Back to the RH Bill
Joaquin G. Bernas, S.J.
The House of Representatives has approved its final version of the RH Bill. I myself think that it is a much improved version. It will next go to the Senate and I anticipate that the two houses will agree on a final version to be sent to the President for his approval. I am certain, from what the President has been saying so far, that he will not veto what is presented to him. Thereafter it will undergo the required publication before it finally takes effect. After these happen, the debate on the bill, law by then, will go to a different level.
The judicial battle lines will be along moral fronts, often dependent on factual issues and where our people divide largely on the basis of religious belief, (sometimes appealing to science or pseudo-science), and along constitutional lines, which should be “fun.” I am also aware that people are often tempted to consider whatever they do not agree with as unconstitutional This, of course, is ridiculous.
Today I propose to join in the constitutional “fun” and leave moral issues to holier men and professionally trained moralists while also allowing for occasional excursions into science, about which I know little.
The opponents of the RH Bill will make a constitutional issue out of it arguing from various constitutional provisions. Likely starting points are two constitutional provisions found in Article II. We might, therefore, begin by asking what the binding force of Article II is.
The article is titled “Declaration of Principles and State Policies.” Sections 1 to 6 contain the “Principles” that are already engrafted into the structure and life of the nation. The State cannot depart from these principles. For instance, Congress may not set up a dictatorial government because that would run counter to Section 1 which declares our state to be democratic.
Sections 7 to 28 are called “State Policies.” Except for one or two of them, they do not yet contain commands that must be followed. Unlike the provisions of the Bill of Rights, they await implementing legislation from Congress.
There is a wide range of options open for Congress to use in implementing them. In the process of choosing, there necessarily will be a wide room for debate to determine what is best for the welfare of the nation. In the debate, conflicting value judgments will come into play. But as the Compendium on the Social Teaching of the Church notes, “Those responsible for government are required to interpret the common good of their country not only according to the guidelines of the majority but also according to the effective good of all the members of the community, including the minority.”
Two provisions in Article II will play a starting role in the constitutional debate. They are Sections 11 and Section 12.
Section 11 says: “The State values the dignity of every human person and guarantees full respect for human rights.” But this provision will not give the judiciary a handle for passing judgment on the constitutionality of the RH Bill. It is a motherhood statement. And the supporters of the RH bill will simply say that this is precisely the reason why they have made an effort to make the Bill reflect this non-debatable value.
Section 12 has a little more to say. It says: “The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception.”
The first sentence has been the subject of a number of Court decisions which clearly declare that how to protect the family is for Congress to decide. The Constitution makes no specific prescription.
As for the second sentence, the protection given to the unborn is only “from conception,” that is, from the earliest moment of life. The earliest that life begins is the moment of fertilization. This is enough to justify the prohibition of abortion clearly repeated in the RH Bill. But it says nothing about what to prohibit before life begins.
This brings us to the use of contraceptive methods. There are those who argue that contraception kills life. That is true if the contraceptive means used have the effect of expelling a fertilized ovum. Those who argue that contraceptives currently in the market kill life must be able to point to the precise contraceptive devises that are abortive. A sweeping generalization is irresponsible.
Very much involved in the debate about contraception is the matter of religious liberty. We have to be aware of the fact that we live in a pluralist society where various religious groups disagree about the morality of artificial contraception.
Freedom of religion means more than just the freedom to believe. It also means the freedom to act or not to act according to what one believes. And this freedom is violated when one is compelled to act against one’s belief or is prevented from acting according to one’s belief.
In our society, while people of good faith may find near unanimity on the matter of abortion as defined in the Penal Code, there clearly is sharp division in the matter of contraception. The division is drawn largely along religious lines. The official Catholic teaching, for instance, is that only natural family planning is allowed. The religion of many non-Catholics, however, prescribes a different set of rules on sexual morality. And, as much as Catholics, they too have the right of moral equality and moral freedom under our democratic system. The RH Bill clearly refuses to require all to follow Catholic teaching.
There are other possible constitutional issues in the RH Bill but space limitation allows me to say only so much for now.
7 February 2011