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Protection of Conscience Project

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Service, not Servitude
Legal Commentary

Supreme Court of the Philippines

The Responsible Parenthood and Reproductive Health Act of 2012

Extracts of opinions supporting freedom of conscience

April, 2014

Mariano C. Del Castillo

[P. 39] 3.b- Free Exercise Clause vis-a-vis the Duty to Inform [Section 23(a)(1)] and the Duty to Refer [Section 23(a)(3)]

I shall jointly discuss the constitutional validity of the duty to inform and duty to refer under the RH Law because they are intricately related to each other. The ponencia ruled that the duty to inform and duty to refer imposed on the conscientious objector is unconstitutional for being violative of the Free Exercise of Religion Clause, to wit:

Resultantly, the Court finds no compelling state interest which would limit the free exercise clause of the conscientious objectors, however few in number. Only the prevention of an immediate and grave danger to the security and welfare of the community can justify the infringement of religious freedom. If the government fails to show the seriousness and immediacy of the threat, State intrusion is constitutionally unacceptable. . .

***

[P. 40]  I agree that the duty to refer, under pain of penal liability, placed on the conscientious objector is unconstitutional, however, I find that the conscientious objector's duty to inform is constitutional.

To place the Free Exercise of Religion Clause challenge in its proper context, it is necessary to distinguish two key concepts in the RH Law:

(1) the duty to inform, and

(2) the duty to refer.

The main provisions42 on the duty to inform and duty to refer vis-a-vis the conscientious objector is found in Section 23(a)(1) in relation to 23(a)(3) of the RH Law, viz:

SEC. 23. Prohibited Acts. - The following acts are prohibited: (a) Any health care service provider, whether public or private, who shall:

(1) Knowingly withhold information or restrict the dissemination thereof, and/or intentionally provide incorrect information regarding programs and services on reproductive health including the right to informed choice and access to a full range of legal, medically-safe, non-abortifacient and effective family planning methods;

xxx

[P. 41] (3) Refuse to extend quality health care services and information on account of the person's marital status, gender, age, religious convictions, personal circumstances, or nature of work: Provided, That the conscientious objection of a health care service provider based on his/her ethical or religious beliefs shall be respected; however, the conscientious objector shall immediately refer the person seeking such care and services to another health care service provider within the same facility or one which is conveniently accessible: Provided, farther, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344, which penalizes the refusal of hospitals and medical clinics to administer appropriate initial medical treatment and support in emergency and senous cases;

The duty to inform is embodied in the above-quoted Section 23(a)(1), which penalizes a public or private health care service provider for:

(1) knowingly withholding information or restricting the dissemination of information, and/or

(2) intentionally providing incorrect information; where "information" pertains to the programs and services on reproductive health including the right to informed choice and access to a full range of legal, medically-safe, non-abortifacient and effective family planning methods.

This provision, thus, seeks to ensure that all persons, who are qualified to avail of the benefits provided by the law, shall be given complete and correct information on the reproductive health programs and services of the government under the RH Law. It does not provide any exception to the duty to inform. Thus, a conscientious objector is mandated to provide complete and correct information even if this will include information on artificial contraceptives to which he or she objects to on religious grounds. Otherwise, he or she shall suffer the penal liability under the law.

The duty to refer, on the other hand, is provided in the proviso of Section 23(a)(3), which is likewise quoted above. This provision penalizes a public or private health care service provider for refusing to extend quality health care services and information on account of a person's marital status, gender, age, religious convictions, personal circumstances, or nature of work. However, it respects the right of the conscientious objector by permitting him or her to refuse to perform or provide the health care services to which he or she objects to on religious or ethical grounds provided that he or she immediately refers the person seeking such care and services to another health care service provider within the same facility or one which is conveniently accessible. As an exception to the exception, the conscientious objector cannot refuse to perform or provide such health care services if it involves an emergency condition or serious case under Republic Act No. 8344.

[P. 42] It should be noted that the first sentence of Section 23(a)(3) of the RH Law refers to the refusal to extend quality health care services and information. However, the proviso in the aforesaid section, which imposes the duty to refer on the conscientious objector, is limited to referring the person to another health care service provider for purposes of availing health care services only, not health care services and information. The implication is that the conscientious objector is required to provide complete and correct information, and, in the event that the person asks for health care services that the conscientious objector objects to on religious or ethical grounds, the conscientious objector has the duty to refer the person to another health care service provider. This interpretation is in accord with the wording of Section 23(a)(1) of the RH Law, which provides no exceptions to the duty to inform.

