudged them a bit to go beyond the usual cookie cutter replies. I asked them about their feelings. I asked them to tell me if birth control had an impact on their feelings when it comes to sex, their husbands, their children and themselves.
And we had a total riot!
Contraceptives made them more confident about initiating sex, making it more of a two-way street. "Sometimes, it's me who wants it – and why not? He's my husband!" one woman said.
They could space their children and take a leisurely bath and *gasp* even comb their hair without a small gang of toddlers grabbing at them. "Pwede na magsuklay at hindi malosyang!” [I can comb my hair and not look mousy.] another woman quipped.
Another was more graphic when she explained how contraceptives gave her more control over her body, “When you have successive pregnancies, you have one child in your stomach, one at your tits breastfeeding, another grabbing at your skirt. Then your husband comes home and he’s going to want your vagina. What is going to left for you?”
Then I told them about the crisis brought by the Supreme Court TRO that is making contraceptives gradually disappear from clinics and drug stores.
And they fell silent. They came up with all sorts of scenarios, all ending with them helplessly getting pregnant over and over again.
"This is all we have. I hope the government doesn't take it away," they told me.
I asked what they meant by "it".
They had a hard time finding the right word for it. It occurred to me that there is no direct Tagalog word for "empowered".
In the end, the word they found was: happiness. [kaligayahan.]
Reproductive health choices are equal to personal happiness. No government agency has the right to take that away. – Rappler.com