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.