Philippines RH Act: Rx for Controversy
Diatribe by Philippines' President turns back the clock
16 September, 2019
Sean Murphy*
Full Text
In June, 2019, Philippines President Rodrigo Duterte blamed the Catholic Church for obstructing government plans to reduce the country's birth rate and population. "They think that spewing out human beings by the millions is a gift from God," he claimed, adding that health care workers should resign if they are unwilling to follow government policy on population control for reasons of conscience.
Duterte's authoritarian diatribe clashes with a ruling of the Supreme Court of the Philippines and turns the clock back to times of harsh and extreme rhetoric when the current law (commonly called the RH Act) was being developed. The RH Act was the product of over fourteen years of public controversy and political wrangling. It was of concern when it was enacted because it threatened some conscientious objectors with imprisonment and fines.
In January, 2013, the Project reviewed the Act in detail. Project criticisms about the law's suppression of freedom of conscience were validated in April, 2014, when the Supreme Court of the Philippines struck down sections of the law as unconstitutional.
Given the long history of attempts at legislative coercion in the Philippines and President Duterte's obvious hostility to freedom of conscience and religion in health care, the Project's 2013 review of the RH Act is here updated and republished.
Assuming that the Philippines government's concern about population growth in the country is justified, it does not follow that it is best addressed by the kind of state bullying exemplified by President Duterte's ill-tempered and ill-considered eruption. Aside from the government's enormous practical advantage in its control of health care facilities, it has at its disposal all of the legitimate means available to democratic states to accomplish its policy goals. Not the least of these is persuasive rational argument, an approach fully consistent with the best traditions of liberal democracy, and far less dangerous than state suppression of fundamental freedoms of conscience and religion.
The Responsible Parenthood and Reproductive Health Act of 2012
Project Comments
In June, 2019, Philippines President Rodrigo Duterte blamed the Catholic Church for obstructing government plans to reduce the country's birth rate and population. "They think that spewing out human beings by the millions is a gift from God," he claimed, adding that health care workers should resign if they are unwilling to follow government policy on population control for reasons of conscience.1
Duterte's authoritarian diatribe clashes with a ruling of the Supreme Court of the Philippines and turns the clock back to times of harsh and extreme rhetoric when the current law was being developed. Commonly known as the RH Act, the Responsible Parenthood and Reproductive Health Act was signed into law by
President Benigno S. Aquino III on 21 December, 2012.2
It was the product of over fourteen years of
public controversy and political wrangling.
Congressman Edcel Lagman introduced the Responsible Parenthood
and Population Management Act of 2005 (House Bill 3773) in the 13th
Congress,3,4 a consolidation of four previous bills.5,6,7,8 HB 3773 included coercive elements drawn from one of the consolidated bills, which he had introduced:5
- the state to encourage a maximum of 2 children per family, backed by giving preference in state scholarships to compliant couples
- all collective agreements to require employers (no exceptions) to pay for employees' contraceptives, sterilization and other forms of birth control
- six months jail or 20,000 peso fine or both
- for health care providers who
- withhold information or provide incorrect information about birth control and sterilization
- refuse to perform sterilization
- refuse to provide contraceptives and other forms of birth control
- refuse to refer patients for those services to non-objecting providers
- for anyone engaging in "disinformation" about the law
That bill having failed, Lagman introduced another to the House of Representatives three years later.9 It was largely replicated in a concurrent bill in the Senate,10 but neither bill
passed. Later proposals11,12 were amalgamated into a single bill in 2011.13 This evolved in two
different versions in the House and Senate during 2012.
The House and Senate passed both versions in December, 201214
and then agreed upon the final text that was ultimately signed by the Philippines President.15
The most incendiary provisions (such as the threat of imprisonment for
"engaging in disinformation" about the law16) were deleted during the amendments process.
Nonetheless, the new law was of concern because it threatened some
conscientious objectors with imprisonment and fines. In January, 2013, the Project reviewed the RH Act in detail. Project criticisms about the law's suppression of freedom of conscience were validated in April, 2014, when the Supreme Court of the Philippines struck down sections of the law as unconstitutional.17
Given the long history of attempts at legislative coercion in the Philippines and President Duterte's obvious hostility to freedom of conscience and religion in health care, the Project's 2013 review of the RH Act is here updated and republished. Comments on specific parts of the text are provided in Appendix "B," The RH Act (2012) in brief.
