Tuesday, November 12, 2013

Strict scrutiny test kills RH law

Strict scrutiny test kills RH law

As one of the petitioners against Republic Act 10354, otherwise known as Responsible Parenthood and Reproductive Health Act or "RH Law", I am sharing our final argument called "Memorandum," where our main argument is that the law has to be screened using Strict Scrutiny Test because it transcends rights reserved to the citizens where the State is forbidden to interfere.

Foremost of these unalienable rights is the right to privacy of women that the State cannot dictate or egg them into using or not using contraceptives.

Other unalienable rights that will be abridged by RH law are Constitutional rights: (a) right to freedom of expression; (b) right to religion; (c) right of parents not to be limited of their rights and duties in the rearing of their children; (d) right of the parents to education of their children; (e) right to religion and the exercise thereof; (f) right to practice medical profession; (g)  among others.

Under the Strict Scrutiny Test, a law can be valid only if it passes the three sub-tests: (1) Is there a compelling interest for the State to keep the law?; (2) Has its essential aspects been narrowly tailored?; and (3) Is the means employed the least restrictive?

In all these sub-tests, we found that RH law failed miserably.

We also were able to compare the data of population in 1970 as against 1980, 1990, 2000 and 2010 and we found out there has been no noticeable gains on the part of the Marcos Family Planning Program that has been in effect even until today because free contraceptives have never been stopped in many health center clinics.

TO LEARN MORE, AND IF YOU ARE MINDED, YOU MAY READ OUR MEMORANDUM (corrected of typo errors) POSTED BELOW:






Republic of the Philippines
Supreme Court
Padre Faura St., Manila



MILLENNIUM SAINT FOUNDATION, INC.,
ATTY. RAMON PEDROSA, ATTY. CITA
BORROMEO-GARCIA, STELLA ACEDERA,
ATTY. BERTENI CATALUNA CAUSING,
                                                            Petitioners,


            - versus -                                                       G.R. No. 206355


OFFICE OF THE PRESIDENT (OP),
OFFICE OF THE EXECUTIVE SECRETARY (OES),
DEPARTMENT OF HEALTH (DOH),
DEPARTMENT OF EDUCATION (DEPED),
                                                  Respondents.
x-------------------------------------------------x



Memorandum



            Is there such a hidden purpose or end in Republic Act 10354? If so, what is it?

            Is that hidden end a compelling State interest?

            Assuming without conceding that the end is compelling, do the means employed to achieve the end substantially advance the end?

            Is it a COMPELLING END for the State to have citizens that it calls as “responsible parents” as being informed about birth spacing and of choices of readily available contraceptives to suit their decisions on birth spacing?

            Is it not that with this stated purpose of making parents as “responsible” just because they are educated about birth spacing and about free contraceptives they could choose to effectuate birth spacing, the genuine purpose of RA 10354 is actually to control births?

            With the majority of its provisions or sections targetting the poor families, is it not that RA 10354 wants to control births among the poor Filipino families only?

            By the way, does the State have any right to prevent births from happening or to control births, particularly among the poor?

Is it not that the State is unwittingly committing a genocide among the poor although the means it is employing is in the guise that “the conscientious objectors are not compelled and the ultimate beneficiaries are free to decide on whether to use what are dangled before them for free”?

Is it not that the minimum standard allowed by the State for contraceptives by limiting only to those that do not prevent implantation of fertillized ova violate Section 12 of Article II of the Constitution?

Does the fact that RA 10354 does not compel the use of oral and injectable contraceptives and contraceptive devices make the State violate the right to privacy of those to be affected?

Is it not that implementation of contraceptives oppressive and discriminatory to the exercise of religion by Catholic believers and that in effect the law de-establishes the Faith and in effect strengthen other faiths?

Is it not that compelling marrying couples to undergo education seminars on artificial contraceptives before they can be issued marriage licenses an added burden, oppression, discrimination and assault against the Catholic religion, particularly when the marrying couples are of Catholic faith?

Is it not that compelling service providers who are religious conscientious objectors to refer RH patients to other service providers opressive, discriminatory and an assault against the religious faith of these objectors?

Is it not that punishing objectors who happened to give opinions not jiving with the opinions that the State wants oppressive, discriminatory, assault against the objectors’ faith, and a violation of the freedom of expression clause of the Constitution?

            Is it not that in enacting and implementing RA 10354 the State is now threading the zone of the Church in violation of the Separation of the Church and State provision of the Constitution?

            Is it not that RA 10354 violating the right to education of the parents for their children?

            With these questions and more, the petitioners in Millennium Saint Foundation, Inc. et al, in G.R. No. 206355, respectfully submit this Memorandum.



The Motion for Leave



            This Memorandum is supposed to be due on 26 October 2013 as directed during the 27 August 2013 en banc hearing that the parties were given sixty (60) days to submit their respective memoranda.

            However, the undersigned counsel has been pre-occupied by daily court hearings in Metro Manila and other provinces, interviews with other clients, writing pleadings for other cases and the necessary rest, making it physically impossible for him to do researches and write this Memorandum.  This is not to mention the observance of reverence to the dead loved ones.

            The undersigned also needs to live that he must perform his commitments with other clients if only to get some to sustain his living, the salaries of his staffers, the daily expenses in his law offices, the utilities that are indispensable to his law practice, his transportation and clothing expenses, etc.

            Because the undersigned failed to readily file a motion for extension of time, he saw it better to just complete the Memorandum and seek Leave of Court for its admission when it is submitted.

            Additionally, the research works needed to complete the Memorandum have been so enormous considering the broad topics involved that are extraordinary to fathom and cover in a few days of studies.

            Upon these justification, the undersigned seeks leave of the Court to admit this Memorandum for the purpose of giving more enlightenment for the most intelligent resolution of the admittedly complicated issues involved.


                                           The Locus Standi     


            Because the respondents are objecting to the standing of the petitioners here in pushing for this petition, it is deemed best to reiterate the justifications they wrote in their petition to argue why they have standing to bring forth this action.

            Before reiterating the justifications, let it be stated expressly that the petitioners here are taxpayers, too, who are directly injured when RA 10354 is implemented because the implementation entails substantial sums in billions of pesos from the taxes collected by the State from the petitioners and all others.

Nevertheless, the petitioners here have locus standi also because of the following:


a.     The degree of transcendental importance of the matters involved in this petition is enormous that its effects even transcends several generations from now;

b.     There is that paramount public interest in the issue as demonstrated by the debates in and out of halls of the House of Representatives and the Senate, where it was seen the voting in the plenary of the two houses of the Congress was attended by the pro- and anti-RH Bill, including the believers in the teachings of the Roman Catholic who fought for the rejection of the Responsible Parenthood and Reproductive Health Bill, as well as movements and alliances that were formed and the extraordinary activism that were done;

c.      The passion against the RH Law has never waned and will never die as demonstrated by the boldness of the posting of “Team Patay” and “Team Buhay” tarpaulin on San Sebastian Church in Bacolod City, which is now the subject of intense controversy because it has been defiant of the order of the Commission on Elections (Comelec) take it down;

d.     The law styled “The Responsible Parenthood and Reproductive Health Act of 2012,” otherwise known as Republic Act No. 10354, without doubt has overreaching significance to the society that this will define the rule of moral conduct in the next generation and beyond;

e.     The degree of offense that the law will cause on the Catholics that include the petitioners who are entitled to have their doctrine or religious beliefs protected against acts of intrusion by the State into the zone of Catholic dogmas and doctrines, that the Constitution even commands that the separation of the Church and the State shall be inviolable;

f.       A direct injury that would be caused on the petitioners in the form of the “de-establishment” or blatant assault on the faith of the petitioners as Catholics;

g.     While the petitioners are conscientiously guarding their beliefs and exercising their freedom of religion in the form of shunning against anti-life contraceptives and spread this part of the teachings of their religion, the State will openly and blatantly espouse the very same devices that the Catholics religiously object;

h.     That assault by the State that is committed by way of providing what are a taboo as a matter of the exercise of religious belief, openly insults the petitioners and put them in a situation as if they are outcasts;

i.        The RH law also brings direct personal injury to the petitioners in the form of the sleepless nights, anxieties and revolting hearts caused on them;

j.       This is because the petitioners cannot stomach the sight of them having their share of taxes they paid to be given for free in the forms of condoms, pills, injections and other contraceptives so that others will enjoy sex;

k.     These also constitute unjust enrichment on the part of the free beneficiaries of these particulars at the expense of those who pay taxes;

l.        Also, a direct personal injury that will be caused on the petitioners come in the form of the appropriation of money from the taxes and the petitioners are taxpayers, too;

m.  It does not only assault the petitioners as a matter of tax issue, but also as a matter of torturing the petitioners’ minds to think that a part of the taxes they pay are used to buy contraceptives to be given to others so that these lucky beneficiaries enjoy sex at the expense of taxpayers;

n.     Such appropriation is proven by Section 25 if the same law;



The Arguments Why RA 10354 is Unconstitutional



SUBTLE ASSAULT TO
RIGHT OF PRIVACY
MAKES LAW VOID



There is no right of privacy for any person stated expressly in the 1987 Constitution.

By invoking the decision of Grissworld vs. Connecticut, 381 US 479, laid down by the US Supreme Court in 1965, where it was ruled that while the right of privacy is not stated in the American Bill of Rights stated in Amendments thereto, the right of privacy is found within the penumbras of stated rights.

The right of privacy is deemed reserved by the people although not stated in the Constitution.  It is so substantive.  The nearest provision of the Philippine Constitution that protects privacy is Section 2 of Article III, which states that the right of the people to be secured in their homes, papers, and effects shall be inviolable against unreasonable search and seizure. 

The right to a reproductive health that is not stated in the Constitution but sought to be established by RA 10354 pales too far in comparison in terms of substantiveness.

The same is true in the Philippines, a nation whose system of government is borrowed from the United States of America.

In Grissworld, the Supreme Court of the US ruled that the State has no right to invade into the bedrooms of married couples.

To highlight right of privacy of the couples, Grissworld said:


The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U.S. 616, 630, as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life." [*] We recently referred [p485] in Mapp v. Ohio, 367 U.S. 643, 656, to the Fourth Amendment as creating a "right to privacy, no less important than any other right carefully and particularly reserved to the people." See Beaney, The Constitutional Right to Privacy, 1962 Sup.Ct.Rev. 212; Griswold, The Right to be Let Alone, 55 Nw.U.L.Rev. 216 (1960).

We have had many controversies over these penumbral rights of "privacy and repose." See, e.g., Breard v. Alexandria, 341 U.S. 622, 626, 644; Public Utilities Comm'n v. Pollak, 343 U.S. 451; Monroe v. Pape, 365 U.S. 167; Lanza v. New York, 370 U.S. 139; Frank v. Maryland, 359 U.S. 360; Skinner v. Oklahoma, 316 U.S. 535, 541. These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.

NAACP v. Alabama, 377 U.S. 288, 307. Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The [p486] very idea is repulsive to the notions of privacy surrounding the marriage relationship.

We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.


