Philippines "RH Bill" of 2011: the shape of things to come?

The Responsible Parenthood, Reproductive Health and Population and Development Act of 2011

April, 2011

Sean Murphy*

The bill . . .  includes some provisions that are not specific to health care workers and institutions.  However, they affect fundamental freedoms of all citizens, and they are indicative of the broader social, legal and political environment within which the law will operate if the bill passes.

Commonly known as the Reproductive Health Act (the RH Act or RH Bill), the consolidated bill now being debated in the Philippines is an amalgamation of earlier proposals, including The Reproductive Health and Population and Development Act of 2010 (HB 0000096) and the Act Providing for a National Policy on Reproductive Health and Population and Development (SB 2378).1

Background

Health care delivery

Health care is delivered in the Philippines by both the public and private sector. In 2005, 702 hospitals and health facilities were operated by the government2 and 1130 by the private sector,3 including religious denominations.  Citizens are free to obtain private health insurance, but all must enrol in the National Health Insurance Program (NHIP),4 which is ultimately to become "one universal health insurance program for the entire population."5 

The Program is administered by the Philippine Health Insurance Corporation (PhilHealth), a government owned and controlled corporation.  PhilHealth establishes and monitors standards and, within the terms of the National Health Insurance Act of 1995, determines policies for payment of claims.6  It also accredits health care institutions and practitioners and processes and reimburses claims for health care provided by them.  About 90% of health care providers have been accredited,7 a  fact that incidentally demonstrates the importance and influence of the public health insurance plan despite the numerical predominance of private facilities.

Population policies

. . .government involvement in family planning and population control has become part of the normal social, political and health care landscape in the Philippines.

The ground for the bill has been cleared over a period of forty years by laws and population management policies and programmes aimed at reducing fertility in the Philippines.  While apparently ineffective in reducing population growth, the programmes have resulted in the establishment of a national infrastructure of  ministries, offices and officials responsible for implementing government population and family planning policies.  Foremost among them is the Population Commission (POPCOM) and related agencies, including the Department of Health (DOH).  Thus, government involvement in family planning and population control has become part of the normal social, political and health care landscape in the Philippines. [ Appendix "A"]

Religious considerations

. . .the bills in their present forms would likely cause significant problems for Catholic health care facilities and an undetermined number of Catholic health care workers.  Other religious groups would be affected to the extent that they share the outlook of the Catholic Church on the ethics of reproductive health care.

Over 80% of Filipinos identify themselves as Catholic, which probably accounts for the fact that abortion is illegal in the country and the constitution requires that the state protect the lives of both mother and unborn child from the moment of conception.8  However, reported attitudes and practices indicate widespread rejection rather than acceptance of Catholic teaching on contraception and sterilization.[Appendix "A"] 

Thus, Catholics who adhere to Church teaching on these subjects, while they may have the support of their bishops, are probably minorities within the health care professions and within their faith communities.  On the other hand, the number of hospitals operated by the Catholic and bound by its pastoral directives against contraception and contraceptive sterilization is not insignificant.  [Appendix "A"] 

It will be seen that passage of the bill in its present form would likely cause significant problems for Catholic health care facilities and an undetermined number of Catholic health care workers.  Other religious believers and facilities would be affected to the extent that they share the outlook of the Catholic Church on the ethics of reproductive health care.

The "RH Bill" of 2011: general provisions

The bill now before the 15th Congress includes some provisions that are not specific to health care workers and institutions.  However, they affect fundamental freedoms of all citizens, and they are indicative of the broader social, legal and political environment within which the law will operate if the bill passes.  Among these:

• The law will establish "reproductive health" as "a universal basic human right," though such a right is not recognized elsewhere [Comment 1], and the claims would make the statute internally inconsistent [Comments 7, 12, 15, 16, 17, 19 and 20]
  
  
• The law will establish a legal right to artificial reproduction by single persons [Comments 1, 3, 7, 12, 15, 16, 17, 19 and 20 ], including those who claim a "gender identity" unrelated to their natural sex [Comment 2, 13].
  