It should be further noted, and not insignificantly, that Section 23(a)(3) of the RH Law does not state that the conscientious objector should refer the person to another health care service provider who can perform or provide the heath care services to which the conscientious objector objects to on religious or ethical grounds. Thus, a literal reading of this provision would permit the conscientious objector to refer the person to another health care service provider who is himself a conscientious objector. The IRR attempts to fill this ambiguity in Section 5.24(b) to (e) thereof, viz:

Section 5.24 Public Skilled Health Professional as a Conscientious Objector. In order to legally refuse to deliver reproductive health care services or information as a conscientious objector, a public skilled health professional shall comply with the following requirements:

xx xx

b) Extraordinary diligence shall be exerted to refer the client seeking care to another skilled health professional or volunteer willing and capable of delivering the desired reproductive health care service within the same facility;

c) If within the same health facility, there is no other skilled health professional or volunteer willing and capable of delivering the desired reproductive health care service, the conscientious objector shall refer the client to another specific health facility or provider that is conveniently accessible in consideration of the client's travel arrangements and financial capacity;

d) Written documentation of compliance with the preceding requirements; and

[P. 43] e) Other requirements as determined by the DOH.

In the event where the public skilled health professional cannot comply with all of the above requirements, he or she shall deliver the client's desired reproductive health care service or information without further delay.xx x

This notwithstanding, and for purposes of the succeeding discussion on the Free Exercise of Religion Clause, the necessary premise is that the duty to refer involves referring the person to another health care service provider who will perform or provide the health care services to which the conscientious objector objects to on religious or ethical grounds. Though this is not explicitly stated in the RH Law, the law must be so reasonably construed given the policy of the law to provide universal access to modern methods of family planning.

As noted earlier, the duty to inform and the duty to refer are intricately related. The reason is that the duty to inform will normally precede the duty to refer. The process of availing reproductive health programs and services under the RH Law may be divided into two phases.

In the first phase, the person, who goes to a health service provider to inquire about the government's reproductive health programs and services under the RH Law, will be provided with complete and correct information thereon, including the right to informed choice and access to a full range of legal, medically-safe, non-abortifacient and effective family planning methods.

In the second phase, after receiving the information, the person would then ordinarily reach a decision on which reproductive health programs and services, if any, he or she wishes to avail. Once he or she makes a decision, he or she now asks the health service provider where and how he or she can avail of these programs or services.

From the point of view of the health care service provider, the first phase involves the transmission of information. Petitioners claim that this act of giving complete and correct information, including information on artificial contraceptives, imposes a burden on a conscientious objector, like a Catholic doctor, because he or she is required to give information on artificial contraceptives which he or she believes to be immoral or wrong.

I disagree.

Petitioners failed to convincingly show that the act of giving complete and correct information, including those on artificial contraceptives, burdens a Catholic doctor's religious beliefs. Note that the law merely requires the health service provider to give complete and correct information. Presumably this can even be done by simply giving the person a handout containing the list of the [P. 44] government's reproductive health programs and services under the RH Law. The valid secular purpose of the duty to inform is readily apparent and the State interest in ensuring complete and correct information is direct and substantial in order that the person may make an informed and free choice.

The law does not command the health service provider to endorse a particular family planning method but merely requires the presentation of complete and correct information so that the person can make an informed choice. A conscientious objector, like a Catholic doctor, is, thus, not compelled to endorse artificial contraceptives as the preferred family planning method. On its face, therefore, there appears to be no burden imposed on the conscientious objector under the duty to inform.

To my mind, to successfully claim that a conscientious objector, like a Catholic doctor, is burdened by the duty to inform, petitioners should have demonstrated that, for a Catholic doctor, the mere mention of artificial contraceptives (what they are and how they work) to the person is immoral under the tenets of the Catholic faith. In the case at bar, petitioners failed to carry this onus. Moreover, after providing the complete and correct information as mandated by the RH Law, there is nothing to prevent the conscientious objector, like a Catholic doctor, from speaking against artificial contraceptives on religious or ethical grounds because the RH Law cannot curtail freedom of speech; the Constitution is deemed written into the law.