            With this, the US Supreme Court ruled that the Connecticut law punishing the use of contraceptives is unconstitutional.

The US Federal Supreme Court further stated that the State cannot inquire into the bedrooms or homes of married couples to look for condoms or pills because the State has no right to invade into the privacy of homes and beds.

The rationale of the Grissworld right of privacy ruling is that whatever the decision of the couples, whether to use contraceptives or not, the State cannot come in to this zone of privacy to prohibit couples from exercising what they want on bed that must only be reserved for them alone.

It necessarily follows from this landmark ruling that the State cannot compel its way to make all women use contraceptives either.

And because it is now established that the State cannot invade into the person’s right of privacy, it also necessary follows that the State must respect the right of privacy of those who will be affected by the implementation of RA 10354.

Who are to be affected by RA 10354?  They are:

1.     Married women and their husbands;

2.     Unmarried women and their live-in partners;

3.     Women and their boyfriends;

4.     Women who have no boyfriends and their accidental boyfriends;

5.     Minor girls and partners;

6.     Marrying couples; and

7.     Children as to their future right of privacy when they become adults.

Will the rights of these persons to privacy be assaulted if RA 10354 is implemented?

Let us see.

The unspoken but clear purpose of RA 10354 is birth control.  No matter how its advocates deny it the clear import is it wants that the population must be reduced because they blame the population of the poor is so big that they have been the cause of economic, social and political problems of the State.
                  
In trying to fend off insistence and arguments that the law has no other purpose but to control birth, the advocates made claims that the purpose is only to empower women to have information on choices to use contraceptives or not, and to readily make available for free these contraceptives with the end view of poor families having a manageable number of children to be raised in a more humane manner, where it equates humane manner as lesser number of children per poor family.

In other words, because the State failed to support the families as mandated by the Constitution in order to strengthen them as the basic autonomous units of the society and the nation, RA 10354 inordinately gives the State the solution that is not to strengthen them but to reduce the size of each family.

Let this word autonomous be highlighted because being autonomous is no less than synonymous to privacy.

For clarity about the word “autonomous”, let Section 12 of Article II be restated, to wit:

Section 12.  The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution...

The representations of the advocates of RA 10354 are that the law gives options to the ultimate beneficiaries, the poor wives or women, whether to use contraceptives after they were given instructions and information regarding contraceptives and regarding its free availment from the government health centers.

Logic shows that if RA 10354 truthfully gives free choices whether to use contraceptives or not, it will not be able to make substantial gains of having substantial number of women avail of contraceptives.    

Why?     Experience in the Family Planning programs implemented by Marcos never resulted in any noticeable gain of population control, despite the boldness of the dictator in pronouncing the intention to reduce the population of the Philippines.   

The data of the National Statistical Coordination Board (NSCB), an agency of the government, showed that from the population of the Philippines of 36,684,486 in 1970, it grew to 48,038,460 in 1980.  This represents a 31.7% increase. 

From 1980 to 1990, the years when Marcos fully implemented Family Planning giving all kinds of contraceptives for free to Filipinos in all barangay health centers, the population increased to 60,559,116.  This represents a growth of 26% over a ten-year period.

From 1990 to 2000, when half of this period was administered by Corazon Aquino who also continued the free contraceptives program, the population grew to  76,504,077.  This represents a growth of 26.7%.

From 2000 to 2010, population grew to 92,095,905, a growth of 20.4%.

Reading the data shows that there is no substantial gain that can be seen in terms of reduction in population growth.

These data were culled from the website of NSCB, and the particular URL is http://www.nscb.gov.ph/beyondthenumbers/2012/11162012_jrga_popn.asp#tab2.

This goes to show that the representation that RA 10354 is voluntary to the beneficiaries is false.

Given the statistical facts that they cannot achieve birth control or birth spacing by giving free contraceptives without compulsion, as what happened from 1970 to 2010, the hidden agenda is that RA 10354 will employ some form of compulsion, subtle or otherwise.

So that it is established now that RA 10354 will employ force, brute or otherwise, in order for the advocates to achieve the hidden purpose of birth control.

Nevertheless, at least it can now be said that there is a clear-and-present danger that the State will compel poor women to use contraceptives.

Stated otherwise, it cannot be said that persuasion or education about contraceptives and the free availment of contraception items can cause poor couples to decide to reduce their nuumber of children.  It cannot do so because the nature of things dictate that the mindset of couples when they are sexually-fired-up in bed will never give a time for interference in the trip to heaven.  Of course, if the law will only be optional to ultimate beneficiaries, for what the heck is this law when there is no compulsion?

In other words, the claim that the law is voluntary on the part of intended poor women as beneficiaries is only to hide the real agenda.

Will the State just allow to have a law that will only be voluntary when it means its stated purpose cannot be achieved? No!  The claim of voluntary nature of the law is only a smokescreen.

For how can the State realize the end of having substantial number of “informed women” choosing to avail of contraceptives if it were not to use the compulsive police power? 

And by the nature of circumstances of compliance the law wanted cannot be possible because there is no other way but to intrude into the zone of privacy. 

True enough, a reading of some provisions shows compulsory schemes deviously hidden through play of words as will be discussed below.

Now let the procedures or the means be inquired into in relation to privacy rights.

The procedures laid down by RA 10354 show that the State will implement a massive purchase of contraceptives to be given for free to all poor women and educate these females on contraceptives and on goods available for them for free.

And in doing these procedures, the law wants to ensure the education and the use of these contraceptives by these women so that the law requires service providers (doctors, nurses , midwives, barangay health workers, hospitals and maternity and RH clinics) to give to these women information on contraceptives and to administer, prescribe and give contraceptives to those women availing thereof. 

The law also requires service providers who are conscientious religious objectors to refer these women availing contraceptive education and services to other service providers.  

The law also requires the marrying couples to undergo seminars on contraceptives before marriage licenses are issued regardless whether marrying couples are Catholics or Muslims or conscientious objectors.

The law also requires local governments, including the Autonomous Region for Muslim Mindanao (ARMM), to participate in the implementation of RA 10354.  

The law now commands that when the husbands and the wives do not agree on whether the wives should avail of contraceptives, the wives’ decision shall prevail.  

The law now uses police power to punish with imprisonment any service provider or any person for giving incorrect information on contraceptives or reproductive health, although the question of which is correct and which is not is highly debatable.   

The law also wants to ensure a kind of posterity with Filipinos having more population using contraceptives by giving “age-appropriate” sex education on public schoolchildren and sparing kids in private schools.   

The law also wants to integrate RH law programs as part of anti-poverty programs, which includes giving of Conditional Cash Transfers (CCTs) that will undoubtedly use a condition of compliance with RH law to compel these weak persons into submitting to the RH law wishes.  

The law also wants to do it in so far as Persons With Disabilities (PWDs) whose inherent physical incapacity stands to yield to subtleties of RH law programs.

All the procedures stated above undoubtedly interfere with the right of privacy of prospective mothers, by force or subtle means or otherwise, in order for them to be intimidated into making vitiated or compelled decisions to practice contraception.

On the surface of the law, it can be seen that it appears to be not using compulsion to ensure that women will use contraceptives.

But when analyzed a little deeper, it will actually employ a form of compulsion that may be said as substantial or constructive force in order for the State to be able to invade the penumbra of privacy rights of the persons mentioned above.

Take note that the law, RA 10354, is dressed with words and phrases of voluntariness. In other words, it is deceptive.

One compulsory mechanism is found in Section 15 of RA 10354.

Section 15 of RA 10354 commands that no marriage license shall be issued unless the marrying couples present Certificates of Compliance certifying they had duly received adequate instructions and information on responsible parenthood, breast feedings and infant nutrition, without regard to their conscientious or religious objections.

Because responsible parenthood as packaged by RA 10354, will include artificial contraceptives, therefore the law compels the marrying couples to open up their zone of privacy to be influenced by the instructions and information on artificial contraceptives.   

For sure, the instructions and education will build a culture or mindset of acceptability that sex is alright because there are contraceptives that can hide promiscuities of either spouse.  That will in effect loosen their moral fiber to sin against the Commandent that says: Thou shalt not covet thy neighbor’s wife.

The RH education in teaching on contraceptives attempts to steal the minds of marrying couples who are taught by the Catholic and other faiths the sacredness of sex for married couples only, the value of abstinence from sex as a necessary sacrifice that the couples must give or the unmarried must do in order to keep faith with God.

One more issue with this RH law is that it silently pronounces that SEX IS A RIGHT THAT CAN BE EXERCISED BY ALL PERSONS DAILY AND TO MAKE THAT RIGHT MEANINGFUL, A CONTRACEPTIVE MUST BE PROVIDED TO BALANCE AGAINST EXPLOSION OF BIRTHS.

Hence, it is very clear that while the law, RA 10354, does not compel the marrying couples to use artificial contraceptives, it is employing a constructive compulsion as to what the marrying couples must do in their most private moments in homes and on beds.

Because it is the right of privacy of the marrying couples on how to do sex and how many children they want when they make in bed, no amount of force that may be little or enormous, threat, influence or compulsion from the state is allowed.

Needless to say, if marrying couples have the right of privacy to use artificial contraceptives and natural contraceptives, they also have equal right not to use any contraceptives or resort to what Catholic endorses as a matter of the Doctrine of Life, the calendar or the Billings Ovulation Method.

In short, if the marrying couples do not want, they cannot be compelled to have their right of privacy to be vitiated by instructions or information teaching them on what to do in bed, how to do in bed, how to space the births of their children, how to found their family, whether in accordance with their religious convictions and the demands of responsible parenthood.

In other words, they can tell the couples what they want to, but they cannot compel the marrying couples to listen by withholding the license to marry.

Section 14 of RA 10354 is also another evidence of compulsion.

This section compels the inclusion in the schools’ curricula reproductive health lessons and these certainly include contraceptives.   

This is also no doubt a form of compulsion, indirect it may be because it is forced on the public school children only as if the State seeks to intervene in the public schoolchildren’s right of privacy when they become married adults.   This is without regard to the religion of the children or their parents.

The fact that the law does not state about private schools’ children makes the violation to the right of privacy of the public school kids extremely disgusting, a form of oppression and discrimination as will be explained below.

Section 17 of RA 10354 is another provision of compulsion for the enforcement of the use of contraception in violation of the right of privacy of unmarried couples, single women, prostitutes, minor girls engaged in sex, and even married women engaging in sex with men not their husbands.

As in the marrying couples compelled by means of marriage licenses withholding if they refuse to receive instructions and information about contraceptives, these other women groups also have the right of privacy that they cannot be interfered with in their decisions in their most private moments in bed.

Section 11 of RA 10354 is another form of compulsion that this law deceptively will surely use.

In gist, this section commands that reproductive health, of course including contraceptives, shall be integrated in the government’s anti-poverty programs.

This means that before the poor and the poorest of the poor can avail of anti-poverty programs, including Conditional Cash Transfers (CCTs), integration of receiving RH education and instructions as a condition before receiving grants will be done as part of the conditions.