  
• The state will be expected to guarantee and advance the rights the law purports to grant, and to eliminate "discrimination."[Comment 3, 4]
  • It may suppress religious or moral expressions, policies or practices that are deemed to "infringe" the exercise of purported 'rights' [Comment 4]
  
  
•  The law will formally legitimize government control of "reproductive health care" as a means to realize political or ideological goals. [Comments 2, 9]
  
  
• A "certificate of compliance" issued by the local Family Planning Office will be required to obtain a marriage licence [Comment 24]
  
  

 The "RH Bill" of 2011: specific provisions

An early incarnation of one of the earlier bills would have seen the imprisonment of health care workers who declined to provide contraceptive sterilization for reasons of conscience, and Catholic institutions would have been compelled to provide or pay for contraceptives and sterilization to their employess.9 Such flagrantly coercive measures do not appear in the present bill, but their absence does not betoken an attitude of accommodation.

'Rights' claims

In the first place, the bill claims that reproductive health care is a "human right" [Comment 1].  While this claim is inherently problematic and also gives rise to very troublesome internal inconsistencies in the bill [Comments 3, 7, 12, 15, 16, 17, 19 and 20], it creates even more serious problems for the exercise of freedom of conscience or religion. 

. . .the general claim of rights . . .would, if accepted, leave no principled basis upon which to exempt any health care institution or health care worker from a requirement to provide contraception, contraceptive sterilization, or even potentially embryocidal or abortifacient drugs and devices.

For if it really were a "human right" to be given contraceptives or contraceptive sterilization, it would follow that anyone who refused to provide them would be guilty of a human rights violation.  Moreover, it is contrary to sound public policy to permit violations of authentic human rights based on appeals to religious or conscientious convictions.  We do not, for example, admit a defence of religious freedom in cases of racial discrimination, nor do we accommodate racial prejudices.  Thus, the general claim of rights made in the bill would, if accepted, leave no principled basis upon which to exempt any health care institution or health care worker from a requirement to provide contraception, contraceptive sterilization, or even potentially embryocidal or abortifacient drugs and devices.[Comments 15, 17]

This reasoning has been accepted elsewhere.  For example, the Ontario Human Rights Commission holds that "secular service providers cannot claim that the performance of their job functions is an expression of their deeply held religious beliefs,"10 and is of the view "that doctors, as providers of services that are not religious in nature, must essentially 'check their personal views at the door' in providing medical care."11

Note that one of the requirements for accreditation by the Philippine Health Insurance Corporation is "recognition of the rights of patients."12 Thus, the declaration of rights in the RH Bill would enable PhilHealth to deny accreditation to any health care facility that refused to comply with the Act for reasons of conscience.

'Discrimination'

Within the context of rights claims and accusations of discrimination, it is important to note that the bill will make it an offence to "[r]efuse to extend health care services and information on account of the person's marital status, gender, sexual orientation, age, religion, personal circumstances, or nature of work."  Activists have alleged that physicians who, for reasons of conscience, decline to provide contraceptives or restrict them to married persons, or who refuse to provide artificial reproduction for single people and patients identifying themselves as homosexuals, are guilty of professional misconduct and discrimination.13 [Comment 35] It is reasonable to believe that such accusations will be made in similar circumstances against Filipino health care workers if the RH Bill passes in its present form.

 This provision lends itself to partisan misuse. . . Neither the quality of public discourse nor the provision of health care will be markedly improved by giving "reproductive rights" activists the opportunity to send those who disagree with them to jail.

Providing 'information'

It will also become an offence to withhold or restrict the dissemination of information concerning "reproductive health" and access to reproductive health services, or to deliberately provide "incorrect information" about such services  [Comment 34].  This provision lends itself to partisan misuse.  Reciprocal accusations of spreading "incorrect information" are frequently heard in heated polemics about "reproductive health care,"  and objectors have been accused of withholding information simply because they declined to provide contact information for providers of morally controversial services.

If dissemination of incorrect information or improper withholding of information is a problem in a given case, it would be safer, more productive, and less inflammatory to deal with it through remedial or disciplinary measures after a careful investigation by professional authorities.  Neither the quality of public discourse nor the provision of health care will be markedly improved by giving "reproductive rights" activists the opportunity to send those who disagree with them to jail.

Unspecified agendas

Interpreted broadly, these sections provide a general warrant for a wide range of government action.  The bill also politicizes the concept of reproductive health, so that state control of "reproductive health care" can become a means to realize political or ideological goals.