For the foregoing reasons, I find that petitioners failed to clearly show that the act of giving complete and correct information on reproductive health programs and services under the RH Law burdens a conscientious objector's religious beliefs. Thus, I find that the duty to inform under Section 23(a)(1) of the RH Law is constitutional even with respect to the conscientious objector. In other words, the conscientious objector has the duty to inform under the aforesaid section.

I now turn to the duty to refer. As already mentioned, I reach an opposite result here. The central reason is that the second phase involves a crucial distinguishing feature from the first phase. In the first phase, the person merely receives the complete and correct information from the health service provider but, in the second case, the person now decides to act on the information. He or she makes a decision to avail of one or more of the government's reproductive health programs and services under the RH Law. In case the person seeks to avail of a program or service which the conscientious objector objects to on religious or ethical grounds, Section 23(a)(3) imposes on the conscientious objector the duty to refer the person to a health service provider who can perform or provide such program and service

[P. 45] This is an entirely different scenario. The person has already made a decision and now seeks to accomplish an act which the conscientious objector considers immoral or wrong on religious or ethical grounds. When the RH Law compels the conscientious objector to make such a referral, under pain of penal liability, the religious or ethical beliefs of the conscientious objector is clearly burdened because he or she is made to either

(1) join in this intention or

(2) aid in the accomplishment of this intention which he or she considers immoral or wrong.

To illustrate, a Catholic doctor, who objects to the use of artificial contraceptives, is compelled to refer a person who seeks such services to another health care service provider who will, in turn, perform or provide services related to artificial contraception. In such a case, the Catholic doctor is effectively commanded to either

(1) join in the intention of the person to use artificial contraceptives or

(2) aid in the accomplishment of this intention.

From another perspective, the Catholic doctor may view the referral as an essential link in the chain of events which would lead to the availment of the person of such artificial contraceptives.

Consequently, in the above scenario, I am of the view that the religious or ethical beliefs of the conscientious objector are clearly burdened by the duty to refer, thus, calling for the application of the test enunciated in Estrada v. Escritor, to wit:

1. The sincerity and centrality of the religious belief and practice;

2. The State's compelling interest to override the conscientious objector's religious belief and practice; and

3. The means the State adopts in pursuing its interest is the least restrictive to the exercise of religious freedom.45

Anent the first test, insofar as the Catholic health service provider is concerned vis-a-vis the use of artificial contraceptives, I find that petitioners have met the sincerity and centrality test. The Catholic Church's teaching on the use of artificial contraceptives as immoral, evil or sin is of time immemorial and well documented. Its sincerity and centrality to the Catholic faith cannot be seriously doubted as a papal encyclical, Humanae Vitae, has even been principally devoted to re-stating or expressing the Catholic Church's teaching on artificial contraceptives, to wit:

[Quotes Humanae Vitae 13 and 14]

[P. 46]  Because petitioners have met the first test, the burden shifts to the government to meet the last two tests in order for the constitutional validity of the duty to refer to pass muster.

[P. 47] Anent the second test, the government failed to establish a compelling State interest to justify the duty to refer under pain of penalty. The purpose of the duty to refer is to facilitate the availment of the government's reproductive health programs and services. That is, it is logically more convenient that, after receiving complete and correct information on the government's reproductive health programs and services from a conscientious objector, the person should be readily referred to another health service provider who can perform or provide the chosen program or service to which the conscientious objector objects to on religious grounds.

The primary State interest, therefore, that the duty to refer serves is the facility of availing such programs and services or, in short, the person's convenience. Put another way, if there were no duty to refer and, thus, the conscientious objector is allowed to say to the person, "Sorry, I do not know of and/or cannot refer you to such a health service provider because I would be helping you to accomplish something that I consider immoral or wrong," then, at most, the person suffers the inconvenience of having to look for the proper health service provider, on his or her own, who can provide or perform the chosen program or service. Plainly, the person's convenience cannot override the conscientious objector's religious freedom; a right founded on respect for the inviolability of the human conscience.47

Anent the third test, which is intimately related to the second test, there are clearly other means to achieve the purpose of the duty to refer. Upon the implementation of the RH Law, through Sections 5.22,48 5.23,49 and 5.2450 of [P. 48] IRR, the government will already be able to identify both conscientious objectors and non-conscientious objectors. It can, therefore, map out an effective strategy to inform all potential patients or target beneficiaries where they can avail of the complete reproductive health programs and services under the RH Law (which refer simply to the identity and location of all non-conscientious objector health service providers). This is well-within the State's administrative and logistical capability given its enormous machinery and the mandate of Section 20 of the RH Law, which provides that:

SEC. 20. Public Awareness. - The DOH and the LGUs shall initiate and sustain a heightened nationwide multimedia-campaign to raise the level of public awareness on the protection and promotion of reproductive health and rights including, but not limited to, maternal health and nutrition, family planning and responsible parenthood information and services, adolescent and youth reproductive health, guidance and counseling and other elements of reproductive health care under Section 4( q). Education and information materials to be developed and disseminated for this purpose shall be reviewed regularly to ensure their effectiveness and relevance.

