FEATURED ARTICLE: PRIVACY AND THE BAN ON CONTRACEPTIVES

The author, Atty.Ernani Diaz Bonoan, is an alumnus of Silliman University. He is currently a practicing lawyer based in Cagayan de Oro City.

In my previous article I posit the view that reproductive freedom is a protected right under the right to liberty of the due process clause of the Constitution (Article III, Section 1 of the 1987 Constitution). Equally relevant on the issue of reproductive freedom is the right to privacy of each individual whether married or single. This is so because right to privacy is rooted on the concept of liberty as well. In the words of a learned jurist: “Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of all freedom.” Privacy, moreover, covers reproductive freedom “for if privacy is to mean anything it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” (Eisenstadt vs. Baird [405 US 438]).

One of the cherished rights protected by our Constitution is the right to privacy or the right to be let alone. While not explicitly mentioned in our Constitution, its existence is recognized in our jurisdiction. In the Philippine judicial landscape, this right was articulated in the leading case of Morfe vs. Mutuc (G.R. No. L-20387, January 31, 1968). Following the trodden path of its American counterpart, our own Supreme Court acknowledged that the specific guarantees of the Bill of Rights have penumbras, formed by emanations from those guarantees that create a zone of privacy. The Court, citing the seminal case of Griswold vs. Connecticut (381 U.S. 479 [1965]), quoted with approval the following disquisition of Justice Douglas thus:

"Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."'

After referring to various American Supreme Court decisions, Justice Douglas continued: "These cases bear witness that the right of privacy which presses for recognition is a legitimate one."

The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the ground of its amounting to an unconstitutional invasion of the right of privacy of married persons; rightfully it stressed "a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." It has wider implication though. The constitutional right to privacy has come into its own. So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection.
Indeed, the Court acknowledged that the “right to be left alone” is “the most comprehensive of rights and the right most valued by civilized men." Consequently, the existence of this right to privacy was reaffirmed as fundamental right in Ople vs. Torres (G.R. No. 127685, June 23, 1998). Again, following Griswold vs. Connecticut (supra), Justice Reynato Puno writing for the Court declared that “if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several provisions of our Constitution.”

Significantly, our adaption of Griswold, the first case in which the constitutional right to privacy was explicitly recognized, involved a constitutional challenge on a law banning access to contraceptives. The factual milieu reveals that Connecticut passed a law which bans the use of “any drug, medicinal article or instrument for the purpose of preventing contraception.” The law likewise criminalizes the act of any person “who assists, abets, counsels, causes, hires or commands another” in the commission of the foregoing offense. The avowed purpose of the statute according to Connecticut’s counsel Thomas Clark is to reduce the chances of immorality and to act as a deterrent to sexual intercourse outside marriage. Estelle Griswold together with Dr. C. Led Buxton opened a birth control clinic and started to distribute and advise married couples on the proper use of contraceptives. Three days after opening their clinic Griswold and Buxton were arrested. When the case was finally elevated to the U.S. Supreme Court the law was struck down as unconstitutional as it amounts to unwarranted intrusion upon the zone of privacy of married couples. This zone of privacy, according to Justice Douglas, is created by several fundamental constitutional guarantees” including the First, Third, Fourth, and Fifth amendments, all of which “have penumbras, formed by emanations from those guarantees that help give them life and substance.” The Court noted that the law denying couples access to contraceptives “operates directly on an intimate relation of husband and wife x x x a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.” For the Court, the existence of the so called zone of privacy protected “notions of privacy surrounding the marriage relationship”. Consequently, the Court rhetorically asked:

“Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

In view of this, there is no question that an absolute ban on the use of contraceptives would be an infringement of the privacy rights of married couples. A law criminalizing the use of contraceptives is too broad and sweeping in its scope that it unnecessarily infringes on marital privacy.

