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HB No. 5043 is not good for your health, constitutionally speaking

(Article published in the Oct 22, 2008 issue of Manila Standard Today)  

 I object to House Bill No. 5043 in its entirety and not just to some of its parts. My reason is that the parts that I object to, which are the provisions that, to me and to others, are unwarranted intrusions into a person’s privacy and unjustified curtailment of his freedom of conscience, form the heart of the bill, and excising them would leave the bill a dead letter.

 The right to privacy is settled law. Ever since 1968, when the Supreme Court decided the case of Morfe v. Mutuc, it has been recognized that “the right to privacy…is fully deserving of constitutional protection.”  More explicitly, in 1998, the Supreme Court ruled, in Ople v. Torres, that “the right to privacy is a fundamental right guaranteed by the Constitution.”

 Morfe and Ople were actually progenies of the leading case in the United States of Griswold et al v. Connecticut (381 U.S. 479; 85 S.Ct. 1678; 14 L. Ed. 2d 510; 1965 U.S. LEXIS 2282) decided in 1965.  Griswold involved a statute in the state of Connecticut which criminalized the use of contraceptives and the giving of information and assistance to those who do.  Those who questioned the law were the executive and medical directors of the Planned Parenthood League of Connecticut.  They were previously convicted for violating the statute because they “gave information, instruction, and medical advice to married persons as to the means of preventing conception.  They examined the wife and prescribed the best contraceptive device or material for her use.  Fees were usually charged, although some couples were serviced free.”


The US Supreme Court invalidated the Connecticut law saying that various guarantees in the constitution “create zones of privacy” and that the case prohibiting the use of contraceptives “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.” 

 Seven years later, the US Supreme Court ruled in Eisenstadt v. Baird (405 US 438; 31 L Ed 2d 349; 92 S Ct 1029) that human reproduction is within Griswold’s zone of privacy.  It said, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

 Freedom of conscience, or the freedom of religion, is a specie of the right to privacy and is thus similarly regarded.  Our own Supreme Court said, “Freedom of religion has been accorded a preferred status by the framers of our fundamental laws…well aware that it is ‘designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience dictates…to live as he believes he ought to live consistent with the liberty of others and with the common good.’” (Iglesia ni Christo v. Court of Appeals).

 These rulings, however, do not mean that the government is absolutely off-limits to the zones of privacy and area of religion.  What they do mean is that when the state enters into these private realms, it must do so carefully, making sure that that what it seeks to achieve is, as required by Iglesia ni Christo, “consistent with the liberty of others and with the common good.”

 Ople provides a summary of the courts’ attitude: “In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy.  The right is not intended to stifle…the common good.”  It is further stated, “It merely requires that the law be narrowly focused and a compelling interest justify such intrusions. Intrusions into the right must be accompanied by proper safeguards and well defined standards to prevent unconstitutional invasions.”

 The operative phrase is “compelling interest.”  In Carey v. Population Services International et al (431 U.S. 678; 97 S. Ct. 2010; 52 L. Ed. 2d 675, 1977 U.S. Lexis 104), the US Supreme Court said that “compelling’ is of course the key word; where a decision as fundamental as that whether to bear or beget a child is involved, regulations imposing a burden on it may be justified only by compelling state interests, and must be narrowly drawn to express only those interests.”

 A quick examination of key provisions of HR No. 5043 fails, in my view, to demonstrate the compelling interest of the state justifying them. Some examples:

 Employers are proposed to be required to provide their employees for free reasonable quantities of reproductive health care services, supplies and devices.  What compelling interest of the state is there in making sure that employees have a free supply of condoms and intrauterine devices?

 Parental consent is, under the Family Code, needed by a person between 18 and 21, whether abused or not, in order to get married.  Why, as the bill proposes, dispense with parental consent of an abused minor girl (i.e. under 18 years of age) seeking a tubal ligation?

 What compelling state interest is there to justify the proposed enabling of a husband to get a vasectomy without his wife’s consent?  All along I thought by marriage the two became one flesh.

 Why should a Catholic doctor be considered a criminal if he refuses to spend time informing his patient, on account of the latter being also a Roman Catholic priest, of the merits of his having a vasectomy performed on him?  After all, under the laws of their common faith, the patient’s need to render himself incapable of having children is, for the moment, moot and academic.

 I could go on and on; but the point I want to make, I trust, is clear.  The mere fact that in the Philippines there are many (or even “too many” in the minds of some) mouths to feed does not by itself put the country at the risk of running out of food.  After all, for every mouth there is to feed, there usually are two hands to produce the food.