If the poor and the poorest of the poor are subjected to this condition, they will be submissive because they are the weakest class.

And if the poor and the poorest of the poor submit to the wishes of the State, the right of privacy of these weakest persons will be interfered with.

Worse, their compliance with the RH law may be made by the State as determinative of whether they will be given the next Conditional Cash Transfer (CCTs) or not.  

If this happens, compulsion in its real meaning is present, in violation of the right of privacy of the poor to decide freely whether to use contraceptives or not and on how they shall found their families.

While RA 10354 does not mention that it will integrate RH programs into CCTs, the fact that its integration is not prohibited expressly means that there is that clear-and-present danger that the State will use CCTs as compulsory schemes against the poorest of the poor.

Like the poor sectors, Section 18 of RA 10354 also has the same effects on Person With Disabilities (PWDs) who have financial disabilities as well. 

Moreover, government programs for them may be withheld, officially or unofficially, directly or indirectly, if they refuse to comply with the conditions of RH Law that may be integrated into their separate programs.

Section 19 of RA 10354 is devastating in implementing the law. it is the fact that the DOH and several provinces and cities run hospitals to where the poor and the vulnerable run to for treatment.

Section 19 (a)(1) and Section 19 (a)(2) command that the DOH fully and efficiently implement the reproductive health care program and ENSURE people’s access to medically-safe, non-abortifacient, legal quality and affordable health goods and services.

With the position of strength of the DOH, it will take advantage of the public hospitals in dealing with the poor using them if only to ensure the receiving of information and education about contraceptives.   With this, the right to privacy of the person seeking treatment and medication from these national and local hospitals are influenced and interfered with.

Again, the fact that it is not prohibited to integrate RH education as a condition to be treated at national or local public hospitals, there is now also clear-and-present danger that these will be utilized to gain leverage over poor women.

The most compulsive of all are Section 23 and Section 24 of RA 10354.

Section 23 defines what acts are prohibited while Section 24 provides for the penalties of imprisonment and prohibitive fines against persons violating RA 10354.

These imprisonment and prohibitive fines compel the people, especially the poor and the vulnerable, to use contraceptives in violation of their right to privacy of persons, especially the poor who are the targets.

The acts defined as punishable under Section 23 are as follows:

a.     Without distinguishing whether religious objectors or not, any health care service provider, natural or juridical persons officials, will be punished, if they knowingly withhold information about contraceptives or restrict the dissemination on contraceptives;

b.     Without distinguishing whether religious or not, punishing refusal to perform contraceptive procedure on any person of legal age on the ground of lack consent or authorization of the person spouse, parental consent;

c.      Without distinguishing whether religious objectors or not, punishing refusal to extend quality health care services and information on account of the person’s marital status, gender, age, religious conviction, personal circumstances or nature of work;

d.     Punishing religious objectors for not immediately referring to another service provider the person seeking contraceptive service in not emergency situation;

e.     Punishing any public officer who prohibits delivery of contraceptive services and goods; and

f.       Other acts any such violation is made punishable with imprisonment and fine in order to compel these contraceptives unto the poor women.


Thus, it is very clear that RA 10354 violates the right of privacy of women.

Because women or wives cannot procreate and cannot have satisfying sex without men, it also necessarily follows that the right to privacy by men or husbands are violated by RA 10354.

Therefore, there is no doubt that the right of privacy of all classes of women and men, including their children as future mothers and fathers, have been violated by RA 10354.

As such, there is also no doubt that the entire RA 10354 is UNCONSTITUTIONAL.

Any woman’s or man’s castle is the imaginary zone of privacy that she or he can find in the kingdom of her or his home.


VIOLATING THE CONCEPTION
BAR OF THE CONSTITUTION;
CLEAR AND PRESENT DANGER
TO VIABLE LIFE OF HUMAN BEING



In the standard laid down by RA 10354 to determine what kinds of contraceptives are allowed to be provided to the beneficiaries for free, it sets the minimum as those contraceptives that do not prevent implantation of the FERTILIZED ovum.

The advocates of the RH law are one in saying that they do not consider fertilization as conception.  They even cited their own authorities to support their stand.  To them, as argued by Rep. Edcel Lagman, conception occurs only at implantation of the fertilized ovum in the wall of the uterus.

The RH advocates forgot that aside from the very sound argument of the distaff side, there are also authorities saying that conception occurs at fertilization.

In other words, the Anti-RH advocates may concede that half the authorities say conception occurs at implantation and the other half say conception occurs at fertilization.

At least, even if the world is evenly divided into two, the most that can be conceded by Anti-RH advocates is the fact that there is no certainty that conception occurs at implantation or at fertilization.

And even if the petitioners still further concede that even the Supreme Court justices have no authority or moral power to say which is which, all certainly agree that the rule of prudence and rule of conscience are the better options in the face of uncertainty.

And before going further, let it be pointed out that in the Senate plenary debate between the pro- and anti-RH senators on the issue of where does conception occur, Senator Vicente Sotto III made a reservation that the question be better left to the Supreme Court to answer.

With all those stated assumed concessions without admitting, if we are not sure whether we are killing life during fertilization or not, prudence and conscience to human dignity, and human life and conscience not to repeat the “Hitlerian Doctrine” of genocide dictate we better preserve the oldest theory that conception occurs at fertilization.  In this manner, no one would be guilty.

And if we now respect fertilization as the very thing that Section 12 of Article II of the 1987 Constitution speaks about, it necessarily follows that all the sections and provisions of RA 10354 on contraceptives are unconstitutional because they are all deliberately intentended to be applied within the standard “that do not prevent implantation of the fertilized ovum.”

It does not follow that certain contraceptives that do not prevent implantation of fertilized ova do not kill fertilization.

Stating otherwise, it does not matter if certain contraceptives can kill fertilization when taken in by women for what matters to them is that implantation of fertilized ova is not hindered.

Lest it be clarified that the protection given by the standards of RA 10354 is only to the ova that have completed the fertilization process.  They do not protect the ova while these are still undergoing fertilization. By most literatures, fertilization is completed in 12 to 24 hours.  Therefore, if we were to follow the standards of RA 10354, it is allowed to stop right away the fertilization that has already started and the possibility is very good considering that there is a working time frame of 12 to 24 hours to apply the kill pill.

The Supreme Court has ruled in several instances issuing injunctions even if the acts being sought to be enjoined are yet imminent or even less imminent or in the stricter clear-and-present danger state.

In the instant case, the petitioners argue that THERE IS A CLEAR-AND-PRESENT DANGER THAT A VIABLE LIFE IS KILLED IF CONTRACEPTIVES PREVENTING ONLY IMPLANTATION ARE EMPLOYED.

So that by invoking the clear-and-present danger to human life even at the stage of fertilization or at the stage of the start of fertilization, the petitioners insist to the Honorable Court to issue a writ of prohibition against Republic Act No. 10354.

So that it is not material, even if these contraceptives are optional to the beneficiaries and free to use by them, the State cannot be permitted to alienate life by indirectly doing so through the beneficiaries who may choose to use the killer pills or morning-after pills designed to stop fertilization that has possibly already started by the time of the taking of the pill.  This is because morning-after pill is taken the day after the couple had sex at night.   

If there is a clear-and-present danger to the viability of human life at the start or middle or at the point before completion of the fertilization, it must be stopped even if the decision to use the killer pills rests in the hands of the mothers or would-be mothers.

            NOW, by saying that only those contraceptives that do not prevent implantation of fertilized ovum are allowed, the law is tricky enough to go around the Constitutional prohibition against destruction of the unborn from conception and making many Catholics believe that the law does not kill fertilization by making representations that it respects life of the unborn from conception.

            It is tricky because it can bring up an impression to the gullible and the less-educated academically that it also protects the life of the unbron from conception.

            But upon deeper look at the phrase, it is open-ended in so far as the protection of the unborn from conception.

            The petitioners insist that If we talk about conception, it is not confined to fertilized ovum only.  It includes the initial moment for the entire conception to begin.

            To stress: right  at the moment of the meeting  or contact of the sperm  and the egg, when fertilization is to begin, which from a point before the meeting may be a one trillionth split of a second, or a billionth split of a second, or a split millionth of a second or a thousandth split, or even a hundredth split, human life has the first real chance of existing.

            If sperm and egg contact, as against the time prior to their contact, there begins the chance that the person of a new Jose Rizal will exist and will be born.  If contraceptives are to be allowed to kill that, we lose the chance of having a Jose Rizal.

            The position of the petitioners is that conception occurs at the point of contact because it is where the real chance of making a new Jose Rizal begins.  It will follow the path to become a fertilized ovum and to be implanted in the womb of his mother.  Of course, prior the meeting of the sperm and the egg, there is no real chance of making a new Jose Rizal.

            If we are to follow the standard of contraceptives as “those that do not prevent implantation,” then it refers only to protection to fully fertilized ovum and it excludes the beginning and the middle of the process of fertilization where the chance of having a new Jose Rizal has a good chance to be born.

            With this it is very clear that the RH law standard violates the provision of the Constitution that declares that the life of the unborn shall be protected from conception within the definition of conception as being fought for by the petitioners.

            Analyzed in another way, let us reiterate the arguments of Millenium Saints Foundation, Inc. Et al. ( G.R. No 306355), that conception occurs right at the time when the sperm meets the egg.

It is so because conception comes from the word concept; or idea of a proposed thing.

If it is yet a concept and is now put to action, either of the two things will happen: either it comes to fruition or it fails.   

If conceiving a child is to be talked about, the coming to fruition means that fertilization is completed while the failure means that fertilization did not complete.   

Nevertheless, it is a fact that it is in the point when the sperm meets the egg that  the possibility of creating a child like Jose Rizal can truly and really begin.   

Of course it is the only truth that is not debatable: That the possibility of a child getting conceived at the time of the meeting of the sperm and the egg is real and factual, not merely conjectural, not merely abstract, not merely imaginable.  

This  is because a couple may agree  to create a child but unless the sperm of the man meets the egg of the woman there is no actual and real possibilility that a child like Jose Rizal can be conceived.     

Summarily, it is very clear that the real,actual and factual chance that a child like Jose Rizal is conceived is only when the sperm meets the egg cell.   It can also be said that when there is no actual meeting of the sperm and the egg, there is no actual or factual chance that a child will be conceived.

            Most important, if it is in the actual meeting of the sperm and the egg that factual chance of a child is getting conceived, it is also in that point that conception begins; when fertilization begins.

            Now, does the standard put up by the RH law protect the meeting point of the sperm and the egg?

            The answer is: “No, it does not.”

            RH law does not protect the “contact point” meeting of the egg and the sperm.  

It does not matter to RA 10354 because what matters to it is only to ensure the implantation of a fertilized ovum (FO).    It does not prohibit oral and device contraceptives from preventing fertilization to complete once started by the meeting of the sperm and the egg.  The real intention of killing fertilization is the fact that emergency pill or morning-after pill is among those endorsed by the law; which when taken sexual intercourse occurred about six hours before while the woman was sleeping with her man in bed.  The fact that there is sufficient lapse of time from the coitus, there is a possibility that the sperm had already met the egg when the morning-after pill or emergency pill is to be taken orally. 

