INSTEAD of gnashing their teeth, Catholic militants, if they had just bothered to read the actual Court decision, should have called for churches all over the land to toll their bells in celebration. The Supreme Court decision on the Reproductive Health Law entrenched a very questionable Catholic dogma as state policy that in effect bans government from undertaking any effective population control program.
If the US Supreme Court’s landmark 1973 Roe vs Wade decision marked America’s move towards affirming women’s supreme rights over their bodies, the April 2014 decision of our Supreme Court on the Reproductive Rights Law deprives Filipinas of their long-held rights under our culture over when their pregnancy can be terminated.
What dogma?
That the fertilized ovum, scientifically termed a zygote—2-millimeters in diameter in size— created minutes after the sperm penetrates the female egg is a human person with a soul, and it is murder, a mortal sin to terminate its existence in any way. Under this view, women in effect relinquish their rights over their bodies, since a new human person, the zygote, is an occupant in their wombs, with as much rights as them.
That dogma was enshrined in our 1987 Constitution, as article II, section 12: “(The State) shall equally protect the life of the mother and the life of the unborn from conception.”
The Court’s decision on the RH law is the first time that provision has been invoked to nip in the bud an effective population-control program the RH proponents really were intending. That Catholic dogma has been entrenched in our legal system since the decision threw out other interpretations of that provision, such as that made by Justice Marivic Leonen who argued in his dissenting opinion that the constitution wasn’t really referring to the zygote, and that when “life” begins should be determined by science.
This is a person, according to the Supreme Court ruling invoking a constitutional provision. Microscope photo of a fertilized ovum, or zygote, 20 hours after insemination.
That a zygote is a person is a notion rejected by mainstream medical science, by the legal framework of developed countries (such as the US, especially under the Roe vs. Wadedecision), by many other religions including several non-Catholic Christian churches, and even by the mores of most societies – including, as I will explain, our own.
Scientifically, or at least according to the mainstream scientific community, the “start of life” is only when the fertilized ovum or zygote becomes viable after it is implanted on the uterine wall, at which point it is scientifically termed the blastocyst.
It is the start of life since it is only the blastocyst that is viable and can develop into an embryo that would become a human baby 7 to 9 months later. Pregnancy in fact can be detected only because of the hormones secreted by the blastocyst. The US, mainly as a consequence of the Roe vs Wade decision, and many other countries in the world allow termination of pregnancy as long as six months after the formation of the blastocyst.
Filipino values certainly don’t conform to the Catholic dogma, evidenced in part by the widespread use of herbal concoctions euphemistically called “pangpa-regla” (menstruation-inducers) which are even sold by the side of the churches. These herbs induce the uterus to expel the blastocyst. In fact it is only when the blastocyst is formed that a woman’s menstrual cycle is interrupted.
That most of humankind don’t subscribe to that dogma is evident in most societies’ mores.
Zygotes that do not survive are expelled monthly in a woman’s menstruation. However, there is no culture on the planet past and present that mourns such events as the death of souls, nor is the menstrual blood respectfully buried in some cemetery of zygotes. In fact most societies past and present simply consider the menstrual discharge as waste, containing no dead souls, with even the Bible (and Islam) seeing women menstruating as “unclean,” barred from joining religious rituals.
But whatever your views are and whatever scientific facts and anthropological insights are, all of us—Muslims (some of whom believe a fetus gets a soul only after four months), Protestants, agnostics and many other groups who don’t subscribe to that dogma—are bound by it in this country, because of its Constitution, the court ruled.
As Justice Roberto Abad in his concurring opinion declared as if issuing a Papal bull:
“Some people believe that the conception of the child begins only from the moment the fleshed embryo implants itself on the mother’s uterine wall where it will draw the food and nutrition it needs to survive and grow into a fetus… But they are wrong. The 1987 Constitution is clear: the life of a child begins ‘from conception.’
“With the Constitution, the Filipino people have in effect covenanted that the fertilized ovum or zygote is a person. And it is a covenant that binds.”
The court’s decision narrated in some detail how the Catholic provision was put in the Constitution because of the intense efforts of Opus Dei ideologue, and Constitutional Convention delegate Dr. Bernardo Villegas.
Several of the other justices in their concurring opinions were effectively just throwing up their hands in exasperation, that even if they don’t believe in the dogma behind that provision, they have no choice but to see that it is upheld, since it is in the Constitution. In his concurring opinion, Senior Justice Carpio pointed out:
“The Court is simply not competent to declare when human life begins, whether upon fertilization of the ovum or upon attachment of the fertilized ovum to the uterus wall. The issue of when life begins has not even been settled within the scientific and medical community… But we can only reiterate the Constitutional provision (protecting) ‘the life of the unborn from conception.’ ”
The view that the fertilized egg is a person is really a modern 20th-century Catholic Church dogma, obviously since the existence of sperms, eggs, and all the details of human reproduction were discovered by science starting only in the late 19th century.