The information, then, as to which health service provider is not a conscientious objector can easily be disseminated through the information campaign of the government without having to burden the conscientious objector with the duty to refer.

Based on the foregoing, the duty to refer fails to meet the criteria set in Estrada v. Escritor.51 Thus, it is unconstitutional.

[P. 49] Before closing the discussion on the duty to inform and the duty to refer, I wish to highlight the preferred status that religious freedom occupies in the hierarchy of constitutional rights by way of analogy. Let us assume that the State promulgates a law which subsidizes the purchase of weapons due to rising criminality. The law requires store owners, in the business of selling such weapons, to fully inform their buyers of the available weapons subsidized by the government. A store owner is, thus, required to inform a buyer that the following are the government subsidized weapons: knives and guns. The store owner would have no problem acceding to this duty to inform. But suppose, one day, a buyer comes to his store and says that he wants to buy a gun in order to kill or murder his neighbor. The store owner, assuming he acts in accordance with his conscience, would ordinarily refuse to sell the gun. If the law, however, requires the store owner to refer the buyer to another store where the buyer can avail of this gun, despite the latter's motive for buying the gun, would this not impose a burden on the conscience of the store owner?

To a non-believer, the matter of the duty to refer relative to, say, artificial contraceptives may seem too inconsequential to merit constitutional protection. But the Court cannot judge the truth or falsity of a religious belief nor the seriousness of the consequences that its violation brings upon the conscience of the believer. For to the believer, referring a person to a health service provider where the latter can avail of artificial contraceptives may be of the same or similar level as referring a person to a store owner where he can purchase a gun to kill or murder his neighbor. It constitutes a breach of his or her covenant relationship with his or her God, and, thus, affects his or her eternal destiny. That, precisely, is the province of the Free Exercise of Religion Clause. That the believer may not have to choose between his or her earthly freedom (imprisonment) and his or her eternal destination.

In view of the foregoing, I find that the duty to refer imposed on the conscientious objector under Sections 7 and 23(a)(3) of the RH Law is unconstitutional for violating the Free Exercise of Religion Clause. Consequently, the phrase, "Provided, further, That these hospitals shall immediately refer the person seeking such care and services to another health facility which is conveniently accessible," in Section 7 and the phrase, "however, the conscientious objector shall immediately refer the person seeking such care and services to another health care service provider within the same facility or one which is conveniently accessible," in Section 23(a)(3) of the RH Law should be declared void. Consequently, Sections 5.24(b) to (e) and 5.25 of the IRR, which implements the aforesaid provisions of the RH Law, are void.

In another vein, I agree with the ponencia that the last paragraph of Section 5.24 of the IRR is ultra vires because it effectively amends Section 4(n) in relation to Section 23(a)(3) of the RH Law.

[P. 50] Under Section 4(n) of the RH Law, a public health care service provider is defined as follows:

SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:

(n) Public health care service provider refers to:

(1) public health care institution, which is duly licensed and accredited and devoted primarily to the maintenance and operation of facilities for health promotion, disease prevention, diagnosis, treatment and care of individuals suffering from illness, disease, injury, disability or deformity, or in need of obstetrical or other medical and nursing care;

(2) public health care professional, who is a doctor of medicine, a nurse or a midwife;

(3) public health worker engaged in the delivery of health care services; or

 (4) barangay health worker who has undergone training programs under any accredited government and NGO and who voluntarily renders primarily health care services in the community after having been accredited to function as such by the local health board in accordance with the guidelines promulgated by the Department of Health (DOH).