            To repeat, what the RH law states as a limitation is: universal access to RH care services, methods, devices  and supplies WHICH DO NOT PREVENT THE IMPLANTATION OF A FERTILIZED OVUM. See Section 2(d) of RA 10354.  (Underline and capital letters used to stress.)

            This means that RH law allows killing of an ovum that is yet being fertilized by the sperm or an ovum that is still meeting with the sperm or has just met the sperm.

            With this standard, it is now very clear that the RH law must be struck down in so far as it gives universal access to services, methods, devices and supplies that kill ovum being fertilized.

The functions and effects of these contraceptives kill the ova when they are yet-being-fertilized, or when the fertilization has not yet been completed, or is when fertilization is about to complete.   And if the ova being fertilized are nipped in the bud, they can never come to the stage where they become new possible Filipinos ready for implantation in the womb of their mothers. 

Nevertheles, the petitioners wish to reiterate that there is clear-and-present danger to a new zygote if the contraception devises or contraceptives will be allowed to kill the ovum and the sperm at the beginning or during or at the end of fertilization.



VIOLATION OF
EQUAL PROTECTION
RIGHTS OF CITIZENS


A.    Unborn at fertilization vs Unborn at implantation


            There are not a few instances that RA 10354 violates the equal protection clause.

            First, RA 10354 violates the equal protection right of the unborn at fertilization as against the  unborn as a fertilized ovum ready for implantation.

            There is no valid substantial classification between the unborn still being fertilized and the unborn already fertilized ready for implantation.

            For how can there be valid classification that is substantial when the law does not even define what is conception?

            Assuming the precise definition of conception is to be set aside, still the classification will not be germane to the purpose of the law that is birth control, or the disguised smokescreen called “promotion of reproductive health” of the woman bearing the unborn at fertilization stage and the same unborn at implantation stage.

            Will the mother be better off if the standard is protection of fertilization compared to the protection at implantation?

            Clearly, there is no causal connection between reproductive health by protecting the unborn at fertilization and the reproductive health by protecting the implantation of the unborn.

            But the petitioners concede that the classification is germane if the purpose is to control birth and reduce population.    But the problem is that the State has no authority to control birth, owing alone that there is nothing in the Constitution that authorizes it and that it cannot be presumed, and the fact that doing so will not avoid violation right of privacy.

            Additionally, the State cannot do so to allow the mothers to kill fertilization because there is nothing in the Constitution that defines whether it is referred to as conception or that there is nothing in the Constitution that allows killing fertilization either.


B.     Objectors service providers vs non-objectors


            There is also equal protection clause violation in classifying conscientious objectors from non-objectors.

            First, it is not clear who are conscientious objectors. It is not defined in the law. 

Second, it is not clear who are non-objectors, it is also not defined in the law. 

Third, if objectors refer to the service providers as those whose religion doctrine prohibits the practice of contraception, then there is a violation of equal protection clause on the part of non-objectors service providers, who could complain why the objectors should be exempt when they are not even exempt from refering patients to non-objectors?

Of course, many among the non-objectors will invoke their right of privacy or the RIGHT TO PRACTICE PROFESSION THAT CANNOT BE INTRUDED BY THE STATE.


C.     Children in Public Schools vs Children in Private Schools


Another clear equal protection clause violation occurs in the case of schoolchildren.

The parents of schoolchildren in public schools will complain why their children are compelled to receive “age-appropriate” sex education and reproductive health lessons in school as part of the curricula when the kids in private schools are not? 

Is it not that this classification even discriminates them for being poor that the poor children stand to have their right to privacy violated when they grow as adults later as it is a common knowledge nowadays that poor children are the ones studying in public schools? 

This leaves the private schoolchildren assured of good future that they would still be free from violation of their right to privacy when they grow old later.

Again, the right to privacy being referred to here is the right to use or not to use contraceptives, the right to determine how they will determine the number of their children, and the right to practice religious doctrines in the secrecy of their homes or bedrooms.

Additionally, the fact that the right on how to educate their children belongs exclusively to the parents makes the discrimination even worse.

It must be stressed that the Constitution protects the family as “AUTONOMOUS.”  To compel poor women or their poor families to be educated on RH law programs will violate this command to make them autonomous.

The State has the obligation to defend the right of spouses to found a family in accordance with their religious convictions dictated by the Constitution in Section 2(1) of Article XV.  In forcing RH law education on the children of the poor families the State will now be contradicting the Constitution commanding it to violate that right to found the families in accordance with their religious convictions because children are indispensable parts of their respective families.  By enforcing the “age-appropriate” sex and RH education, the State is also committing violations to the equal protection right of poor parents because the private school children are not compelled to receive sex and RH education.

The State is bound to obey the Constitution when it says in Section 2 (2) of Article XIV that it cannot limit the natural rights of parents to rear their children.  By dictating upon the public school children such lessons on sex and RH, the State is in effect limiting the natural rights of the poor parents to rear their children while sparing the rich parents whose children go to private schools.

            And if sex and RH law education being compelled to public school kids were to result in the inculcating of patriotism and nationalism, in fostering love of humanity and respect for human rights, in appreciation of the role of national heroes in the development of the country, in strengthening ethical and spiritual values, in developing moral character and personal discipline, in encouraging critical and creative thinking, in broadening scientific and technological knowledge, and in promoting vocational efficiency as commanded by the Constitution in Section 3 (2) of Article XIV, then it will violate the equal protection rights of private school children who will be deprived because they are exempt from “age-appropriate” sex and RH education.


D.    Males or Husbands vs Females or Wives


Another violation of equal protection clause occurs between husbands or men and wives or women.

It is undisputed, no child can be born without the participation of the men or husbands.

But the wives are being the ones bearing the brunt of all programs of RH law, they being mentioned almost all over the cross-sections of the law.

As if the women are sacrificed to bear the obligation of controlling births while the men are let free under the law, is unfair to them while their men partners are free of obligation when they can be subjected to by vasectomy and spermicide.

Another aspect of man vs woman classification is the fact that while both play equal role in procreation, the man or the husband is violated of his right of conjugal decisions when it is the woman’s decision that will be followed whether to avail of contraceptives or not.


E.     Poor vs Rich


Another painful discriminating classification is the fact that the RH law targets the poor women and leaves out the rich or can-afford women.

The law mentions of targetting the poor listed in National Household Targettg System for Poverty Reduction (NHTS-PR) as the intended beneficiaries of RA 10354.

By doing this, only the poor women are violated of their right to privacy while the rich are exempt.

The poor have rights to privacy interfered with as to whether they will use contraceptives or not and as to whether they exercise religious doctrines before getting to bed while the rich are exempt.
                                             
Another aspect of equal protection right violation occurs in the fact that the poorest of the poor who are also beneficiaries of anti-poverty programs and the fact that the law commands the integration of RH programs into anti-poverty programs.  While the rich cannot be placed in such a weak position to resist RH law programs on contraceptives.

The women of the poorest of the poor are to bear the brunt of violation of or interference to right to privacy because of their inherent weakness while their counterside in the rich side are exempt from right to privacy violation or interference.

This is because there is a clear-and-present danger that compliane with RH programs can be imposed as part of the conditions in the giving of Conditional Cash Transfers (CCTs).

It is not far-fetched that these poor women will not receive their next CCTs if they refused to use contraceptives.  And for the State to investigate whether they used pills or condoms it had to investigate into the shanty homes and bedrooms of the poor.

Another area of violation against the poor’s right to equal protection is when the Department of Health tasked by RA 10345 to integrate RH programs in their regular operations will order all national public hospitals to admit patients who will agree to receive instructions and information on contraceptives and free contraceptives and agree to use them or they will no longer be admitted the next time they come.  The rich women are free and capable to go to private hospitals.

Another area of violation of equal protection clause is in the right to found a family in accordance with religious convictions.

The fact that the poor families are targeted, it means that their right to found their families in accordance with religious convictions are interferred with because of the compulsory schemes available for the State, like CCTs and other anti-poverty programs.   Upon the other hand, the rich families can freely exercise their right to found their families in accordance with their religious convictions.


F.     Objectors Service Providers vs Non-objectors Service Providers


Another violation of equal protection clause occurs between objectors service providers and non-objectors.

Non-objectors rendering pro-bono RH service are only ones allowed to be accredited in a government institution called PhilHealth.

The objectors, the fact that they cannot give pro-bono RH services on conscientious grounds, are now deprived of the right considering that they are Filipinos like the non-objectors and PhilHealth is a government institution.

There is no substantial distinctions between these two groups of service providers, like doctors, nurses, hospitals and clinics, that the conscientious objectors must be deprived of the right to earn from the practice of their professions on patients who are members of PhilHealth.

Whatever germane character this classification may have in relation to the purpose of birth control or the disguised term “promotion of reproductive health” is watered down by the fact that PhilHealth members-patients exercising the right to choose their doctors are collateral or indirect victims.

Will it be revolting to conscience if it were to refuse PhilHealth members patients because the hospital or doctor of their choice are not accredited to PhilHealth due to their religios convictions?  It offends the right to choose doctors.

Moreover, another area of violation of equal protection clause in this classification is that both groups of health service providers have equal rights to practice their profession to earn for themselves but this is violated by classifying the providers doing pro-bono RH services from those who do not on religious grounds.  This is no longer regulation, it is prohibition to practice profession in so far as PhilHealth patients are involved.

The non-objectors are enjoying the non-violation of the right to practice profession while the objectors are punished.


G.    Legitimate Wives, Illegitimate Partners, Single Mothers, Prostitutes


There is also this kind of discrimination in lumping all these classes as one when there are substantial distinctions from each other.  This may be termed as “reverse” equal protection clause violation.

If the benefits of RH program are to be called benefits in the real sense of the word, why will illegitimates and morally-bankrupt prostitutes receive the same as the women who chose to obey the law by marrying legally?

Imagine that under the RH program all of them can avail of free contraceptives and free instructions and information on RH without any distinction from each other.

If the effects of RH program are prejudicial, why will then legit mothers have to bear the same burden being shouldered by the rest?

There will be prejudicial effects if the legitimate wives are compelled to comply with RH programs because they happen to receive Conditional Cash Transfers or benefits given to Persons With Disabilities (PWDs) and they have to comply or they will no longer receive the anti-poverty or pro-PWD programs.

The same is the story if these legit wives are to avail of the services of national public hospitals for treatments other than RH. 

The fact that the DOH is directed by the law to ensure compliance with RH programs, there is a clear-and-present danger that the DOH will take adavantage of its control over national public hospitals to use compliance with RH programs in exchange for availment of the services of these DOH hospitals.

            This is another example of HIDDEN SCHEME OF COMPULSION in this abhorrent evil in RA 10354.




VITIATION OF RIGHT TO RAISE
CHILDREN IN ACCORDANCE
WITH RELIGIOUS TENETS;
BREAKDOWN OF MORALITY
OF FILIPINO POSTERITY


            To stress on this argument, the petitioners remind the Court and the advocates of RH that Our Constitution is founded on the principles of divinity and all laws must have bearing on these principles that are mostly expressed on rules and laws on morality.