The Department of Health and its local offices will take the lead in enforcing the Act, and, in addition to specified functions, is authorized to undertake any functions it deems necessary to attain its purposes.[Comment 31]  The Commission on Populationon (POPCOM) will act as a kind of super-secretariat.  Under the terms of the bill it will integrate a reproductive health and population "agenda" into the fabric of the nation [Section 25].   It is further charged "to ensure active and full participation of the private sector and the citizenry through their organizations," something which goes beyond mere "facilitation."  This appears to envisage a form of universal conscription and to permit coercive measures to ensure compliance. [Comment 33]

Interpreted broadly, these sections provide a general warrant for a wide range of government action.  Further, the bill politicizes the concept of reproductive health, so that state control of "reproductive health care" can become a means to realize political or ideological goals. [Comments 2, 9] These parts of the bill are likely to present a serious challenge to fundamental freedoms if it becomes law.

Universal compliance and enforcement

• All accredited health facilities, including denominational institutions, will be made to provide contraceptives, potential embryocides,  abortifacients, and contraceptive sterilization, or assist patients who seek them. [Comments 7, 14, 15, 17, 21, 31, 36]
  
  
• Section 21 of the bill would force employers of 200 people or more to provide employees  with contraceptives, potential embryocides,  abortifacients, and contraceptive sterilization.  There are no exceptions for employers who object to such services for reasons of conscience: no exceptions even for denominational employers.
  • The Bill's sponsors have requested that this section be deleted.  However, it seems clear that they intend to use Section 33 of the RH bill and the Labour Code to do this nonetheless. [Comment  26]
    
    
• The government will have a duty to 'ensure access' to morally controversial services, products and procedures.  This is likely to  conflict with freedom of conscience among health care workers.[Comments 3, 7, 28]
  
  
• The state may impose training requirements that will exclude conscientious objectors from health care professions.[Comments 25, 26, 29]
  
  
• Professional regulatory authorities will be given additional powers that may be used to restrict the exercise of freedom of conscience and discipline or expel health care workers who object to state policies for reasons of conscience.  [Comment 30]
  

The "RH Bill" of 2011: limited or worthless exemptionsns

As previously noted, the rights claims made in the bill leave no principled basis upon which to exempt any health care institution or health care worker from a requirement to provide contraception, contraceptive sterilization, or even potentially embryocidal or abortifacient drugs and devices.

. . .  the exercise of freedom of conscience is made impossible or ridiculous, and exposes those who claim the exemption to prosecution for human rights violations.  It is not clear whether this parts of the bills has been deliberately constructed as an obstacle to conscientious objection, or has simply been badly drafted. 

Section 28(3) contains the only provisions for accommodation of freedom of conscience or religion.  Many of the procedures and services identified in the bills are morally controversial, but this section does not allow religious or ethical objections to any of them.  [Comments 35, 36] Instead, it allows health care workers and institutions to claim an exemption only if they assert that they have refused to provide health care or information because of a patient's marital status, gender, sexual orientation, age, religion, personal circumstances, or nature of work.  In other words, the bill offers accommodation only to those willing to face denunciation for unjust discrimination.

Conscientious objection normally occurs because a health care worker is unwilling to be morally complicit what he believes to be in a wrongful act, not because of a personal characteristic of the patient.  A physician who, for moral reasons, refuses to perform contraceptive sterilization does so because he believes it to be wrong, not because his patient is a man or woman.  Thus, the accommodation permitted by the bill would be worthless in most of the cases in which it would be needed.

Even if a personal characteristic is related to an objection (as in the case of refusing contraceptives to an unmarried patient), the objection is not to the patient.  Instead, the objector seeks to avoid vicarious moral responsibility for something done by the patient (extra-marital sex).  An objector willing to risk public obloquy and prosecution might claim an exemption  in such a case, but would then be required to refer the patient to a willing colleague.  However, referral and other forms of facilitation also raise the problem of complicity, and objectors may find the requirement unacceptable.

Thus, the exercise of freedom of conscience is made impossible or ridiculous, and exposes those who claim the exemption to prosecution for human rights violations.  It is not clear whether this part of the bill has been deliberately constructed as an obstacle to conscientious objection, or has simply been badly drafted. 

The shape of things to come?

The RH Bill is supported by the Center for Reproductive Rights (CRR), a powerful American activist organization has been involved in "reproductive rights" litigation in the Philippines.14  Once described in internal documents15 as organization "comprised largely of economically advantaged white women,"16 the Center has a worldwide network of associates dedicated to achieving its objectives.  Among them is the legal enforcement of what it describes as inalienable sexual rights.¹⁷

The ultimate goal of the CRR is to establish what it calls "hard norms" - treaty-based international laws¹⁸ that recognize access to abortion as a fundamental human right -even though internal memos demonstrate that it is aware that no such right exists.¹⁹  It plans to develop a "culture of enforcement" that will compel governments to respect this purported 'right'²⁰ and enforce it against third parties - physicians and other health care workers.²¹  The Center works to suppress the exercise of freedom of conscience by health care workers and to prohibit the exercise of freedom of conscience and religion by religious denominations operating health care facilities.22

. . .the RH Bill promises much more in this respect than could be hoped for in the United States. . . where attacks on freedom of conscience and religion would be strongly opposed.  . . .the suppression of the freedoms of denominational health care institutions of the sort found in this bill has been soundly rejected by the European Union.