It was Cardinal Joseph Ratzinger, who became Pope Benedict XVI in 2005, who as head of the Congregation for the Doctrine of the Faith first used the term “zygote” in his 1987 Donum Vitae (“Instruction on Respect for Human Life in Its Origin and on the Dignity of Procreation”) asserting out that “it demands the unconditional respect that is morally due to the human being in his bodily and spiritual totality.”
Biggest hurdle
That provision, which no other constitution on this planet has, represents the biggest hurdle to a real population control program because of the following realities.
Contraceptives are drugs and devices that prevent spermatozoa from reaching the egg or fertilizing the female egg. Abortifacients on the other hand prevent a fertilized egg (the zygote) from being implanted on the uterine wall, which prevents it from being a viable entity. Such abortifacients are banned under that Constitutional provision, since “the life from conception” is the very definition of a zygote.
The problem is that most of the drugs and devices the that have been the most effective in mass population control programs are not only contraceptives, but also have abortifacient effects. This is logical in the design of such a drug or device since if it fails to prevent contraception, its fail-safe mechanism would be to prevent the zygote from being implanted on the uterine wall.
The most popular population-control device estimated to be used by 180 million women is the intra-uterine device (IUD), proven to be most effective especially in developing countries. A nurse in a rural clinic can insert it and the woman can just forget about it until it has to be replaced years —up to ten years — later. However, it has also the effect of preventing the lining of the uterine wall from thickening that the zygote can’t implant itself there, gets too little oxygen and nutrients, and consequently dies.
The authors of the RH Law obviously were very well aware of this Constitutional block, and I suspect, pretended to respect it. The law stipulated that the State will provide access only to “non-abortifacients…which do not prevent the implantation of a fertilized ovum.” It defined an abortifacient as “any drug or device that induces abortion or the destruction of a fetus inside the mother’s womb or the prevention of the fertilized ovum to reach and be implanted in the mother’s womb.”
The devil—certainly a perfect metaphor for Catholics in this case—though was in the details.
Section 3.01 of the law’s Implementing Rules and Regulations—made by an inter-agency committee chaired by the Health Secretary—inserted the adjective “primarily” to its definition of an abortifacient. “Abortifacient refers to any drug or device that primarily induces abortion… or the prevention of the fertilized ovum to reach and be implanted in the mother’s womb.”
It would have been a very clever move to skirt the Constitution’s provision. IUDs and other contraceptives indeed have the primary effect of preventing spermatozoa from reaching the egg. But these also have the fail-safe (secondary, or even third-level) effect on the uterine wall’s lining so the zygote can’t be implanted and therefore dies. The law’s IRR would therefore allow such device and drugs which elsewhere has had the biggest impact in population control.
Cannot be done
The Court though discovered this clever ruse of the RH proponents. “This cannot be done,” the decision said. “The insertion of the qualifier “primarily” will pave the way for the approval of contraceptives which may harm or destroy the life of the unborn from conception/fertilization in violation of Article II, Section 12 of the Constitution, “ the decision pointed out.
The last item in its 8 point decision is therefore the most important, the other seven really of little consequence: The section in the IRR “which added the qualifier “primarily” in defining abortifacients and contraceptives is null and void for violating Section 12, Article II of the Constitution, ” the decision said.
The Court’s ruling—or its ponencia by Justice Jose Mendoza, whose two brothers are priests—even went to the extent of denying that there is a need for a population-control program:
“As healthful as the intention of the RH Law may be, the idea does not escape the Court that what it seeks to address is the problem of rising poverty and unemployment in the country. Let it be said that the cause of these perennial issues is not the large population but the unequal distribution of wealth.”
“Even if population growth is controlled, poverty will remain as long as the country’s wealth remains in the hands of the very few. At any rate, population control may not be beneficial for the country in the long run. The European and Asian countries, which embarked on such a program generations ago, are now burdened with ageing populations. The number of their young workers is dwindling with adverse effects on their economy. These young workers represent a significant human capital which could have helped them invigorate, innovate and fuel their economy. These countries are now trying to reverse their programs, but they are still struggling. For one, Singapore, even with incentives, is failing.”
Those claims, as I wrote in my Monday column, are not based on facts, but is the “demographic winter” bugaboo popularised in our country by Dr. Villegas.
With the Court upholding that Catholic dogma, our country is doomed to overpopulation —of the poor and the poorest, that is, ensuring the elite of the cheapest labor possible.
The Court’s decision simply means that we can never have a real population-control program until that Catholic dogma is expunged from the 1987 Constitution passed under Cory Aquino’s aegis.