Supreme Court vote on RH a cliff hanger

Marites Dañguilan Vitug

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Two justices appear to be in the soft middle. They can swing the vote either way.

Marites Dañguilan Vitug

The big divide in the Supreme Court over the reproductive health (RH) law continued to show during yesterday’s oral arguments—the second in a series—as one justice, who was absent during the first round, added to the ranks of the conservatives.   

As things stand, it looks like 6 justices, including Justice Arturo Brion, who joined the oral arguments for the first time, are against the RH law while about 7 are for it and 2 are in the soft middle. 

The 2 justices who can swing the vote either way are Presbitero Velasco Jr, who continued to look for a middle ground—declare only parts of, not the entire law, unconstitutional—and Diosdado Peralta who seemed to keep an open mind during the first oral arguments but was quiet yesterday. However, some Court watchers say that with Peralta’s educational background—he finished law at the University of Sto. Tomas, a conservative Catholic institution—he will most likely vote with the anti-RH bloc.

The way the voting will go remains a cliff hanger. A 3rd  round of oral arguments is scheduled August 6. 

The outspoken anti-RH justices are led by Roberto Abad, Teresita de Castro, Jose Perez, and Brion. Jose Mendoza, who is the justice in charge of the case, belongs to this conservative bloc but is dispassionate when asking questions. I count Lucas Bersamin in this group who, like Mendoza, is subdued but seems to lean against the law. He did not speak up yesterday but somehow showed his preference during the first oral arguments. 

Those who have clearly taken a position for the RH law are Chief Justice Maria Lourdes Sereno, Antonio Carpio, Estela Bernabe, Bienvenido Reyes, Marvic Leonen, and Mariano del Castillo. Martin Villarama belongs to this group, Court insiders say, but he kept silent yesterday and appeared neutral in the first round of oral arguments.

READ: Uphill climb for RH law

Religion and the Court 

On Tuesday, July 23, the Court waded into perilous territory as Luisito Liban, counsel for Couples for Christ, asked the Court to trash the RH law based on arguments of hardcore Catholics. The law violates religious freedom, he said, because it compels Catholic health workers to refer would-be patients seeking modern family planning services to other hospitals. 

These “conscientious objectors,” he explained, commit a sin simply by pointing patients to other health care facilities. “The act of referring is a serious sin. Catholic objectors become responsible for the sin of others,” Liban said, adding that Catholic teachings say that artificial contraceptives are “intrinsically evil and immoral.” In the intensity of the discussions, he mistakenly called a justice “Lord” instead of “Your Honor.”  

Liban, with a slight frame and earnest face, volunteered the information that he is active in his Church. At times, he sounded like an evangelist and drew a hiss from the RH law advocates when he said that Catholics who take artificial contraceptives are not true Catholics.      

Leonen’s flair for drama showed when he greeted Liban in Arabic to make the point that there are other faiths in this predominantly Catholic country. The youngest justice stressed, “We’re a secular court and we can’t say a law is unconstitutional because of the view of one religion…the RH law doesn’t favor any religion.” He also reminded Liban about the separation of Church and State.  

Abad who “occasionally conducts weekend training for lay and religious catechists for the Archdiocese of Manila,” according to the SC Website, found a kindred spirit in Liban. Essentially, he echoed the anti-RH groups’ position that the law, by allowing contraceptives, which are “poison,” violates the women’s right to health.  

As a rule, justices should not wear their religion on their sleeves. They should appear to be impartial. But the danger in this kind of discussion in the Court is that it drags religion in when the more fundamental issues should be on law. 

Sex education

Among the pro-RH justices, Del Castillo seemed to soften his position yesterday as he proposed to Liban, who was grilled for more than 4 hours, to make sex education in public schools optional. He asked if that was acceptable to them. Liban said it wasn’t.

Liban argued that the RH law violates the equal protection clause in the Constitution because it requires public schools to teach sex education while it is optional in private schools. He found this provision “coercive” and “discriminatory” saying that a “heavier burden” will be imposed on students of public schools because of longer study hours. Parents who oppose this but cannot afford to transfer their children to private schools are discriminated against, he added. 

Hidden costs

For his part, Brion raised the specter of the law’s “hidden costs” as he asked Liban to decipher the cultural, moral, social, and economic costs of the landmark law. This gave Liban vast leeway to argue beyond constitutional boundaries and talk about how the law will “encourage promiscuity,” lead to a “breakdown in morality,” and “open the floodgates that will threaten our values.”

Brion helped Liban along. “What is the effect of the RH law on the family?” he asked. To which Liban replied: “It will weaken the Filipino family.”

Brion continued: “Will this be consistent with the Constitution?” No, Liban said.

Brion: “Is this an anti-family law?” Yes was Liban’s response.

Throughout the oral arguments, Liban did not want to tweak the law or find “cure,” as a few justices suggested. As it came to a close, Sereno aptly described the position of Liban and his colleagues: they see the RH law as a “sledgehammer…which gives the wrong set of solutions…completely ignoring correct solutions.” 

In that case, she said, the solution is political. Liban et. al should “get more people who think like you elected to Congress.” It is not for the Court, she added, to question the government’s choice of priorities. –







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Marites Dañguilan Vitug

Marites is one of the Philippines’ most accomplished journalists and authors. For close to a decade, Vitug – a Nieman fellow – edited 'Newsbreak' magazine, a trailblazer in Philippine investigative journalism. Her recent book, 'Rock Solid: How the Philippines Won Its Maritime Case Against China,' has become a bestseller.