While the RH Bill of 2011 explicitly affirms that abortion is illegal in the Philippines, in every other respect it is consistent with the Center's goals.  Indeed, the bill promises much more in this respect than could be hoped for in the United States, the Center's homeland, where attacks on freedom of conscience and religion would be strongly opposed.  It is also noteworthy that the suppression of the freedoms of denominational health care institutions of the sort found in this bill has been soundly rejected by the European Union. [For details of the proposal for suppression of freedom of conscience, see PACE Resolution . . .Endangers Freedom of Conscience of Medical Practitionerss; for decision, see  Resolution 1763 (2010): The right to conscientious objection in lawful medical care]

Elsewhere, however, the passage of the RH Bill would set a precedent that the Center and its global allies would surely exploit, and it is not unlikely that similar bills are in preparation elsewhere.  It is thus reasonable to believe that the Philippines RH Bill of 2011 presents, perhaps only in outline, the shape of things to come.

Notes

1.  Congressman Edcel Lagman introduced the Responsible Parenthood and Population Management Act of 2005 (House Bill 3773) in the 13th Congress.39  During the 14th Congress, Lagman introduced The Reproductive Health and Population and Development Act of 2008 (HB 5043) to the House of Representatives.  It was largely reproduced in a similar and concurrent bill in the Senate (Senate Bill No. 3122), but neither bill passed.

2.  Philippines Department of Health, Bureau of Health Facilities and Service, Distribution of Licensed Government Hospitals and Other Health Facilities by Service Capability/Authorized Beds, by Center for Health Development, by Province/City (2005) (Accessed 2010-09-30)

3.  Philippines Department of Health, Bureau of Health Facilities and Service, Distribution of Licensed Private Hospitals and Other Health Facilities by Service Capability/Authorized Beds, by Center for Health Development, by Province/City (2005) (Accessed 2010-09-30)

4.  Republic Act 7875- National Health Insurance Act of 1995, Section 1 (l), Section 6 (Accessed 2010-09-17)

5.  Republic Act 7875- National Health Insurance Act of 1995, Section 5 (Accessed 2010-09-17)

6.  Philippine Health Insurance Corporation, Promoting Quality Health Care in the Philippines.  (Accessed 2010-09-18).  Section 10 of the Act lists services deemed "medically necessary or appropriate" and Section 11 lists those that are excluded from coverage, subject to actuarial investigations by the Corporation.

 7.  Philippine Health Insurance Corporation, Promoting Quality Health Care in the Philippines.  (Accessed 2010-09-18). 

8.  The 1987 Constitution of the Republic of the Philippines,, Article II, Section 12  (Accessed 2010-09-29)

9.  Catholic Family and Human Rights Institute,  "Family Planning Bill in Philippines Paving Way for Legalized Abortion." Friday Fax, Volume 8, Number 19, 29 April, 2005

10.   Submission of the Ontario Human Rights Commission to the College of Physicians and Surgeons of Ontario regarding the draft policies relating to establishing and ending physician-patient relationships (14 February, 2008) (Accessed 2010-09-30)

11.  Submission of the Ontario Human Rights Commission to the College of Physicians and Surgeons of Ontario Regarding the draft policy, "Physicians and the Ontario Human Rights Code." (Accessed 2010-09-30)   The professional regulatory authority for physicians drafted a policy to comply with this demand, but removed the most contentious language after an outcry from the public and the medical profession. See Responses to Physicians and the Ontario Human Rights Code 

12.  Republic Act 7875  National Health Insurance Act of 1995, Section 33(e): Minimum requirements for accreditation. (Accessed 2010-09-18)

13.  Canning, Cheryl, "Doctor's faith under scrutiny: Barrie physician won't offer the pill, could lose his licence." The Barrie Examiner, 21 February, 2002.