It is quiet significant that the decision in Griswold revolves around the privacy right of married couples. There is nothing explicit therein which extend to unmarried individuals the right to use contraceptives. However in the case of Eisenstadt v. Baird [405 US 438] the same right granted to married couples was extended to unmarried individuals. The ruling in Eisenstadt was groundbreaking in the sense that it established the right of unmarried people to possess contraceptives on the same basis as married couples. By implication, the decision acknowledged the right of unmarried couples to engage in non-procreative sexual congress. In its logical sense, Eisenstadt impliedly concludes that all sex between consenting adults is constitutionally protected. Writing for the majority, Justice Brennan declared that to deprive unmarried individuals access to contraceptives while allowing the same for married couples would violate the equal protection clause. Anent the issue of privacy, Brennan succinctly wrote:

If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals, each with separate intellectual and emotional make up. If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

In fine, it is crystal clear that under the various provisions of the Bill of Rights, the choice to use contraceptives rest on married couples. The State cannot, in an attempt to uphold its own moral viewpoint, deprive married couples of their constitutional right to choose and decide for themselves the issue parenthood. Further, single and unmarried adults, may invoke their right to liberty and privacy to consummate their bonds in intimate sexual conduct even for non-procreative purpose. As long as these are done consensually, their sexual behavior does not contravene fundamental state policy as contained in the Constitution (Concerned Employee v. Glenda Espiritu Mayor, A.M. No. P-02-1564, November 23, 2004). For in the words of the High Court in the case of City of Manila v. Laguio, Jr. (G.R. No. 118127, April 12, 2005): x x x be it stressed that their consensual sexual behavior does not contravene any fundamental state policy as contained in the Constitution. Adults have a right to choose to forge such relationships with others in the confines of their own private lives and still retain their dignity as free persons. The liberty protected by the Constitution allows persons the right to make this choice. Their right to liberty under the due process clause gives them the full right to engage in their conduct without intervention of the government, as long as they do not run afoul of the law. Liberty should be the rule and restraint the exception.

Ed. Note: The author would like to acknowledge the treatises on Philippine Political Law [2002 Edition] and Constitutional Law [2003 Edition] of Justice Isagani A. Cruz in the discussion of police power and the supremacy of the Constitution in the first part of this article published in Goldstar Daily (Mindanao) dated June 23, 2011.

LIBERTY, PRIVACY, REPRODUCTIVE FREEDOM AND THE BAN ON CONTRACEPTIVES: A CONSTITUTIONAL PERSPECTIVE (PART 1)

The major opposition to the Reproductive Health Bill is anchored on the provisions involving artificial contraceptives. Those who condemn the bill espouse the view that contraceptives are intrinsically evil and making them readily available would promote immorality and promiscuity. Moreover, it is contended that by making contraceptives accessible to the masses would wittingly or unwittingly justify abortion. Contraceptives, they say, can be used as abortifacient to curtail life thus subverting the right to life of the innocent and helpless. In fact there is a recent move in the Senate led by Senate President Juan Ponce Enrile for the enactment of the Protection of the Unborn Child Act. Senate Bill No. 2497 seeks to counter the RH Bill by prohibiting all forms of contraceptives in the country for the purpose of protecting the unborn from conception.

Interestingly, the proponents of the Reproductive Health Bill vehemently deny that it seeks to legalize abortion. They aver that there is nothing in the proposed measure that provides for the legalization of abortion. On the contrary, they further claim that the bill is pro-life as it will prevent infant and child deaths. In the same vein, the measure seeks larger investments in children’s health and education and better health outcomes for children. Ironically, other religious groups like the Iglesia ni Cristo and the United Church of Christ voiced their support on the RH bill. These religious sects undeniably shun abortion, but still found nothing in the measure which sanctions abortion. For these groups, reproductive health does not necessarily mean abortion and use of contraceptives is not equivalent to killing the innocent.

Frankly, the advent of the Protection of the Unborn Child Act is a welcome development since it accentuates the legal ramification of absolute ban on contraceptives. The Protection of the Unborn Child Act puts in proper perspective the legal position of those against the Reproductive Health bill which is total ban on contraceptives. This is in line with the position taken by most clerics who claim that contraceptives are intrinsically evil. Indeed, at first brush the Protection of the Unborn Act seems laudable insofar as it seeks to protect the unborn, however a more thorough reflection of the means used in achieving its objective would show that it suffers from constitutional infirmity.