            This statement is founded on the Preamble, the genesis of the Constitution, which states:

            We, the sovereign Filipino people, IMPLORING THE AID OF ALMIGHTY GOD, in order to build a just and humane society, and establish a Government that shall embody our ideals and aspirations, promote the common good, concerve and develop our patrimony, and secure to ourselves and OUR POSTERITY, the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.

            This means that every law to be passed must begin with the test of divinity because the Filipino People implore the aid of the Almighty God in order to build a just and humane society.

            In other words, the State is prohibited by the Filipino People from enacting laws that run counter to the principles, dogmas and doctrines of any religion.

            From these principles came the other Constitutional provisions.

That is the reason why each family is vested with the Constitutional right to raise their children to become youths with wholesome physical, moral, spiritual, intellectual and social well-being in accordance with their religous convictions, as part of the right to found their family in accordance with religous rights and as part of the parents’ natural rights to rear their children that cannot be limited by the State.

If that is so, the rights of the poor families led by husbands and wives, are violated if RA 10354 will compel their children in public schools to receive lessons on age-appropriate sex education and RH programs as part of the curricula dictated by the DepEd.

If parents of poor children happen to be religious objectors, for their kids to be compelled to receive those lessons, when the rich kids are exempt from compulsion, their right to found their families and grow their children in accordance with their religious conviction that is their matter of right are gravely violated.

Catholics, for instance, teach their children to practice abstinence from sex until they marry.  Now, if their kids are taught there are available contraceptives for free that they could obtain through fraud or contraceptives they could buy to prevent pregnancy, their kids’ moral fiber is in clear-and-present danger to be loosened because hot adolescents and teenagers will likely try their curiousity to sexual adventures at minor or young ages.

To stress, the State has the obligation to respect the right to found families and grow children in accordance with  religious convictions.  It has also the obligation not to limit the natural rights of parents to rear their children as found in Section 2(2) of Article XIV of the Constitution.

But in implementing RA 10354, it is instead opening the minds of the usually curious and hot young ones to try sex when they are assured they cannot cause unwanted pregnancy.

Additionally, this will further lower the standards of morality in the next generations because a way of life or growing outside the way of religious teachings and teaching about sex education that opens the door to contraceptives will surely result in deterioration, gradual or otherwise, of moral doctrines. 

The virgins among high schoolers will lessen and lessen in number; the basis of marriage will be more on sexual pleasures than divine teachings.

What is worse, the very face of RA 10354 shows that it presumes that sex is a right of everyone, married or not, young or old, paramours or not, prostitutes or not.

With this presumption that is apparent, the law’s only way to arrest the unwanted pregnancies that contribute to population is through massive giving of contraceptives for free and education and instructions on how to use them and on their benefits from using them. 

This presumption is contrary to the doctrine of most religions that the only way is no other but abstinence until marriage.

Moreover, the unprecedent massive scale intended by RA 10354 to flood the country everywhere with condoms, pills, intra-uterine contraceptives, injectables and others will surely cause an overwhelming impact upon the subliminal minds of all women, young and adults, to force the formation of new mores or standards of acceptance of morality in sexual matters.

For example, the level of acceptability of contraceptives has clear-and-present danger of getting to be more and more for animal instincts generations after generations.  The once unacceptable abortions will become more and more acceptable.  Experience of mankind in other countries shows that abortion tolerance has been preceded by contraceptives tolerance.  There has never been a nation that has escaped the rising acceptability of abortions and this will endanger even the Constitutional or statutory prohibitions, de facto or de jure, the Congress may spearhead or the people through initiative may cry for constitutional amendments to remove that provision that protects the life of the unborn from conception.

This is also contrary to Section 3(2) of Article XIV of the Constitution which compels the State to strengthen ethical and spiritual values, develop moral character and personal discipline.

            In relation to religious tenets, RH law also violates Section 13 of Article II of the Constitution that commands the State to “promote ad protect...the (youth’s)  moral, spiritual...well-being.“


VIOLATION TO
AUTONOMY
OF THE FAMILIES


            In Section 12 of Article II of the Constitution, the families are declared as AUTONOMOUS.

            To be clear, let this be restated: “The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic AUTONOMOUS social institutions.”

            So how can the families now be autonomous if they were requried through many ways as discussed above to receive RH instructions and information that include the giving of free contraceptives.

This also violates the Constitutional autonomy of the families.


RIGHT TO HUMAN
DIGNITY VIOLATED


            If the unborn implanted or ready for implantation into the uterous have human dignity that cannot be violated, it cannot be said that the unborn in the fertilization stage has no human dignity because there is no authority that supports.

            And in the light of the fact that the pro-RH has authorities they can cite to support their position that conception occurs in implantation of the fertilized ovum in the uterous and the fact that anti-RH has authorities they can cite to support that conception occurs in fertilization and an old theory that says the same as discussed in the right of privacy discussions, it can reasonably be said that there is a deadlock of sort.

            But what is material now is nobody is sure which is correct between the words of one group of authorities and the words of another group of authorities.

            And in the light further of the fact that it is only at the meeting of the sperm and the egg that sparks fertilization and it is only the first real opportunity that a human being like Jose Rizal may be born into a human being, it necessarily follows that it is reasonable to give the benefit of the doubt to the unborn undergoing fertilization that regard for human dignity.

            Now looking at women, considering that the poor ones are affected by RH program implementations, they stand to be ostracized as “sluts”, “prostitutes” or other words importing women of ill repute for getting free condoms and pills if only to have sex at their pleasure because they now have no pregnancy to fear because of the contraceptives that come to them for free from the taxes provided more by the high-income families that include religious objectors.

            This therefore destroys by substantial degree the dignity of poor women who would use, by compulsion or otherwise, contraceptives.

            The taxpayers, particularly those belonging to the rich sectors, will complain that they give money in order for poor women to enjoy pleasurable sex, or prostitutes to ply her trade, or highly-sexually active wives to enjoy sex with men other than their husbands.

            No amount of denial or explanation or argument can say that the dignity of the honest and loyal wives will not be assaulted under this scheme of things.

            To keep RA 10354 is therefore to authorize torture of the mind and an official endorsement of statutory terrorism.


RIGHT OF FREEDOM OF
EXPRESSION VIOLATED


            There is no doubt that RA 10354 violates freedom of expression.

This law provides for punishment of imprisonment to those it deemed to have expressed opinions about RH but deemed incorrect by this law. 

It also imprisons the whitholding of RH information deemed as incorrect by conscientious objectors service providers.

These penal provisions violate Section 4 of Article III of the 1987 Constitution because they abridge the right to freedom of expression.

In fact the instant petitioners are right now vigourously arguing that RH law information are wrong, the reason they are now challenging the same before this Court.

There are service providers who are devout Catholics that will always state contrary opinions about the RH program, particularly on the assertion that contraceptives are immortal sin to the Catholics and not medically safe.   

These groups stand to be imprisoned for expressing contrary opinions and for refusing to refer RH patients to another service providers not objecting on religious or conscientious grounds.

            This is another deception to hide the real intention of RA 10354.

VIOLATION AGAINST THE
RIGHT TO EXERCISE RELIGION


            This law also violates the right of Catholic service providers, doctors and nurses as well as hospitals, to exercise freedom of religion, particularly in observing the doctrine of life that forbids contraceptives.

            The violation occurs when this law requires them to refer patients availing RH services to another service provider and if they refuse in the free exercise of their Catholic faith they are punished with imprisonment.

            The violation also occurs when they express opinions contrary to RH opinions in the exercise of their Catholic faiths because doing so will risk them to imprisonment as well.

            The non-giving of accreditation to service providers who do not give pro bono services on religious grounds as against non-objectors also violates Section 5 of Article III of the Constitution because that is no less than RELIGIOUS TEST.

            Section 5 says, “...No relegious test shall be required for the exercise of civil or political rights.” 

            The right to practice profession is a civil right, a property right as well.


VIOLATION OF THE RIGHT
TO PRACTICE PROFESSION


            Service providers who are religous objectors, as a natural person or as a juridical person, are violated of their right to prosecute their profession with the implementation of RA 10354.

            This is so because they are precluded by law to practice their professions if they are not accredited to the PhilHealth.

            There are many patients in other kinds of health issues who are reliant on PhilHealth to pay their bills and these patients are exercising their right to choose their doctors because of the doctor-patient privilege. 

            Because doctors who are religous objectors will never ever give pro bono RH services, they are barred by law from getting accreditation with the PhilHealth.

            This therefore violate their right to practice profession in so far as patients using PhilHealth to pay for their bills.

            This prohibition by the law to religious objectors service providers is unconstitutional because the right to practice profession is within the penumbra of rights where State unreasonable intrusion is forbidden.

            This prohibition is unreasonable because it does not pertain to the fitness of the religious objectors service providers to practice profession in health issues outside reproductive health.

            The nearest Constitutional provision relating to profession practice are Section 14 of Article XII of the Constitution and Section 5 (3) of Article XIV of the Constitution.

            Section 14 of Article XII states: “The sustained development of a reservoir of national talents consisting of Filipino scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled workers and craftsmen in all fields shall be promoted by the State.  The State shall encourage appropriate technology and regulate its transfer for the national benefit.  The practice of all professions in the Philipines shall be limited to Filipino citizens, save in cases prescribed by law.”


RIGHT TO EDUCATION
BY POOR FAMILIES FOR
THEIR KIDS VIOLATED


            There are sufficient number of provisions in the Constitution that forbid the State from intruding in so far as the education of the children of each family is concerned.

            The import of the declaration of invocation of the Almighty God to build a just and humane society in the beginning of the Constitution must be followed in establishing a rule or policy on education: that all lessons must conform to the rules, commandments and teaching of the Almighty.

            For sure, no one can say that RH and sex education complies with the people’s invocation of the Almighty God to build a just and humane society.

            The first provision is found in Section 12 of Article II of the Constitution, when the State is ordered to recognize “the sanctity of family life”, “protect and strengthen the family as a basic AUTONOMOUS social institution.”

            This autonomy gives the families Constitutional independence in making parents decide what moral lessons its should give to their kids.

This autonomy also forbids the State from compelling the families’ children to receive education on matters outside what are specifically provided in the Constitution and RH and sex education is not among them.

Then, the third part of Section 12 commands the State to support—not to regulate or interfere with—the natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of MORAL CHARACTER.

Next is Section 13 of Article II that proclaims that the State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being.   Nowhere in this enumeration can fit in sex and RH education.

Then, in the same Section 13, the State is commanded to “inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.”  Nowhere in this can fit in sex and RH education.

Next is Section 2 (2) of Article XIV that commands the State to establish and maintain a system of free public education in the elementary and high school levels.  The same also forbids the State from limiting the natural rights of parents to rear their children, even if elementary education is compulsory for all children of school age.  This order not to limit includes the prohibition to give public school children sex and RH education as part of the curriculla in elementary and secondary.

