ISSUES ARISING FROM THE RH BILLS
Joaquin G. Bernas, S.J.
[The piece below is a talk I gave to the Makati Medical Society. I recproduce it here for those who were interested enough to comment on my blog on the Alabang Ordinance.]
I am honored to be invited to speak before you today. Cutting the ribbon was a further unexpected honor. But when I received your invitation I said to myself, Why me? Why not someone closely connected with the medical profession. I also wondered what I could possibly talk about. Luckily your emissary did not specify what you want me to speak about, but he did say that the topic can be anything that has something to do with morality.
Morality, of course, is a very broad subject. This is good, because it gives me a wide field of topics to choose from. However, since you are medical professionals and I am a priest who also happens to be a lawyer, I thought that I should choose something interdisciplinary, something about which you and I can dialogue. Fortunately there is a topic that has been hugging the newspapers about which medical scientists, lawyers, and religious leaders can have something to say from the perspective of their respective specializations. I am, of course, referring to the Reproductive Health Bills being discussed in Congress.
The Reproductive Health Bill deals with family planning, contraception, and to some extent with abortion. Personally, I have no use for these. Ultimately, however, and as the Bills themselves say, it is about protection of human life, and I am interested in that. Hence I would like to begin by asking: When does human life begin? The Constitution has an answer to this question; the medical profession also has; finally Pope John II has spoken about it.
I begin with what the Constitution says: “The State . . . shall equally protect the life of the mother and the life of the unborn from conception.” In the mind of those who wrote the Constitution, (and I was one of them), life begins at conception. More specifically, what we meant was that life begins at “fertilization.” We, the constitution writers, of course, were not speaking as medical scientists. What we intended the Constitution to mean was that the law should play it safe. Following the precautionary principle, since there is the possibility that life begins at fertilization, the protection of life should begin from the verified moment of fertilization.
Correct me if I am wrong, but I have been made to understand that the Philippine Medical Society, or at least some of your members, also hold that life begins at fertilization. [Confirmed by the President of PMA)
This, I believe, is also the moral teaching of John Paul II’s Evangelium Vitae: He says: “. . . what is at stake is so important that, from the standpoint of moral obligation, the mere probability that a human person is involved [in the fertilized ovum] would suffice to justify an absolutely clear prohibition of any intervention aimed at killing a human embryo.”
On this basis I hold that abortion under the Penal Code is committed when a human embryo is expelled or destroyed any time from fertilization to the point of viability of the fetus. If expulsion is done after viability, it is no longer abortion but infanticide, a more serious criminal offense. (And incidentally, also serious sins against God).
Let me move from abortion and infanticide to contraception, which is more controversial. 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 mainly along religious lines. The official Catholic teaching, for instance, is that only natural family planning is allowed, even if I am aware that many Catholics do not follow this teaching. The religion of many non-Catholics, however, prescribes a different set of rules on sexual morality. And, as much as Catholics, non-Catholics too have the right of moral equality and moral freedom under our democratic system..
I do not think we can reach agreement about contraception in our life time. Hence I would like to talk about this insurmountable disagreement in the context of something we have to live with. I am referring to freedom of religion guaranteed by the Constitution, which incidentally is also the teaching of the Catholic Church since the decree on Religious Liberty under the Second Vatican Council.
What does the Constitution say about religious liberty? The text says, and I quote: “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.” What does this mean? It means more than just the freedom to believe or freedom to choose what church to affiliate with. It also means the freedom to act or not to act according to what one believes. Thus this freedom is violated when one is compelled to act against one’s belief or is prevented from acting according to one’s belief. Let me therefore talk, first of all, about contraception in the context of freedom of religion.
At the moment the government, under the supervision of the Department of Health, makes contraceptive pills and devises available without distinction as to whether those who avail of them are Catholics or non-Catholics. We are assured by the Palace that the President is firm in his decision not to stop what the Department of Health is doing. The President recognizes the right of everyone to exercise responsible parenthood in accordance with their moral beliefs. Clearly, the President may not, on religious grounds, stop people from acting according to their moral belief if their acts are neither prohibited by law nor harmful to public welfare.
I would also add that the President is not defying Catholic teaching because Catholic teaching, for a pluralist society like ours, requires that government interpret the common good of the country not only according to the guidelines of whatever religion may be the majority, in our case the Catholic religion, but also according to the effective good of all the members of the community, including those belonging to minority religions.
I understand, however, that since there is as yet no law on the subject, some local officials do not allow local offices to dispense contraceptive devises. Only recently, for instance, the newspapers reported that barangay officials of an exclusive community passed an ordinance prohibiting the dispensing of contraceptives. The authors of the ordinance claim that they are merely implementing a provision of the law on the practice of pharmacy which prohibits the dispensing of contraceptives without prescription. But if you look at the Pharmacy Law, a medical prescription is required only for those classified by the Food and Drug Administration as needing prescription. I ask you, since you know this better than I: Is there any contraceptive drug or device being openly sold over the counter today which requires prescription?
I believe, however, that there is something more eerily fundamental here. I see in this ordinance an attempt by a sector of the Catholic church to instrumentalize the power of the state to impose their personal belief on all others. This is something which gives the Catholic religion a bad name.
But an important question, of course, is whether there are in the market today contraceptive means which not only prevent fertilization but even can expel a human embryo or cause abortion. That is a question for science and the Food and Drug Administration to answer. If there are, they should be specifically identified and taken out of the over the counter market.
It is also important to recall that, while adherence to religious liberty is theologically founded and ecumenical, theology is not the only reason for adherence to the principle. There are additional reasons. In fact it has been said that Vatician II’s affirmation of religious liberty in Dignitatis Humanae was as much motivated by historical experience religious persecution of the Jews as by theology. We who have not experienced massive religious persecution must learn from the lessons of history.
There are other issues that can arise from the RH Bill insofar as it relates to religious liberty. Let me just mention a few.
The implementation of the RH Bill will be done by government health workers. What happens if the duties of government health workers will require them to act against their religious belief? This is something which, I believe, is not taken up in the existing draft of the RH Bill. But in constitutional law there is a concession to conscientious objectors in the military. Those who are against war as immoral are not sent to the front but are given desk assignments. I hope that a similar concession can be given to objecting health workers.
Another religious liberty issue can arise from the duty imposed on employers. The latest version of the bill which I have seen has 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.
Another issue is sex education. 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 ëthe 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.î This seems to be 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.
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.
Finally, let me just say that the RH Bill is a work in progress. The House version will still have to be debated in plenary sessions. If approved by the House, it will still go to the Senate for the same deliberative process. What will finally come out will be colored by inputs made by religious leaders, lawyers, and health professionals like you. It therefore gives you an opportunity to make a contribution towards making a reproductive health law that is best for the Filipino people.
13 March 2011