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.