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.