Then is Section 3 (2) that states: “They shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline, encourage critical and creative thinking, broaden scientific and technological knowledge, and promote vocational efficiency.”
Nowhere in this can fit in sex and RH education.

Hence, it is clear that RA 10354 violates the INALIENABLE rights of the parents to rear their children through education of their choice.


RIGHT TO
MARRIAGE
VIOLATED


            The State, after marriage laws have been codified, as represented by the Family Code, cannot violate the right to marriage.

            No less than Section 2 of Article XV proclaims that marriage is INVIOLABLE.

            For RA 10354 to require seminars on RH law contraceptives is to violate Section 2, which reads:

            Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.

            Given the magnitude of objections to RH programs and policies, how can now it be said that the State protects marriage?

            There is none to justify that RA 10354 protects marriage.

            Rather, the compulsion for marrying couples to undergo seminars on RH law will be a violation to this Constitutional provision.

            Moreover, to the contrary, it promotes the breakdown of marriage among spouses for many of them will quarel over whether to avail of RH benefits or not, or simply a dispute resulting from infidelity encouraged by the pregnancy-proof illicit relationship. 

Given the high rate nowadays of couples seeking the termination of marriage bonds by whatever means, obtaining divorce outside the country or otherwise, this RH thing will add up to the problem instead of solutions.

            Of course, the Constitution also includes as inviolable the marriage traditions and rights of the Indigenous Peoples.  The Family Code respects it from marriage license requirement.

            And then it violates the Family Code exemptions to couples who have lived-in relationship for at least five (5) years and they are not incompetent to marry each other.

            The live-in lovers who have acquired these long before the coming of RA 10354 will be violated of their vested rights to marry without marriage license.

            Another grotesque situation is in those Filipino couples who marry outside the Philippines.  The doctrine of lex loces celebraciones will be running in conflict with Section 15 of RA 10354.

Marriage celebrated elsewhere is valid everywhere.  Filipino couples who celebrated marriage outside the Philippines under the laws of the foregin countries will be running afound with RA 10354.

Awkward!

           

DESTRUCTION OR
DE-ESTABLISHMENT
OF CATHOLIC FAITH


In the entirety, because of the fact that the law commands the procurement of artificial contraceptives to be given for free is more than an insult to the Catholic religion that has been repeatedly complaining that doing the same amounts to an assault against the religion.

There is no doubt. It will be an affront and assault on the Catholic religion.

The Constitutional prohibition against establishment of religion also goes with the prohibition against de-establishment or destruction of religion.

The State destroys the Catholic by officially promoting the doing of acts that are blatantly against the doctrine of life of the Catholics and the people who embrace this religion. 

Actually, it does not offend only the Catholic, it also does the same on the Islam religion exercised by Filipino Muslims.

It is a doctrine of Islam that its men can marry up to four wives, divorce any or all of the wives and marry anew.

How then would this religious freedom be consistent with the unstated but clear objective of RH Law in reducing the country’s population, considering that with four wives alone and with only two children per wife would produce a number of children that is obviously more than the law imagines?

   It really offends the senses of the Catholics like the petitioners to see the State officially endorsing acts that are prohibited by the Catholic.

The fact that the law never compels the Catholics to avail of the artificial contraceptives never removes the assault on the Catholic religion.



The Strict Scrutiny

 .

            Having clearly discussed above how Republic Act 10354 operates and how it tramples substantive Constitutional rights that are inalienable—including the right to privacy, the  right to religion, the right to expression, the right to profession, the right to human dignity, the natural right of the parents over their children, the right of spouses to found a family in accordance with their religious convictions, the right of the family to be autonomous of the State, the right to practice profession, the right to education, the right to equal protection clause, the right to marriage, etc—there is no issue that RA 10354 encompasses overly broad constitutional rights to violate.

            With this, it can now facially be seen that RA 10354 is void for vaguenes and being overreaching.

            Neither there is issue that the fact of the rights that stand to be alienated are inalienable and inherent to the citizens.

There is also no issue that the expenses that will be taken from the taxes are enormous, in tens of billions of pesos a year.   It is the basic right of taxpayers to demand that taxes be spent wisely, thriftly, reasonably, and for governmental actions that do not impair inalienable rights.
                                                                                                   
            Ergo, it is without dispute that the rights involved and the rights that are prejudiced are FUNDAMENTAL in the sense that they are inalianable textually or otherwise and natural that are higher even than the Constitutional law.

            First of these unalienable and natural right that is older than the Philippines or its Constitutions is the Right to Privacy.

            It is aptly explained above how “educating the women about contraceptives” and “making free contraceptives available to these women” violate right to privacy.

            To reiterate, these rights are fundamental.

            And if the rights are fundamental, the challenged statute as RA 10354 must undergo strict scrutiny.

            Other than the fact that the rights involved are fundamental, the challenged law will fix the irreversible posterity of the Filipinos as explained above and it will define a new set of low standards of morality, high standards of acceptability for acts that are now unacceptable, lower standards of protection for the realm of fundamental and unalienable rights, etc.

            In other words, RA 10354 is a landmark and monumental piece of legislation.  It defines what is in store for tomorrrow for all the Filipinos.

             To substantiate the insistence that RA 10354 must undergo strict scrutiny test, Footnote No. 23 in the case of League of Cities vs Comelec, G.R. Nos. 176951, 177499 and 178056, November 18, 2008, is being cited to wit:

            The rational basis test is the minimum level of scrutiny that all government actions challenged under the equal protection clause must meet.   The strict scrutiny test is used in discriminations based on race or those which result in violations of fundamental rights. Under the strict scrutiny test, to be valid the classification must promote a compelling state interest. The intermediate scrutiny test is used in discriminations based on gender or illegitimacy of children. Under the intermediate scrutiny test, the classification must be substantially related to an important government objective. Laws not subject to the strict or intermediate scrutiny test are evaluated under the rational basis test, which is the easiest test to satisfy since the classification must only show a rational relationship to a legitimate government purpose.  See Erwin Chemerinsky, Constitutional Law, Principles and Policies, 2nd Edition, pp. 645-646.


            The strict scrutiny test has its beginning from the popular Footnote Four of the US Supreme Court decision in United States vs Carolene Products Co., 304 US 144, decided on April 25, 1938.

            This Footnote Four reads:

            There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U.S. 359, 369-370; Lovell v. Griffin, 303 U.S. 444, 452.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536; Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U.S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 369; Fiske v. Kansas, 274 U.S. 380; Whitney v. California, 274 U.S. 357, 373-378; Herndon v. Lowry, 301 U.S. 242; and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national, Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S. 404; Farrington v. Tokushige, 273 U.S. 484, or racial minorities, Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina v. Barnwell Bros., 303 U.S. 177, 184, n. 2, and cases cited.


            In the instant case, as discussed above, there is no dispute that there are specific prohibitions in the Constitution against making laws that intervene into the discussed rights above.

            The Supreme Court of the Philippines has been relying on the decisions of the United States of America because the Constitution of the Philippines and the USA are almost the same or similar to each other.

            The Supreme Court adopted the New York Times vs Sullivan (376 US 254) ruling in applying the actual malice test for libel if the complainant is a public officer.

            In constitutional issues on legislations or statutes, the Philippine Supreme Court has adopted US decisions, including but not limited to void for vagueness rule, the balancing-of-interest test, the clear-and-present-danger test, etc.

            Ergo, there is now no issue that the strict scrutiny test be appllied in this present challenge.

            And if it is so, then the State has the burden of proof to prove that RA 10354 is constitutional.

            In order to pass the strict scrutiny test, the statute must satisfy three tests, as culled from Wikepedia at this link http://en.wikipedia.org/wiki/Strict_scrutiny, to wit:

1.      It must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

2.      The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.

3.      The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this "least restrictive means" requirement part of being narrowly tailored, though the Court generally evaluates it separately.


            To this test, as argued below, the State miserably failed to discharge the burden to prove that RA 10354 is a valid legislation.


No compelling governmental interest

           
            What really are the interests of the Congress and the President in enacting Republic Act 10354?

There is no clear and explicit statement to this effect but it is very clear from the language used by the statute that the interest is to CONTROL BIRTH RATES AMONGST THE POOR, sparing the rich families.

It can be seen from the very language of RA 10354 that it commands that the State and its political subdivisions, the local government units and the Autonomous Region for Muslim Mindanao (ARMM), must undertake an EXTRAORDINARILY MASSIVE ACTION of EDUCATING LARGELY THE POOR FILIPINOS ABOUT ARTIFICIAL CONTRACEPTIVES, and then MASSIVELY PURCHASE CONTRACEPTIVE PILLS, DEVICES AND INJECTABLES IN THE AMOUNTS THAT CAN EASILY  SURPASS TWENTY (20) BILLION PESOS EVERY YEAR almost equal to the dreaded controversial PDAF pork barrel.

While the words employed were couched in a language that speaks of voluntariness that the beneficiaries can opt out, RA 10354 also uses words that are deceptive in order to hide the compulsory schemes like the conscientious providers being compelled to refer RH patients to other providers as well as integration of RH programs as among the conditions in giving Conditional Cash Transfers (CCTs), etc, and in order to achieve the agenda of making all if not a big majority of the poor agree with RA 10354 to use CONTRACEPTIVES AS THE ONLY MEANS FOR THE COUPLES TO SPACE THE BIRTHS OF THEIR CHILDREN IF THEY DESIRE.

With the massive educational campaign that is programmed in RA 10354 and the sufficient degree of reputation that the State has in the poor who are the only intended beneficiaries who can easily believe in it or who can easily be compelled and intimidated due to inherent weakness, there is no doubt that the State can achieve the hidden purpose of cutting down birth rates amongs the poor.

By the way, is cutting down birth rates amongst the poor a compelling State interest?

How many decades have passed since the terms “population explosion” and “family planning” were heard during the regime of then dictator Ferdinand Edralin Marcos who also spent huge sums to provide free contraceptives to the Filipinos in 1970s? 

This can be taken of judicial notice by the Supreme Court that from the population of 36,684,486 in 1970, there were 92,095,905 Filipinos recorded in the year 2010.

 Did the Marcos regime achieve anything substantial and tangible?  No!  Proofs are the data from the NSCB as discussed above.  From 1970 to 1980, the population jumped by about 32% to register 48,038,460.   It then jumped by about 26% to grow to 60,559,116 in 1990.  It then grew by about 27% to increase to 76,504,077 in 2000.   It grew by about 20% to jump to 92,095,905.

Further, the Supreme Court can take judicial notice that since Marcos time up to today, contraceptives have been made available all over the country through barangay health centers.  Four decades have passed by since then yet there has been no substantial gain that can be noticed from the Family Planning program of the government.

The Supreme Court can take judicial notice from the data of the government-owned NSCB and infer from there that there has been nothing substantial that has been achieved if population reduction as an objective is considered.

The Supreme Court can also take judicial notice of the official statements or literature posted in NSCB’s website that talks about natural progression of population to reach its demographic winter: which means that the birth rate will close the gap at 1 is to 1, or zero birth rate, or one child is born for every one person going dead.