While last paragraph of Section 5.24 of the IRR states:

Provided, That skilled health professionals such as provincial, city, or municipal health officers, chiefs of hospital, head nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the duty to implement the provisions of the RPRH Act and these Rules, cannot be considered as conscientious objectors. (Emphasis supplied)

The above-enumerated skilled health professionals fall within the definition of a "public health care service provider'' under Section 4(n) of the RH Law. Under Section 23(a)(3) of the RH Law, both public and private health service providers may invoke the right of a conscientious objector. The last paragraph of Section 5.24 of the IRR is, thus, void insofar as it deprives the skilled health professionals enumerated therein from the right to conscientious objection.

I also agree with the ponencia that the last paragraph of Section 5 .24 of the IRR is unconstitutional for being violative of the Equal Protection Clause although I find that the proper standard of review is the strict scrutiny test.

The IRR effectively creates two classes with differential treatment with respect to the capacity to invoke the right of a conscientious objector:

(1) skilled health professionals such as provincial, city, or municipal health officers, chiefs of hospital, head nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the duty to implement the provisions of the RH Law and its IRR, and

(2) skilled health professionals not belonging to (1).

Those belonging to the first class cannot invoke the right of a conscientious objector while those in the second class are granted that right

[P. 51] In our jurisdiction, equal protection analysis has generally followed the rational basis test coupled with a deferential attitude to legislative classifications and a reluctance to invalidate a law absent a clear and unequivocal showing of a breach of the Constitution.52 However, when the classification burdens a suspect class or impinges on fundamental rights, the proper standard of review is the strict scrutiny test.53

Under the strict scrutiny test, the government must show a compelling or overriding end to justify either:

(1) the limitation on fundamental rights or

(2) the implication of suspect classes.54

The classification will only be upheld if it is shown to be suitably tailored to serve a compelling State interest.55 Suspect classes include classifications based on race, nationality, alienage or denominational preference while classifications impinging on fundamental rights include those affecting marriage, procreation, voting, speech and interstate travel.56

Here, the classification impinges on the fundamental right of free exercise of religion, as operationalized through the right of a conscientious objector, which the RH Law recognizes and respects. The government must, therefore, show that the differential treatment between the first class and second class of skilled health professionals serves a compelling State interest.

I find that the State has failed to prove how curtailing the right of conscientious objection of those belonging to the first class will further a compelling State interest. One perceptible reason for depriving the right of conscientious objection to those belonging to the first class appears to be the fear that this will paralyze or substantially degrade the effective implementation of the RH Law considering that these skilled health professionals are employed in public health institutions and local government units.

This fear rests on at least two assumptions:

(1) most, if not all, skilled health professionals belonging to the first class are conscientious objectors, and

(2) the State is incapable of securing the services of an adequate number of skilled health professionals who are not conscientious objectors.

Both assumptions have not been proven by the State. And, even if it were so proven, it must be recalled that the right of the conscientious objector is a limited one: he or she may refuse to perform or provide reproductive health services to which he or she objects to on religious grounds. In such a case, the solution is for the person to avail of such services elsewhere. Consequently, the State would now have to show that the inconvenience caused on the part of the person, who must secure such services [P. 52] elsewhere (which could be as near as the doctor in the next room or as far-flung as the doctor in another province or region) overrides the freedom of religion of conscientious objectors belonging to the first class. As earlier noted, it is self-evident that the person's convenience cannot override the freedom of religion of the conscientious objector; a constitutionally protected right predicated on respect for the inviolability of the human conscience. (Even if this inconvenience would entail, for example, added transportation costs, it cannot be seriously argued that one can place a monetary value on the inviolability of the human conscience.)

Hence, I find that the last paragraph of Section 5.24 of the IRR is unconstitutional on equal protection grounds. . .

***

[P. 63] 6- Due Process and Free Speech Clause

I agree with the ponencia that the void for vagueness doctrine is inapplicable to the challenged portions of the RH Law for reasons stated in the ponencia.

However, I find it necessary to discuss in greater detail why the void for vagueness doctrine is not applicable particularly with respect to the duty to inform under Section 23(a)(1) of the RH Law. The reason is that the void for vagueness challenge is inextricably related to freedom of speech which, under the exceptional circumstances of this case, once again requires the Court to take steps to protect this constitutional right pursuant to its expanded jurisdiction and as a penumbra to its power to issue rules for the protection and enforcement of constitutional rights.

