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Court ruling on RH law: Big, big trouble for Aquino

First of two parts

If the Supreme Court decision on the constitutionality of the Reproductive Health Law (Republic Act 10354) were setting a precedent, this year could be President Aquino’s annus horribilis.

The decision by the Court majority and the opinions issued by the justices on the RH law reveal how they think, and will decide in two pending crucial cases: First, on Mr. Aquino’s Disbursement Acceleration Program that gave him huge funds to bribe Congress to convict Chief Justice Corona; and second, the Comprehensive Agreement on the Bangsamoro (CAB) he struck with the Moro Islamic Liberation Front to create a substate for the Islamic insurgents.

Read on and it will be quite obvious how the Court will decide on these two crucial issues.

It could be a case of poetic justice. In his first years in office, Mr. Aquino assaulted the Supreme Court when he undertook a campaign to have its Chief Justice removed on obviously flimsy grounds really, showing that he detested him for being an appointee of the previous president.

In Aquino’s last years in office, it will be the Supreme Court that will strike back and raise high the torch of reason in this country darkened by a thick yellow fog. It will likely deal the two fatal blows on his rule. Once declared unconstitutional by the Supreme Court, the President’s two policy monsters—the Disbursement Acceleration Program and the CAB’s dismemberment of the Republic —would start a chain of events that could topple him.




For starters, we have to reiterate several points made in my column April 14 (“SC ruling on RH law entrenches Catholic dogma”) to debunk the amazingly dominant but outrageous yellow media misinformation that the Court upheld the constitutionality of the RH law, and that it is a victory for Aquino.

The headline by a broadsheet, “SC upholds RH law” is a complete hogwash. The SC struck down as violating the Constitution seven of the RH Law’s crucial provisions and a very important one contained in its Implementing Rules and Regulations (IRR), made by Aquino’s officials headed by its Heath Secretary.

With these provisions declared unconstitutional, the RH law adds little to the five population-control laws in effect these the past five decades, among them R.A. No. 6365 of 1971 (“An Act Establishing a National Policy on Population, and Creating the Commission on Population), Marcos Presidential Decree No. 79, and R.A. No. 9710 of 2009 (“The Magna Carta for Women”). Among other roadblocks, these laws’ biggest problem is the lack of funds for purchasing and distributing contraceptives. It is still the biggest problem despite the new RH law.

Struck down by the Court as unconstitutional was a provision that required those in the health industry, whether private or government, to provide birth-control information and the means, even if they didn’t agree with these for religious or other reasons.

The Court also ruled that the approval of both spouses is required for their irreversible birth-control procedures as vasectomy and tubal ligation.

However, the most crucial provision the Court declared unconstitutional was an item in the law’s implementing rules which could have, because of a single adjective, allowed government to undertake an effective population control program.

Section  3.01 of the law’s IRR  inserted the adjective “primarily” to define 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 was a clever move by the pro-RH proponents to skirt the Constitution. 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: These weaken the uterine wall’s lining so the fertilized egg can’t be implanted there and therefore dies. The law’s IRR would have therefore allowed government to distribute such a device and drugs, which elsewhere in the world has had the biggest impact on containing population growth.

The Court saw through the pro-RH law’s proponents’ ruse and struck down that provision as unconstitutional on grounds that it violated the Constitution’s article II, section 12, which actually was a Catholic dogma smuggled into our basic law: “(The State) shall equally protect the life of the mother and the life of the unborn from conception.”

Much of the SC decision, as well as the nine concurring and dissenting opinions, expounded on the implications of this provision, that it means that any action to stop the fertilized egg from developing is against the constitution. This is contrary to the views of modern medical science, other religions, and of most jurisprudence in the world that life beings only when the fertilized egg has implanted itself on the uterine walls, since only at that time is it viable.

That the SC ruling was a total defeat for Aquino, and a de facto rejection of the RH law, is obvious in how the justices voted.

Out of the 15 Supreme Court justices, eleven concurred with the decision as written by the ponente Associate Justice Jose Mendoza. Coincidentally or not, all these eleven justices were appointed by former President Gloria Macapagal-Arroyo.

Justice Mariano del Castillo wrote what was titled a “Concurring and Dissenting Opinion.” He dissented however only on minor technical matters, but agreed on six of the eight points the ponente struck down as “unconstitutional” and remained silent on the remaining two items. He even asked the Court to issue specific directives that would make sure the Food and Drug Administration and the Health Department complies strictly with the Court’s decision.

Justice del Castillo had been bullied since 2010 by Aquino’s media and Congress forces, and threatened with impeachment for alleged plagiarism on a decision he wrote. The pressure on del Castillo was so intense that Court sources said it affected his health severely that he had to undertake a quintuple coronary by-pass surgery in 2012. Court insiders had alleged that it was a move by Aquino’s camp to force del Castillo to side with the President on cases before the High Tribunal. If that allegation were true, the pressure obviously did not work.

Coincidentally or maybe not, the four justices who wrote dissenting opinions to disagree one away or another with the ponente’s decision were all appointees of Mr. Aquino: Chief Justice Maria Lourdes Sereno, Bienvenido L. Reyes, Estela Perlas-Bernabe and Marivic Leonen.

What should worry Aquino though is that while officially they “dissented,” two of the justices he had appointed to the Court, most notably Chief Justice Sereno, actually backed the majority’s decision—i.e., that of the Arroyo appointees—that drastically watered down the RH law. Aquino is losing hold on the justices he appointed. After all, they’ll still be in the Court long after Aquino has become all but forgotten except as a mean-hearted, incompetent president. Sereno for instance retires only in 2030.

Only Leonen toed in its entirety Aquino’s party line, and voted that nothing in the RH law was unconstitutional.

Leonen was appointed to the court only in November 2012, right after the Bangsamoro pact  with the MILF was inked. It was apparently his reward for heading Aquino’s negotiating panel with the MILF—or, as his critics at the UP Law School allege,or his agreeing to the grossly unconstitutional  provisions of the pact.

More on the SC decision on the RH law and why it  could be the start of Aquino’s downfall.

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