Joaquin
G. Bernas, S.J.
I have
listened to more than ten hours of oral arguments on the constitutionality or
unconstitutionality of the Reproductive Health Law. No, I did not make a martyr of myself in the session hall of
the Supreme Court. But thanks to
the Supreme Court website I was able to listen to two five-hours of not exactly
scintillating sessions through my computer and at my leisure. More five-hour sessions are promised.
So far we
have heard two lawyers both arguing against constitutionality. I admire the patience of the
justices. First I heard them
bombarded with arguments heavily medical and biological in nature. They evoked the comment of one Justice
that perhaps they should first go to the Food and Drug Administration for an
opinion on the safety of the drugs they were against. I did not hear the name of the drugs which are considered
culprits.
Second I
also heard arguments on freedom of speech, free exercise of religion heavily
laced with arguments from moral theology.
This one evoked the comment that perhaps the matter should be brought to
the Congregation of the Faith in Rome.
The debate,
of course, is by no means finished and it will go on with sustained
intensity. The battle lines will
continue to be drawn along moral fronts, often dependent on factual issues and where
our people divide largely on the basis of religious belief, and of course along
constitutional lines. I am also
aware that people are often tempted to consider whatever they do not agree with
as unconstitutional.
I have
written about constitutional issues and so let me recall some that are being
dealt with in the oral arguments and the background of the position I have
taken on those issues.
An area of
constitutional law which cannot be avoided is Article II entitled
“Declaration
of Principles and State Policies.”
The “policies” referred to are found in Sections 7 to 28. Except for one or two of them, the
Sections do not yet contain commands that are ready for implementation. 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.
They have already surfaced in the ongoing oral arguments.
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 Law will simply say that this is precisely
the reason why they have made an effort to make the Bill reflect this
non-debatable value. But the
opponents of the RH Law say that the law promotes a “contraceptive mentality”
that leads to disrespect for human rights.
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 “from conception,” that
is, from the earliest moment of life. In my earlier writings I have taken the position that
the earliest that life begins is at 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. You don’t kill life that does not yet exist. 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.
I hope to
say more about this later.
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