Speech, religion, and equal protection in the RH LAW
Joaquin G. Bernas, S.J.
In the course of the Supreme Court oral arguments on the RH Law, the first issue that came up was the meaning of “conception” in the constitutional provision which says “The State . . . shall equally protect the life of the mother and the life of the unborn from conception.” The view which, to mind, prevailed during the first day of oral arguments was that conception happens at fertilization and not at implantation in the uterus. This meaning is also implicit in the definition of abortion as the expulsion of a fetus anytime before its viability. Expulsion after viability is already infanticide, no longer abortion.
The other issues that have arisen are liberty of speech, of religion, and equal protection.
I have been involved in the discussions of these issues even while the RH Law was still being debated in Congress and I feel that it is my civic duty to continue my participation until the Supreme Court arrives at a decision. I propose to discuss the issues of speech, religion, and equality as they have cropped up in the oral arguments.
Any student of constitutional law will immediately see that by their nature the constitutional doctrine on speech and religion are closely intertwined. Freedom of speech includes not just the right to speak but also the right not to speak. Freedom of religion for its part involves not just the right to choose what to believe but also and especially the right to externalize or not to externalize one’s belief. Externalization of one’s belief is done through speech or other forms of communication whether oral or symbolic. Freedom of religion is violated when one is either forced to speak or in any manner communicate his belief or when one is prevented from expressing his religious belief.
All these take place in a pluralistic society where government may not prefer one religion over other religions. It is against this background that I propose to discuss provisions of the RH Law which deal with speaking or not speaking about religion.
We must understand that the health workers under the RH Law have the public duty to implement its provisions for the common good and not just for the good of some religious adherents. Moreover, a public duty is a public trust to be exercised for the good of all and not for the good of the preferred religion of a majority. And since our government is under a democratic system which respects plurality of religions, and considering that the Law is about sexual practices about whose morality our people are divided, it is inevitable that some health workers may encounter duties which their religion do not allow them to do. This is recognized by the law and the Implementing Rules and Regulations contains a proviso on this matter, namely:
“Provided, That the conscientious objection of a health care service provider based on his/her ethical or religious beliefs shall be respected; however, the conscientious objector shall immediately refer the person seeking such care and services to another health care service provider within the same facility or one which is conveniently accessible . . .”
According to critics of the RH Law, however, for all its noble intention, this Rule violates freedom of speech and freedom of religion resulting in a two-fold violence of the conscience of the health worker. First, by obliging the health worker to make a referral, the law is obliging him to speak contrary to his right not to speak. Second, by obliging the health worker to make the referral, the health worker is being obliged to send the patient to where she or he can sin thereby making the health worker who makes the referral a participant in the sin.
Indeed, if the health worker believes that these are sinful acts which she or he cannot perform without violating his or her conscience, he or she should not be forced to do so. Her belief, whether right or wrong in the view of government, must be honored. But the next question is, considering that this inability to perform a legal duty strikes at the very heart of the purpose for which the health center exists, is it reasonable or even just for the person to cling to the job? In a labor law situation, when a laborer on strike refuses to follow a return to work order, he will not be forced to return to work, but he may have to look for another job. Or should we ask that such RH worker be retired as a pensionado martyr?
Another objection which RH Law critics bring up is against the provision on age appropriate sexual education in public and private schools. To evaluate this criticism intelligently it is necessary to see the provision on the subject. It should be noted that the law does not yet attempt to impose a specific program. Rather, it provides that a program be formulated following certain careful guidelines for the manner in which the program should be formulated. Since the law does not yet create the program itself, this is not yet the time to challenge this aspect of the RH Law. Wait until the program is formulated. Before that, there is no “case” to bring to Court.
I shall take this up again next time since I am running out of space.
5 August 2013