Gold, Polo Black, "California Court comes out: the bioethics of Benitez."  The Hastings Centre, Bioethics Forum, 22 August, 2008 (Accessed 2010-09-30)

"A physician's denial of services or refusal to provide a woman with information relating to contraception or abortion, for example, would be discriminatory based on sex, as only women can become pregnant."  Submission of the Ontario Human Rights Commission to the College of Physicians and Surgeons of Ontario regarding the draft policies relating to establishing and ending physician-patient relationships (14 February, 2008) (Accessed 2010-09-30)

14.  Center for Reproductive Rights, A right to contraception in the Philippines (Accessed 2010-09-30); The RH bill:Ending Manila City's war on women. (Accessed 2010-09-22)

15.  CRR documents obtained by the Catholic Family and Human Rights Institute (CFAM) were entered in the United States Congressional Record (p. E2535 to E2547) on 8 December, 2003, to forestall efforts by the Center to suppress dissemination of the documents through litigation. They are available on the Project website. CFAM, "Secret Memos Reveal Worldwide Pro-Abortion Legal Strategy,"  Friday Fax, 5, December, 2003.  Vol. 6, No. 50 

The documents cited herein are:

• International Legal Program Summary of Strategic Planning: Through October 31, 2003 (E2535)
  • ILPS Memo # 1- International Reproductive Rights Norms: Current Assessment (E2535-E2538);
  • ILPS Memo #2- Establishing International Reproductive Rights Norms: Theory of Change (E2538-E2539).
• Domestic Legal Progam Summary of Strategic Planning Through October 31, 2004 (E2539)
  • DLPS Memo #1- Future of Traditional Abortion Litigation (E2539-2540);
  • DLPS Memo #2- Report to Strategic Planning Participants From Systematic Approach Subgroup (E2540-E2541).
  • DLPS Memo #3- Report to Strategic Planning Participants From "Other Litigation" Subgroup (E2541-E2542).
    
• Program Strategies and Accomplishments (E2543)
• The Center for Reproductive Rights: Summary and Synthesis of Interviews (E2543-2546)
• The Center for Reproductive Rights Board of Directors - Primary Affiliation Information (E2547)

16.  Which the "Other Litigation Subgroup" believed undermined the credibility of the CRR with respect to the interests of "women of colour." DLPS Memo #3, E2541) One of the Center's trustees also expressed concern that much of the funding from individuals was coming from donors over 60 years old ( The Center for Reproductive Rights: Summary and Synthesis of Interviews, E2546)

17.  ". . .both the ICPD Programme of Action and the Beijing PFA reflect an international consensus recognizing the inalienable nature of sexual rights." ILPS Memo # 1, 2537

18.  "Legally binding or ''hard'' norms are norms codified in binding treaties such as the International Covenant on Civil and Political Rights (ICCPR) or the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)" ILPS Memo # 1, E2535

19.  ". . . there is no binding hard norm that recognizes women's right to terminate a pregnancy. To argue that such a right exists, we have focused on interpretations of three categories of hard norms: the rights to life and health; the right to be free from discrimination; those rights that protect individual decision-making on private matters." ILPS Memo #1, E2536

20.  "The ILP's overarching goal is to ensure that governments worldwide guarantee reproductive rights out of an understanding that they are legally bound to do so." International Legal Program Summary of Strategic Planning: Through October 31, 2003 (E2535)

"Our goal is to see governments worldwide guarantee women's reproductive rights out of recognition that they are bound to do so." ILPS Memo #1, E2537; ILPS Memo # 2, E2538.

"The Center needs to continue its advocacy to ensure that women's ability to choose to terminate a pregnancy is recognized as a human right." ILPS Memo # 2, E2539

"Advocates use of enforcement mechanisms can help cultivate a "culture" of enforcement . . ." ILPS Memo #2, E2539

Pursuing the notion that abortion is part of "the fundamental rights strand of equal protection" is one of the suggestions in the report of the "Other Litigation" Subgroup, DLPS Memo #3, E2540. To establish abortion as a "fundamental" right would give it precedence over less "fundamental" rights in cases of conflict.

21. The norms offer "a firm basis for the government's duties, including its own compliance and its enforcement against third parties." ILPS Memo #2, E2538

22.  Letter from Wanda Nowicka (ASTRA) and Christina Zampas (CRR) to the E.U. Network of Independent Experts on Fundamental Rights, 12 October, 2005. (Accessed 2010-10-01)

Letter from Wanda Nowicka (ASTRA) and Christina Zampas (CRR) to the European Commission (Androulla Vassiliou and Robert Madelin) 24 April, 2009. (Accessed 2010-10-01)