[P. 64] As previously discussed, Section 23(a)(1) of the RH Law imposes a duty to inform on both public and private health care service providers:

SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(1) Knowingly withhold information or restrict the dissemination thereof, and/or intentionally provide incorrect information regarding programs and services on reproductive health including the right to informed choice and access to a full range of legal, medically-safe, non-abortifacient and effective family planning methods;

In effect, the law requires that complete and correct information on the government's reproductive health programs and services, including the right to informed choice and access to a full range of legal, medically-safe, nonabortifacient and effective family planning methods, be given to all persons who are qualified beneficiaries under the RH Law. The law and its IRR however, does not define the nature and extent of "complete and correct information." Petitioners claim that, without this definition, the duty to inform should be nullified under the void for vagueness doctrine.

I disagree.

The RH Law enjoys the presumption of constitutionality and should be given a construction which will avoid its nullity. The phrase "[k]nowingly withhold information or restrict the dissemination thereof, and/or intentionally provide incorrect information regarding programs and services" under Section 23(a)(1) of the RH Law should be reasonably and narrowly construed as merely requiring the health care service provider to provide and explain to persons the list of the government's reproductive health programs and services under the RH Law. To illustrate, ifthe government's reproductive health programs and services under the RH Law consists of A, B, C and D, then a health care service provider is required to transmit this information to a person qualified to avail of the benefits under the law.

But it is not as simple as that.

The RH Law itself provides that the individual should be allowed to make a free and informed choice. As a result, the government has set a self-limiting policy that it will not endorse any particular family planning method. Yet, invariably, potential beneficiaries of these programs and services will seek the advice or counsel of health care service providers as to which programs and services they should avail of.

[P. 65] When this occurs, can the government control the opinions that health care service providers will give the potential beneficiaries by limiting the content of such opinions? That is, can the government prevent health care service providers from giving their opinions or controlling the content of their opinions, in favor or against, a particular reproductive health service or program by mandating that only a particular opinion will comply with the "complete and correct information" standard under Section 23(a)(1) of the RH Law?

I submit that the government cannot do so without violating the Free Speech Clause.

The "complete and correct information" standard cannot be construed as covering matters regarding the professional opinions (including the opinions of a conscientious objector on religious or ethical grounds as previously discussed) of health service providers, either for or against, these programs and services because this would constitute an abridgement of freedom of speech through subsequent punishment. The government cannot curtail such opinions without showing a clear and present danger that will bring about the substantive evils that Congress has a right to prevent.69 In the case at bar, there is no attempt on the part of the government to satisfy the clear and present danger test. Consequently, the "complete and correct information" standard under Section 23(a)(1) should be narrowly construed in order not to violate the Free Speech Clause. As earlier noted, the only way to save it from constitutional infirmity is to construe the "complete and correct information" standard as referring to information containing the list of the government's reproductive health programs and services under the RH Law. Anything beyond that would transgress the free speech guarantee of the Constitution.

Indubitably, an expansive and broad intetpretation of the "complete and correct information" standard will give the government the unbridled capacity to censor speech by only allowing opinions on the reproductive health programs and services under the RH Law which it favors. The government can use the "complete and correct information" standard to force health care service providers to endorse the former' s preferred family planning method despite the clear policy of the RH Law granting free and informed choice to the individual. This cannot be done without violating the Free Speech Clause.

Of course, this would mean that health care service providers, who are for or against certain programs and services under the RH Law, will be able to influence potential beneficiaries over which family planning method or means to avail of. This is the price of living in a democratic polity, under our constitutional order, where opinions are freely expressed and exchanged. The Constitution [P. 66] guarantees freedom of speech and, thus, tilts the balance in favor of the individual's right to free speech unless the State can show that controlling the individual's speech can pass the clear and present danger test. Here, as aforestated, the government has failed to satisfy this test. If the government desires to push a preferred family planning method, it has the full machinery of the State to back up its information campaign under Section 20 of the RH Law. However, it cannot force individual health care service providers, under pain of penal liability, to express opinions that are favorable to certain reproductive health programs and services under the RH Law. Government may try to convince health care service providers, but not force them.

The above disquisition should not, of course, be taken to mean that health care service providers shall be exempt from their professional or ethical responsibilities which they owe to their patients and which may result to administrative, civil or criminal liabilities of the former based on their code of ethical conduct not unlike the code of ethics for lawyers. But, unavoidably, the professional opinion or advice of health care service providers will be sought by potential beneficiaries under the RH Law and, in that instance, the "complete and correct information" standard cannot be utilized by the State to curtail the health care service provider's freedom of speech.