The point here is that despite the absence of RA 10354 for many decades, and even in the last ten (10) years, from 2003 to 2013, there has been nothing noticed as a compelling need to reduce the population or, to follow the colloquial terms used by RA 10354 advocates, to educate the poor about artificial contraceptives: that they have options available for them for free if they wish to avail of it for the purpose of “birth spacing” and for these poor to be able to raise their children humanely just because there were fewer mouths to feed in each family.

It cannot be said that what is compelling now only showed up today.  The proponents of the so-called “RH Law” have never submitted any demonstrable proof to show that while RH Law was not compelling in the last ten (10) years and circumstances have changed that it is now compelling.

Certainly, there is nothing that is capable of demonstration to serve as a judicial notice for the Supreme Court to give credence to the postures of the RH Law proponents that THERE IS A CLEAR AND PRESENT DANGER IF RH LAW IS NOT AUTHORIZED.

How urgent it is to save our State from an imagined national disaster or imminent national security danger that only the poor is being targeted by RA 10354?  That national disaster or national security danger has never been cited, and not identified either.

Will China succeed in its invasion in its bid to get Spratlys Islands if the poor amongst us are not educated about contraceptives and not provided free access to contraceptives?  Obviously, this is illogical to answer affirmatively.

Will the giving of education about contraceptives and providing free contracepties be as compelling as addressing poverty by means of increasing the amounts and coverage of Conditional Cash Transfers (CCTs) so that the poorest of the poor can have better chance at rising from the grave of destitution?  Obviously, not.

Will the giving of education about contraceptives and providing free contraceptives be as compelling as the need to give free daily foods for all public elementary pupils and high school students in order to achieve the best academic performance by the kids.

Will the making tuitions and board and lodging expenses free in all State colleges and universities be less compelling than giving education to the poor about contraceptives and providing free contraceptives?  Obviously, not. Note that the undersigned counsel came from a poor family but he was able to finish BS Civil Engineering at Mindano State University – Marawi Campus because of free tuition coupled with board and lodging stipend as well as allowances for travel and books.

Will RA 10354 be more compelling than rebulding Bohol and Cebu from the killer earthquake?  Obviously, not.

Will RA 10354 be more compelling than rebuilding Zamboanga City ravaged by war?  Obviously, not.

Will RA 10354 be more compelling than rebuilding the lives and infrastructures wrought to complete devastation by Typhoon Yolanda in Tacloban City and elsewhere?  Obviously, not.

Will RA 10354 be more compelling than eradicating the Pork Barrel of the congressmen and senators as well as the Executive when the people have spoken against it?  Obviously, not.

The wisdom of the Congress in enacting laws are usually not to be inquired to by the reviewing court. 

But it is different when what are at stake are fundamental rights that are being prohibited by the Constitution to be touched by the State, or when the law is making a distinction of poverty or race or even just making a suspect classification.

To the contrary, the justifications that have been put forward by the advocates of RH law are non sequitor, and they include: (a) that the high birth rate among the poor families is the curse that the State and the nation cannot achieve progress; (b) that the high birth rate amongst the poor families are causes of social, economic and political problems;  (c) that reducing birth rates amongst the poor will bring progress to the country; and (d) that reducing birth rates amongst the poor will enable the national government to have efficient management for the economic success of the State.

Will substantial damage be caused on the nation if RH Law is set aside? No, obviously.

Now, the Congress and the Office of the President have not presented any evidence that population is inversely proportional to progress.

All that they have pronounced thus far are motherhood statements saying that big number of children caused poverty to a family.  This, aside from being unsubstantiated and non sequitor, is a fallacy.

If the mother or the father has no work or means to earn income, it is poverty. 

Thus, all that the State needs is to provide work for the father in order to feed even six (6) or eight (8) children.  Feed them and they will live for a day, but teach them and support them how to start and you will feed them for a lifetime. 

The art and philosophy of progress have always remained the same: Give a man a fish and he will live for a day; but teach him how to fish and you will feed him for a lifetime.

There has been no proof or experience showing that the solution to poverty is to cut down on population.

If only to stress, let it be taken judicial notice that there is no overpopulation in the country, only concentration of people in urban centers.  So why not use police power instead to bring more people from urban centers to remote areas, lend them money without interest payable in 20 years to start an economic stimulus, give them tax breaks for 20 years, form cooperatives in public hospitals, transportation, public markets, and manufacturing and farming industries like the successful electric coopeartives, etc.

And to better the chances of families like this, all the State needs is to provide free foods in all public schools in order to better the learning absorption of the poor men’s children in order for them to increase their academic ability to pass all scholarship tests for college degrees.  Give them education that matters and you will feed them for a lifetime. Give them a birth-control pill and it will not make them eat even for a day.

Now, is the amount of at least ₱20 billion a year that will be spent in rolling down all the programs of RA 10354 justified by any compelling need therefor? 

Contraceptives are in the nature of programs whose dispensation to the beneficiaries cannot be checked, like the alleged programs that have been claimed as the beneficiaries of the Pork Barrels of the legislators.   That is prone to liquidation of expenses by submitting names from telephone directories and list of Bar Exams or CPA Board Exams successful examinees.  While the most urgent problem now of the Aquino administration is how to rebuild Yolanda-destroyed communities and to fend off dissents against pork barrels or discretionary funds, this law, RA 10354 adds to the problem.

The families intended as beneficiaries of RA 10354 will not die if RA 10354 is not implemented. 

Babies will continue to be born in the same rates as ten (10) years ago and the country will not be put in disarray for even ten (10) years more as proven by the Marcos Family Planning experience.   The proponents of RH law who claim that contraceptives shall be optional has never demonstrated how the lack of police power can result in substantial number of poor women embracing contraceptives.

Actually, the fact that RA 10354 will only educate the poor families about contraceptives and will tell them contraceptives are available to them for free and that they will not be compelled to use contraceptives is in itself a demonstration of lack of urgency in making the use of contraceptives as emergency matters. 

Otherwise, the State will use its compulsive police power. 

RH law as reiterated by the proponents are respecting the choices of the intended beneficiaries and the reproductive health service providers are just the ones being compelled to serve and educate about contraceptives: a proof that there is no compelling need for this law.

During the oral argument when Atty. Luisito V. Liban expounded on the grievance about students and pupils being taught on matters that are doctrinally evil to the Catholics, it was made clear no less than by Chief Justice Ma. Lourdes Punzalan Aranal-Sereno that only those in the public schools are required under the law. 

Even without talking about the violation to the equal protection clause that only public schools children are compelled to be educated, the fact remains that it does not make it compulsory to private schools kids and this is another proof of lack of compelling State interest for the State to use its police power of compulsion to achieve the purpose.

Absent any compelling end, RA 10354 must be struck down, now.



The law or the policy
within the law Is not
narrowly tailored


            An examination of RA 10354 shows its policies for the implementation thereof is unparalleled and so massive in degree and so expensive in terms of the budget that it needs at least ₱20 billion a year to implement.

It involves all the local government units and the ARMM for all of them to take part in substantial degree, keeping an army of barangay health workers (BHWs) that they need to fund from the usually-scarce Internal Revenue Allotment (IRA) among majority LGUs. 

It involves all hospitals and clinic catering to maternity matters.  It includes all doctors, nurses and midwives who are engaged in the profession of giving and treating maternity patients.

It involves all the public schools to educate pupils and students on age-appropriate sex and contraceptive education.

It involves several departments of the Office of the President that are already burdened with their own mandates, including but not limited to the Department of Health, the Department of Education, the Department of the Interior and Local Governments, the Food and Drug Administration, etc.

The matter of educating the constituents on contraceptives alone is so expansive.  Then add the matters on consultations, prescription, administration of contraceptives and surgical operations to implant intra-uterine or other internally-embedded contraceptives.

Then there is a massive mass media campaign to be dealt with by the Philippine Information Agency or other government media networks.

Granting without admitting there is a compelling need to educate the Filipino families on contraceptives and to give free contraceptives for their use if they agree to use them, what then are the essential aspects of the law for which the policy and the law must be narrowly tailored?

To say that certain aspects are essential it means that these are indispensable to address that compelling interest of the State.

Because it has been shown that there is no compelling State interest, there is nothing to narrow down for.

Nevertheless, the fact that the policy employed in advancing its purpose of birth spacing among the poor is so massive in nature and character makes this piece of legislation fail the test of strict scrutiny.

The fact that the policy does not narrow down to use compulsion will only leave the programs of RA 10354 a white elephant.  For sure, without using the compulsory police power will only render this RA 10354 a dead or useless law, thereby making the policy ineffective to achieve the essential aspects of this statute.

Have the lawmakers who supported RA 10354 ever thought a possibility that nobody or about only 15% would get free contraceptives after getting educated?

Or, have they thought that once RA 10354 is implemented all or majority will bite the dangled free contraceptives?

In relation to the Catholic faithful, the policy to be used does not narrow down to be tailored to avoid clash with the Zone of the Church.  In fact, the policies sought to be implemented frayed into the dangerous grounds that belong to the Church.

The matter about founding a good family with good children is a zone that belongs to the Church to which the families believed in.

One more essential aspect is about the standards as limitations to what kind and character of the contraceptives, pills, injectables and devices, that should be allowed by RA 10354.

In the standard laid down by law to determine what kinds of contraceptives are allowed to be provided to the beneficiaries for free, it sets the minimum as those contraceptives that do not prevent implantation of the FERTILIZED ovum.

As discussed above, there is even a compelling need to reset the minimum standards of contraceptives to be those that do not affect or kill fertilization.

It is better to keep the status quo that has been proven not bad for over a century than to tread into an unchartered territory.

The means employed is
not the least restrictive


Now, what is more telling of betrayal, the means employed is not the least restrictive.

Come to think of it: (a) massively educating the poor women on contraceptives and the use thereof that is free for all;  (b) massively purchase contraceptives to be supplied to all barangay health clinics and hospitals all over the country;  and (c) employing schemes that have the effect of compulsion on the weak families, like integration of RH programs into Conditional Cash Transfers (CCTs), admission to public hospitals, availment of programs for the PWDs, imprisoning objectors who speak against RH myth, imprisoning objectors who do no refer RH patients to another service provider, non-accreditation to PhilHealth business of service providers not rendering pro-bono RH services, requiring compliance with seminars on RH by withholding marriage license for refusal, including RH lesson in the curricula in public schools to be taught forcibly on the poor men’s children, etc.

            Now, to the contrary, there exists one that is the LEAST RESTRICTIVE and the LEAST EXPENSIVE.

            This one is the massive education and promotion of natural family planning and the teaching of ABSTINENCE AS THE BEST AND THE MOST SACRED DEFENSE against unwanted pregnancies.
           
            Bombarding all the television stations, all the radio stations, all newspapers, all websites and utilizing all kinds of media available will spell a substantial difference and it is done without offending the religous, the athiests, and the indigenous peoples.

            These means are least restrictive but the most effective.

