Lessons for Pro-Lifers from the Supreme Court of the Philippines

In 2012, the Philippine legislature passed the “RH” bill, which promotes “reproductive health.” The Supreme Court of the Philippines (SCOTP) stayed the bill, pending review. In April, SCOTP issued its ruling. According to the decision, contraception has been legal in the Philippines since at least 1966, but the 2012 bill

made it mandatory for health providers to provide information on the full range of modern family planning methods, supplies and services, and for schools to provide reproductive health education. To put teeth to it, the RH Law criminalizes certain acts of refusals to carry out its mandates.

SCOTP’s ruling upheld RH’s public funding of contraceptives but concurred with various petitioner complaints.

The ruling is a medley of positive and negative aspects and is marred by internal inconsistencies. This is unsurprising. After all, these inconsistencies reflect the deep sociological tensions within the Philippines. Like so much of the world, the country is rent by individualizing western forces in conflict with longstanding communal and traditional values.

One source of these pressures is international “aid” organizations fixated on contraceptives as a societal panacea. Such organizations are generally unconcerned with how this culturally imperialistic obsession damages the moral ecology of a traditionally family-centered society. Pharmaceutical corporations have business interests in promoting the agendas of these organizations. Of course, some of the polarizing activity stems from internal elements under the influence of westernizing, secularizing forces.

The Good

The decision contains the following crucial positive aspects. First, it resoundingly affirms the Philippine constitution’s pro-life stance. Significantly, it definitively affirmed that any abortive contraceptive is unacceptable, not just those whose “primary” action is abortive. The decision declares that the “theory of implantation as the beginning of life is devoid of any legal or scientific mooring.”

The ruling protects the conscience rights of healthcare providers, even to the point of protecting their right not to make referrals for, or to provide information about, practices they deem immoral. Also, it challenges the usual assumption of development agency planners that high population levels are inherently problematic. The Court’s decision explained:

As healthful as the intention of the RH Law may be, the idea does not escape the Court that what it seeks to address is the problem of rising poverty and unemployment in the country. Let it be said that the cause of these perennial issues is not the large population but the unequal distribution of wealth. Even if population growth is controlled, poverty will remain as long as the country’s wealth remains in the hands of the very few.

The Court also notes that “population control may not be beneficial for the country in the long run. The European and Asian countries, which embarked on such a program generations ago, are now burdened with ageing populations.” It goes on to mention the case of Singapore, which the Court gives as an example of a country in which “the number of … young workers is dwindling with adverse effects on their economy.”

The positive aspects of SCOTP’s decision, however, appear alongside negative ones.

The Bad

A defender of the text of SCOTP’s decision would perhaps argue that some of its negative aspects were unavoidable in one or another sense, given that the court’s mandate is merely to assess HR’s constitutionality. Nonetheless, as we saw in relation to its commentary about poverty, the court broaches considerations that presumably range beyond its strict mandate. One then asks whether it might not have gone much further to inspire and defend perspectives that challenge those embedded in HR.

The decision repeatedly uses the phrase “reproductive health,” language manufactured to legitimize abortion and contraception. Puzzlingly, even after claiming in the passage cited above that a large population per se is not the problem, the decision also claims that “at the present, the country has a population problem.”

It is also troubling that while the Court asserts there is no compelling state interest to justify overriding the conscientious objector rights of health providers, it does not similarly conclude that objecting taxpayers should not be burdened coercively with taxes used to purchase contraceptives.

The Court leaves determination of which contraceptives are abortive up to the Philippine FDA. This is problematic because neutral-sounding scientific agencies or organizations easily can become tools of ideological agendas. Compare this, for example, with the HHS’s use of recommendations by the Institute of Medicine.

SCOTP did not dismiss a petitioner claim that oral contraceptive use has been correlated with significant health risks, suggesting that it is open to reviewing these risks in the future. But here, again, it defers to the FDA of the Philippines: “It behooves the Court to await its determination which drugs or devices are declared by the FDA as safe….”

Finally, the document rejects a petitioner invocation of natural law, but its very thin discussion of the latter is inconsistent with the thickly descriptive (to steal a term from Clifford Geertz) and prescriptive resonances one finds at points in it. While the Court claims that the “right to life … [is] grounded on natural law,” it greatly delimits the role of natural law reasoning: “With respect to the argument that the RH Law violates natural law, suffice it to say that the Court does not duly recognize it as a legal basis for upholding or invalidating a law. Our only guidepost is the Constitution.”

The Court claims that unless “a natural right has been transformed into a written law, it cannot serve as a basis to strike down a law,” and that “natural law is to be used sparingly only in the most peculiar of circumstances involving rights inherent to man where no law is applicable.” This attempt to distance itself from natural-law-based jurisprudence leaves it with quite a weak basis for responding to whatever legislative threats may emerge, not just to the pro-life cause, but also to the centrality of the family.

Concerning the latter, the Court at one point refers to “the unique and strongly-held Filipino tradition of maintaining close family ties.” Critics of contraception rightly point out that its practice has been correlated with broken families, extramarital sex, and an increase in the divorce rate.

International Significance

In sum, the decision contains an admixture of positive and negative elements. Nonetheless, the positive dimensions of the Philippine Court’s decision, representing as they do a heroic effort to stem socially destructive forces, have international significance.

The positive dimensions of the SCOTP decision provide an important model for pro-lifers globally. As a step en route to challenging taxpayer funding of contraception, they need to follow their Philippine counterparts in criticizing taxpayer funding of abortive contraceptives, whose morally problematic nature receives far too little scrutiny.

International pro-lifers should also call for more voluntary donations by westerners and expatriate citizens of developing countries to organizations that combat the sorts of social inequalities mentioned in the SCOTP decision. Currently both domestic governments and international organizations are attempting to fill the void left by religiously based social initiatives, making egregiously flawed policy decisions along the way. Donations to international grassroots organizations such as World of Hope Foundation play a tremendously valuable role in building positive alternatives by addressing basic human needs. For what they achieve, such donations are not financially burdensome and require minimal sacrifice by persons in wealthy countries.

Pro-lifers should closely monitor the way events unfold in the Philippines and should seek to learn better practices for challenging legislatures and filing petitions with courts. For example, it will be quite interesting to see whether and how SCOTP will eventually reply to the petitioner claim that oral contraceptives bear significant risks and therefore should not be publicly funded.

There are concerns that the Republic of the Philippines is careening toward legalized abortion and the public funding thereof. In this country, by contrast, pro-lifers are trying to move back up that slippery slope. Philippine culture differs radically from the intense individualism of US society. Without the cultural moorings that undergird the positive elements of the Philippine Supreme Court’s decision, our situation undoubtedly poses different, even more extreme challenges.

Still, American pro-lifers cannot afford to overlook the power of constructive public discourse in keeping these issues alive and at the forefront of politicians’ and jurists’ minds. Therefore, we must not abandon our social responsibility to promote the pro-life cause both here and abroad.