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Where Fr. Bernas is right and where he’s wrong


By Francisco S. Tatad

In a column on the Reproductive Health Law (PDI,July 29), our esteemed constitutionalist-friend Fr. Joaquin G. Bernas, S. J. complains  about having had to listen for 10 long hours (on the Internet) to the less than “scintillating” oral arguments on the validity of the RH Law before the Supreme Court en banc.

Many who sat through the July 9 and July 23 sessions felt the same. But the petitioners’ counsels could not have shortened the proceedings.  At the opening, I spoke for  eight minutes, without any interpellation; but Prof. Maria Concepcion Noche  of Alliance for the Family Foundation Philippines, Inc. had five hours of it  after speaking for 22 minutes.  On July 23,  Luisito Liban of Couples for Christ Foundation, Inc. had five hours also, after speaking for 20 minutes.

The wonder of it all is that on either occasion neither Noche nor Liban nor any of the Justices had to answer the call of nature. But I had to excuse myself at least thrice while Prof. Noche held the floor.

Fr. Bernas predicts  Sections 11 and 12 of Article II of the Constitution “will play a starring role” in the arguments.  He focuses on the second sentence of  Sec. 12, which provides: “The State recognizes the sanctity of family life and shall protect and the strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception…”

“In my earlier writings,” he writes, “I have taken the position that the earliest that life begins is at the moment of fertilization. This is enough to justify the prohibition of abortion clearly repeated in the RH Law. But it says nothing about what to prohibit before life begins.

“This brings us to the use of contraceptive methods.  There are those who argue that contraception kills life.  That is true if the contraceptive methods used have the effect of expelling a fertilized ovum. You don’t kill life that does not yet exist. Those who argue that contraceptives currently in the market kill life must be able to point to the precise contraceptive devices that are abortive.  A sweeping generalization is irresponsible.”

Contraceptives are artificial methods or devices used before, during or after coition to prevent conception.  Some could be abortive, and Fr. Bernas is simply being reasonable when he says anyone who says contraceptives kill should be able to show which contraceptives do.

But the constitutional issue is not whether contraceptives are abortifacient or not, but rather whether the State should provide contraceptives at all. My position is that under Sec. 12, the State is prohibited from providing contraceptives, whether abortifacient or not.

Fr. Bernas observes correctly that the Constitution “makes no specific prescription” on how to protect the unborn from conception. An enabling law is needed to provide the specific measures.  But I believe he errs when he suggests that just because the Constitution “says nothing about what to prohibit before life begins,” the State is free to provide contraception.

It is beyond dispute that the positive duty of the State to “protect the life of the unborn from conception” (undefined for now) carries with it the negative duty not to do anything that will “prevent conception.”  Unlike the positive duty, this needs no enabling legislation.  Anything that will harm the unborn, or that will prevent conception, the State cannot do.

This is precisely what I tried to point out in my opening  statement.  “The State cannot function as the protector of the unborn on the one hand, and as the source of contraception on the other; it cannot be the protector and preventer of conception at the same time.”

Were we to hold the opposite view,  then only the embryo that survives the State’s program of contraception would be entitled to  the State’s (undefined) protection. We would then have to  read Sec. 12 as follows: “It (the State) shall equally protect the life of the mother and the life of the unborn from conception,  which (or who) shall have survived the State’s program of contraception.” Should the program prove to be 100 percent effective,  the State could end up having no  unborn embryos “to protect.”

We would have created a monumental absurdity, which could extinguish

altogether the right to life of  future generations (our Constitution uses the word “posterity,” which means “all the descendants of a person in a direct line to the remotest generation”)—a right enshrined in constitutional law and international law, and recognized by the Supreme Court  in Opusa v. Factoran.

Thus, whether or not the  State can lawfully prevent a single baby or an entire generation from being conceived or one solitary mother or a generation of mothers from conceiving is, at bottom, the prejudicial question.  If the State can do that while claiming to remain “the protector” of the life of the unborn, then we shall have gone beyond the pale of reason and abolished the first principle of speculative reason—the principle of non-contradiction.  It would be pointless to be talking about rights at all; we should be talking only about power—the power of the powerful.

But if we can agree that the State can never be the protector and the preventer of conception at the same time,  then there would be no need to prolong this conversation.  The entire RH Law falls apart, and there would be no need to assail its constitutionality  on any other ground, even though there are indeed so many other grounds.


August 1, 2013 | Filed under: Independent Articles,News Articles | Posted by: mongladz




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