It may be recalled that to sustain the validity of any police power measure it must be shown that the interests of the public generally, as distinguished from those of a particular class, require its exercise and the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. In short, there must be a concurrence of a lawful subject and a lawful method.[1] It must also be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded.[2] Consequently, even if the purpose of the law is within the scope of the police power of the State, the same will still be annulled if the means employed contravenes the Constitution. Indeed, as the fundamental and paramount law of the land, no act shall be valid however noble its intentions if it contravenes the Constitution. The Constitution must ever remain supreme and all must bow to its mandate.[3] Accordingly, the lawful objective of any law must be pursued through a lawful method. Absent a lawful means, the police measure must be struck down as it amounts to an arbitrary infringement of private rights.[4] Thus in Association of Small Landowners vs. Secretary of Agrarian Reform[5] the High Court observed:

One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right.

The foregoing disquisition gains significance in view of the fact that the issue(s) involved in this debate goes to the fundamental question of life, liberty and privacy. For at the heart of the controversy over contraceptives lies the fundamental question of whether the State can enact a law denying married couples or unmarried individuals access to contraceptives. Otherwise stated, can the State deprive the individual, married or single, the right to decide matters so fundamental as the question whether to bear or beget a child.

THE RIGHT TO LIBERTY AND REPRODUCTIVE FREEDOM: A CONSTITUTIONAL RIGHT.

Guided by the foregoing considerations, I begin with the proposition that neither the State nor the Church can dictate or impose upon any person what mode of family planning method or methods to pursue. The choice whether to use contraceptives rest primarily on individuals and couples. This is so because the decision to use (or not to use) contraceptives lies within the right to personal liberty and privacy afforded each individual under the fundamental law. It should be underscored that liberty under the Constitution is not confined to freedom from bodily restraint. The Constitution protects “liberty of the person both in its spatial and in its more transcendent dimensions.”[6] Chief Justice Reynato Puno in his concurring opinion in Ang Ladlad LGBT vs. COMELEC[7] explains the concept of liberty thus: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to the liberty protected by the due process clause. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Clearly liberty includes individual decision-making on intimate questions of marriage, procreation, contraception, family relationship, child rearing, and education.[8] As succinctly held in Lawrence v. Texas[9]:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the State.

In fine, liberty embraces reproductive freedom which posits the view that everyone has a right to reproductive self determination-meaning the right to decide for themselves when and how often one becomes a parent or the right to become a parent at all. This is the underlying philosophy that animates the passage of the Reproductive Health Bill. The measure is anchored on the principle that everyone has the right to reproductive self-determination – meaning the right to decide when and how often one becomes a parent or the right not to be a parent at all.[10]


[1] Serrano v. Gallant Maritime Srvices, G.R. No. 167614, March 24, 2009.
[2] White Light Corp. v. City of Manila, G.R. No. 122846, January 29, 2009.
[3] Isagani Cruz, Philippine Political Law, (Central Lawbook Publishing Co.; Quezon City, 2002 Edition), pp. 12-13.
[4] Isagani A. Cruz, Constitutional Law (Central Lawbook Publishing Co; Quezon City, 2003 Edition), p. 56.
[5] Association of Small Landowners vs. Secretary of Agrarian Reform, G.R. No. 78742, July 14, 1989.
[6] Lawrence v. Texas, 539 U.S. 558 (2003)
[7] Ang Ladlad LGBT v. COMELEC, G.R. No. 190582, April 8, 2010.
[8] City of Manila et. al. v. Perfecto A.S. Laguio, Jr., et. al., G.R. No. 118127, April 12, 2005.
[9] Supra, note 6.
[10] See Explanatory Note of the “The Reproductive Health and Population and Development Act of 2010. This is the version of Albay Representative Edcel Lagman.

ED.NOTE: The author,Atty. Ernani Diaz Bonoan is a partner of the Rebolos, Sanchez & Bonoan Law Office in Cagayan de Oro City.