Saturday, February 12, 2011

Burn RH Bill to Roast a Pug

Unless I am completely out of the loop, my fearless forecast is that an RH
Bill will become law. Demonstrations will not stop it. Nor do I see the justices of the Supreme Court agreeing to declare such a law totally invalid.

An RH Law would be the product of the exercise of police power. An exercise of police power is evaluated on the basis of the requirements of substantive due process. The requirements of substantive due process are simple enough to understand. To be valid, the exercise must, first, have a valid public purpose designed to serve the general welfare and not merely private benefit, and second, the means used to achieve such purpose must be reasonable, not oppressive nor arbitrary. Nor must the means used be the best to achieve the desired goal. Reasonableness does not demand the best means nor the sure-fire means. When the RH Bill becomes law and is challenged, it will be tested according to these standards.

What are the chances of an RH Law flunking these standards? First, will the coming RH Law have a valid public purpose? The public purpose of the RH Law is written all over its “Declaration of Policy” – protection of basic human rights to reproductive health, respect for cultural and religious beliefs and responsible parenthood, gender equality and equity, promotion of the welfare of children. As stated, these purposes are all defensible.

What about the means used to achieve these goals? It would be a thankless herculean task to argue that the whole thrust of the RH Bill is unreasonable, abusive, oppressive and arbitrary. But this does not mean that the entire Bill is invulnerable to challenge or to improvement. Let me attempt to discuss some of the points that might be debated.

Freedom of religion can give rise to some debatable issues in the implementation of the law. Let me just mention some.

Parents are justifiably concerned about the proper moral training of their children. The approved bill has retained the provision on a common sex education program for public and private schools to be formulated by the Department of Education (DepEd), the Commission on Higher Education (CHED), the Technical Education and Skills Development Authority (TESDA), the DSWD, and the DOH. Curiously, however, the bill also says that ‘the DepEd, CHED, DSWD, TESDA, and DOH shall provide concerned parents with adequate and relevant scientific materials on the age-appropriate topics and manner of teaching reproductive health education to their children.” Is this an indication that the bill is open to making exception for parents who wish to teach their own children?

If this exception for parents is what the bill envisions, there is a constitutional model for it. The Constitution says: “At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.” Needless to say, religious schools will also want to design their own program.

The RH bill has also retained the provision which says that “employers with more than 200 employees shall provide reproductive health services to all employees in their own respective health facilities. Those with less than 200 workers shall enter into partnerships with hospitals, health facilities, and/or health professionals in their areas for the delivery of reproductive health services.” Notably, however, it does not specify the kind of reproductive health services to be given. But the Department of Labor is given the responsibility of implementing this provision. We will have to await how the Department of Labor will implement this and whether allowance will be made for religious objection.

Is it legitimate for the government to use public money for contraceptive services? Incidentally, the RH bill, in its definition of methods of family planning, has deleted specific reference to “pill, intra-uterine device (IUD), injectables, condoms, ligation, vasectomy . . .” It now merely says “safe, effective and legal methods, whether the natural, or artificial that are registered with the Food and Drug Administration (FD) of the Department of Health (DOH).” As to the use of public funds for these, it is good to remember that public money has no religious character. The rule on how to spend it is simple. Money can be drawn out of the public treasury only “in pursuance of an appropriation made by law.” The only limitation on Congress when funds are available is that the appropriation must be for a public purpose.

What this all comes down to is that a shot-gun approach to the RH Bill will not succeed. You don’t burn an entire house to make lechon. Nor will a Tahrir Square type of demonstration stop it. Such an approach can be a manifestation of intellectual bankruptcy. One must challenge each specific objectionable part and argue it out. After all, this is not a fight against a Hosni Mubarak.

14 February 2011

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