            In addition, the centuries-old of proven effectivity and efficiency of religion- or divine-based moral teachings and laws cannot be set aside.

            The world that is today, where discrimination wall amongst races have been substantially torn down, where level of amity among nations and their respective peoples have soared to dramatic heights, how else we can say: WHO CAN ARGUE WITH SUCCESS?

SUBSTANTIVE
DUE PROCESS
TEST


            In this test, it is simple.

            Test the purpose of the law if it is lawful.

            Thereafter, test the means employed if it is lawful.

            In short, the rule is: LAWFUL END, LAWFUL MEANS.

            In the Philippine jurisdiction, the test for the end is whether or not it serves the common good.

            Having said these, let us ask: IS THE PURPOSE OF CONTROLLING BIRTH A LAWFUL END?

            No, because the Constitution does not authorize the State to do such a thing and it expressly reserves birth decisions in the families or couples themselves.

            Take note that the Constitution grants autonomy to the families against interference by the State and forbids the state to limit the natural rights and duties of the parents in the rearing of their children.  

The most that the State can do is to support the families, nothing more.

On matters of education, the Constitution limits the same to what are stated there and there is no justification, no matter how long the imagination is stretched, to say that RH and sex education are included among those mandated by the Basic Law to be given as education of the children.

Moreover, the purpose is only targetting the poor and sparing the rich. This being violative of the equal protection clause makes it also unlawful to control births.

Even if the petitioners concede that the purpose is only to establish “reproductive health rights” and enhance them in order to achieve informed women, poor women at that, about contraceptives and these being free for their taking, this can never be lawful by the test of whether it collides with other laws and Constitutional provisions.

Actually, the devious schemes discovered by the petitioners betray the real purpose: BIRTH CONTROL.

            Now, let the means employed be inquired into.

            There is no logic that the end, assuming to be lawful, can support a theory that the end is substantially advanced by means of educating the poor women about contraceptives options and telling them they can get stocks of pills or condoms or anything else for free from health centers and hospitals and masquerading that these are on voluntary basis for the beneficiaries-women.

            Considering the basic sexual instincts of men and women, when they get hot on bed all perversions come and all reservations go out the window.  They will race to get to heaven than putting an intermission number that will only stop them from coming.  So that who else will get condoms?  Who else will take pills on bed?  If they use morning-after pill, it is taken after the sexual intercourse so that there is still danger that fertilization has already occurred and occurring when the pill is taken, and if the naughty sperm and egg survive into a zygote, it will likely end up a more unwanted child: tainted with physical or mental defects.

            With this, it is impossible to occur that the means employed will substantially advance the end.

            Additionaly, means can never be lawful if it tramples on other rights and faiths.  As discussed above, it is very clear that the means employed strayed into the zone of privacy and the zone of religion, among others.

To say otherwise, the means employed by the law in achieving its end, reduction in population or the achievement of responsible parenthood and of desired reproductive health, is oppressive and does not substantially advance the end.

Giving free artificial contraceptives is oppressive because it offends the Catholic senses, no matter the fact that it is on a voluntary basis.

It will also make many Catholic faithful who may have been duped or convinced to avail of artificial contraceptives that are loathed at by the Catholic religion.

It will therefore diminish the respect and belief of many Catholics to the religion.

It is not an offense for private persons or other religions to recruit the Catholics into other religions.

But it is an offense against the Constitution’s injunction on the separation of the Church from the State for the State to officially do those acts that are contrary to the doctrine of life by the Catholic.

Hence, it is clear that the same means of giving free artificial contraceptives will oppress the Catholics and assault the Catholic religion.

But more importantly, the means employed will actually not advance the purposes of the law.

This is because the government cannot be assured that when the couples go to bed the couples will use condoms and other contraceptive drugs or devices or instruments they availed from the government.

When carried away by passions for love and sex, the couples cannot be expected to say, “Teka, isusuot mo muna ang condom (Wait, wear your condom first).  Teka, nakainom ka ba ng pills? (Wait, have you already taken your pills?)”

According to Senator Aquilino “Koko” Pimentel III, better ways to achieve responsible parenthood and reproductive health are to build more hospitals instead of buying artificial contraceptives, provide health facilities to the citizens even to remote areas, equip schools with educational curriculum on health, particularly on what foods are healthy and on how to grow more vegetables for family consumption, educate the children on reproductive systems focusing on how these systems work and that the curriculum should be age-appropriate as well as the value of abstinence in marriage and the sacredness of sex among married couples, and the like.

Another better way that is not compulsive is the massive education program on natural contraception, including inculcating the Billings Ovulation Method.

The unconstitutionality is similar to what was expressed by the State through the Supreme Court in a “carabao” case officially named “Ynot vs Intermediate Appellate Court”[1].

In that Ynot case, a law was struck down because the means employed cannot substantially advance to achieve the purpose of the law. 

The High Court said in this Ynot case that to prohibit the transport of carabaos from one province to another cannot achieve the purpose of preserving carabaos because slaughtering carabaos first before transporting them can be done.

This is revolting in the face of the fact that there are better means available and that the State can rely on the other modes to achieve better results without offending the Catholic and without offending privacy.

One better means is conducting massive educational or information campaign about the importance of responsible parenthood and that being responsible can be achieved by natural family planning methods, including the proven-effective Billings Ovulation Method.

The massive information dissemination shall be made mandatory in order to ensure 100% absorption by the citizens.

The massive information dissemination can promote the culture of practicing abstinence so that fewer and more quality children can be born out of them to a level that can be managed by their income.

The massive and frequent flow of information will be implanted into the subliminal minds of the people, including the poor, and that will be more effective than all medically-concocted contraceptives.

This campaign can be done by incorporating reproductive health care and responsible parenthood through natural methods as subjects in all levels in schools.

The funds that will be used by the law for buying artificial contraceptives can be used instead in daily five-time-or-more radio and television commercials and advertisements through online and other media, and the like, and feed the poor schoolchildren everyday.

The suggested means is not oppressive and not discriminatory to the poor and the Catholics or Muslims who are allowed to take four wives or divorce some or all and take new wives.

At the same time, the law amounts to constructive violation of the privacy of the couples.

For matters that affect privacy and personal decisions, the State as a rule is not authorized to interfere with by means of a law. 

The State is not allowed to dictate on the couples as to how they will bring up their families, including those matters of the number of children and the like.

All the State can do is to define what acts it will prohibit, define the policies on certain conducts and provide sanctions for the doing of those acts or conducts.

The State cannot invade into the privacy of couples on their beds.

The State cannot dictate on how they conduct their lovemaking, how they enjoy their most intimate moments, and how they celebrate to the most they can to satisfy their desire for heavenly joy. 

Combined with love, sex becomes the bedrock of the strength needed to keep the young family staying together and this would be enough to keep them together until their senior years when all lust would be gone and all they would have to stick to each other would only be the love for their children and the strong desire not to break up for the children, for family, and for honor.

If there is something that the State may be allowed to do if it desires to have a quality family, that is truly in the essence of what responsible parenthood and reproductive health should be, it is only doing such acts that will enlighten and galvanize in the minds of the citizens in a scale massive enough to form a good culture of high moral standards, that in the process will place back the consciousness on the value of keeping the family together.

It is therefore awkward for the State to teach the mothers and the fathers how to enjoy sex by the use of condoms, pills, etc.

Stated in another way, it cannot be seen how the law would be effective in achieving its stated and unstated purposes.

It practicality dictates that many of the Catholics will not avail of the free artificial contraceptives on the ground of religion which is allowed by the law, then how can the State achieve the unstated purpose of lesser number of children each family?

The State is therefore like prescribing a solution yet allowing the people to opt out or not to follow the prescribed solution.

If that is so, how can the ends be advanced substantially?


RA 10354 IS
OPPRESSIVE
TO TAXPAYERS

This law also constitutes a situation like unjust compensation to the taxpayers because a part of the taxes they paid are not giving back the equivalent value of government service.  

Imagine that the persons who would avail of contraceptives to enjoy the worldly desires are to use the contraceptives paid for by others, the taxpayers. 

Is this enjoyment by others constituting  public purpose to justify as a compensation to the taxpayers for a part of the monies they paid to the government as taxes?

It is also revolting to think that some people would pay and be compelled to contribute in the form of taxes so that others would enjoy the worldly satisfactions for sex.



The Prayer




            WHEREFORE, it is respectfully prayed that the challenged law, Republic Act 10354, be declared VOID for being unconstitutional.

RENTA PE CAUSING SABARRE CASTRO & ASSOCIATES
Unit 1, 2368 JB Roxas St. corner Leon Guinto St., Malate, Manila
Emails: totocausing@yahoo.com, berteni.causing@gmail.com; Telephone No.: +632-3105521


By:

BERTENI CATALUÑA CAUSING
IBP No. 876498 / Manila IV / 10-01-2013
PTR No. 1435314 / Manila / 10-01-2013
Roll No. 60944 / MCLE No. IV -0007338 / 08-10-2012

Cc:

OFFICE OF THE PRESIDENT (OP),
OFFICE OF THE EXECUTIVE SECRETARY (OES),
Malacañang Palace, Manila

DEPARTMENT OF HEALTH (DOH),
Jose Reyes Memorial Medical Center
Rizal Avenue, Manila

DEPARTMENT OF EDUCATION (DEPED),
Meralco Avenue, Pasig City

ALL OTHERS PETITIONERS WERE COPY-FURNISHED
THROUGH EMAIL ADDRESSES OF COUNSELS

HON. EDCEL C. LAGMAN
House of Representatives
Batasan Pambansa Bldg., Batasan Hills, Quezon City

HON. PIA J. CAYETANO
Senate
GSIS Bldg, Financial Center, Reclamation Area, Pasay City

ATTYS. IBARRA M. GUTIERREZ III & JUAN ALFONSO P. TORREVILLAS
Counsel for Intervenors Ana Theresia “Risa” Hontiveros

ATTYS. CLARA RITA A. PADILLA, ARNOLD FELICIANO DE VERA,
MARLON J. MANUEL & RAY PAOLO SANTIAGO
Counsels for intervenors
Room 215 Benigno Mayo Hall, Ateneo De Manila University,
Loyola Heights, Quezon City

ATTYS. ELIZABTEH AGUILING-PANGALANGAN & H. HARRY L. ROQUE, ETHEL C. AVISADO
Counsel for intervenors Drs. E. Cabral, G. Tan & A. Romualdez
Roque Botuyan Law Offices, 1904 Antel 2000 Corporation Center, 121 Valero St., Salcedo Village, Makati City

ATTYS. E.M. LOMBOS, JOAN A. DE VENECIA & JOYCE MELCAR T. TAN
Counsels for intervenors, 7th Floor SyCipLaw Center, 105 Paseo de Roxas, Makati City

EXPLANATION

            For lack of funds, copies for all other petitioners were served through the email addresses of counsels of record and the copies for the respondents and respondents-in-intervention were furnished through registered mails due to lack of manpower and distances.



BERTENI CATALUNA CAUSING


[1] G.R. No. 74457, March 20, 1987
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