Thus, I find that the "complete and correct information" standard under Section 23(a)(1) of the RH Law and, hence, the duty to inform (as discussed in a previous subsection) is constitutional only insofar as it requires health care service providers to provide a list of the government's reproductive health programs and services under the RH Law to qualified beneficiaries. Further, given the aforediscussed peculiar circumstances of this case and in order to adequately protect the right to free speech of health care service providers, it is necessary for the Court to issue an order directing the DOH to generate the complete and correct list of the government's reproductive health programs and services under the RH Law which will serve as the template for the "complete and correct information " standard and, hence, the duty to inform under Section 23(a)(1) of the RH Law. The DOH should be directed to distribute this template to all health care service providers covered by the RH Law. This will forestall any confusion on the nature and scope of the "complete and correct information" standard which is necessary given the penal clause under the duty to inform.


Notes

42.  Estrada v. Escritor, 455 Phil. 4 11 (2003).

***

45.  Id. at 600.

*** 

47.  Bernas, The 1987 Constitution of the Republic of the Phjlippines: A Commentary (2009) at 330.

48.  Section 5.22 Exemption of Private Hospitals from Providing Family Planning Services. Private health facilities shall provide a full range of modem family planning methods to clients, unless the hospital is owned and operated by a religious group, or is classified as a non-maternity specialty hospital, as part of their annual licensing and accreditation requirements.
In order to receive exemption from providing the full range of modem family planning methods, the health care facility must comply with the following requirements:

a) Submission of proof of hospital ownership and management by a religious group or its status as a non-maternity specialty hospital;

b) Submission to the DOH of an affidavit stating the modem family planning methods that the facility refuses to provide and the reasons for its objection;

c) Posting of a notice at the entrance of the facility, in a prominent location and using a
clear/legible layout and font, enumerating the reproductive health services the facility does not provide; and

d) Other requirements as determined by the DOH.

Within sixty (60) days from the effectivity of these Rules, the DOH shall develop guidelines for the implementation ofthls provision.

49.  Section 5.23 Private Skilled Health Professional as a Conscientious Objector. ln order to legally refuse to deliver reproductive health care services or information as a conscientious objector, a private skilled health professional shall comply with the following requirements:

a) Submission to the DOH of an affidavit stating the modem family planning methods that he or she refuses to provide and his or her reasons for objection;

b) Posting of a notice at the entrance of the clinic or place of practice, in a prominent location and using a clear/legible font, enumerating the reproductive health services he or she refuses to provide; and

c) Other requirements as determined by the DOH.

Within sixty (60) days from the effectivity of these Rules, the DOH shall develop guidelines for the implementation of this provision.

50.  Section 5.24 Public Skilled Health Professional as a Conscientious Objector. In order to legally refuse to deliver reproductive health care services or information as a conscientious objector, a public skilled health professional shall comply with the following requirements:

a) The skilled health professional shall explain to the client the limited range of services he/she can provide;

b) Extraordinary diligence shall be exerted to refer the client seeking care to another skilled health professional or volunteer willing and capable of delivering the desired reproductive health care service within the same facility;

c) If within the same health facility, there is no other skilled health professional or volunteer willing and capable of delivering the desired reproductive health care service, the conscientious objector shall refer the client to another specific health facility or provider that is conveniently accessible in consideration of the client's travel arrangements and financial capacity;

d) Written documentation of compliance with the preceding requirements; and

e) Other requirements as determined by the DOH.

In the event where the public skilled health professional cannot comply with all of the above requirements, he or she shall deliver the client's desired reproductive health care service or information without further delay.

Provided, That skilled health professionals such as provincial, city, or municipal health officers, chiefs of hospital, head nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the duty to implement the provisions of the RPRH Act and these Rules, cannot be considered as conscientious objectors.

Within sixty (60) days from the effectivity of these rules, the DOH shall develop guidelines for the implementation of this provision.

51.  Supra note 44.

52.  Central Bank Employees Assoc., Inc. v. Bangko Sentral ng Pilipinas, 487 Phil. 531 , 583-584 (2004).

53.  Id. at 585.

54.  Id. at 644. (Panganiban, J. dissenting)

55.  Id.

56.  Id. at 645-646.

***

69.  See Cruz, Constitutional Law (2007), at 2 13-2 I 5.

 

 


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