Health care is delivered in the Philippines by both the public and
private sector. All Filipino citizens are automatically enrolled in the National Health Insurance Program (NHIP),18 but citizens remain free to obtain private health
insurance.19,20
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 2013, determines policies for payment of
claims. It also accredits
health care institutions and practitioners and processes and reimburses
claims for health care provided by them.21
The government operates 26,700 health facilities; the private sector, including religious denominations, controls only 2,301. The great majority of hospitals are private facilities (993 of 1,456),22 but all forms of birth control legal in the Philippines can be provided outside a hospital setting. With over a 10 to 1 advantage in the control of health facilities that can provide birth control, the government would seem to have little cause to blame the Catholic Church or other religious denominations for its failure to meet its population targets.
The ground for the RH Act was 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
state Commission on Population (POPCOM)23 and related agencies, including the Department of Health (DOH). Thus, government direction in family
planning and population control has become part of the
normal social, political and health care landscape in
the Philippines. [Appendix
"A"]
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.24 However, reported attitudes and practices indicate widespread rejection rather than acceptance of Catholic teaching on sexuality and marriage.
For example, the proportion of out-of-wedlock births increased from almost 45% in 201125 to over 50% in 2017,26 notwithstanding the Church's long-standing teaching that extra-marital sex is immoral. It would be absurd to suggest (à la Duterte) that the couples involved were not using contraceptives because of Catholic teaching. In fact, 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. [Appendix
"A"]
Given that the final form of the law was the product of years of debate
and intensive scrutiny by both the House and the Senate, it is surprising to
find that the wording of the law leaves much to be desired. It appears that the opposing sides of the debate attempted to arrive at a compromise by introducing conflicting political or ideological rhetoric into the text without considering to what extent the conflict could be resolved by interpretation - if it can be resolved at all.
Some parts of the RH Act are questionable for a variety of reasons. For example: it transforms political/ideological concepts
and terminology (gender equality, gender equity, women empowerment) into "health concerns"
[Appendix "B", Comment
7]. The law asserts that there is a "right to health," which clearly
cannot be, since a natural disease process would then be a
violation of human rights [Comment 2].
It claims that there is a "right to choose and make decisions," without
recognizing that many choices and decisions may be legitimately restricted
or prohibited by law [Comment 3]. The Act states that the family is "an autonomous social institution,"
but no family and no individual is actually autonomous; interdependence,
rather than autonomy, is more characteristic of individuals and families [Comment
5].
Other sections are ambiguous or inconsistent.
Section 3(h) suggests that the State may be obliged by
unspecified international human rights agreements to disregard individual preferences and choice
of family planning methods - which the Act identifies as human rights [Comment 15].
On the one hand, the
family is said to be "the natural and fundamental unit of society,"
founded on marriage, and the language suggests
that this refers to the marriage of a man and woman. On the other, the Act does not associate reproductive health, sexual health and childbearing
with marriage or family [Comments 17, 22, 23, 25, 26].
On the contrary: since the Act states that "universal access" to health, including "reproductive health," is a human right that must be guaranteed
by the State [Comment
1], it follows that the State must guarantee the "right " to have
children to single individuals and unmarried couples, including those who
identify themselves as homosexual. [Comments 10,
17,
22]. This logically
includes a "right" to State-supported artificial reproduction [Comments
10, 20,
21,22].
Discrimination is supposed to be eradicated, but, at one point,
the Act appears to authorize discrimination against single people in favour
of couples [Comment 26]. Those who wish to marry must provide a certificate of compliance to prove that they have been instructed by the State on responsible parenthood, family planning, breastfeeding and infant nutrition; those who will have children but don't intend to marry need no such instruction [Comment 34].
Worse, parts of the law are self-contradictory. Section 4(a) of the Act prohibits
abortifacient drugs and devices, including those that cause the death of an
embryo before implantation [Comment 16], but
Section 9 requires that intrauterine devices and injectable contraceptives be kept in stock, even though they may have an embryocidal mechanism of action that violates Section 427
[Comment 32]. "Emergency contraceptive pills" and "postcoital pills" are
forbidden for reasons that are unclear, but so are "equivalent" forms of the
drugs, which, depending on the product and dosage, can include ordinary
birth control pills [Comment 33].
A troubling example of ideologically-charged rhetoric impacts parents, not health care workers:
Section 2: The State shall also promote openness to life:
Provided, That parents bring forth to the world only those children
whom they can raise in a truly humane way.
What constitutes "a truly humane" way to raise children is not defined and is a highly subjective term. A policy statement of this kind enshrined in law leaves ample room for oppressive action by state authorities determined to "encourage" acceptance of a two-child policy. This goal is apparently being pursued by POPCOM28 even though the RH Act explicitly prohibits the state from adopting "demographic or population targets."29
If it really were a "human right"
to be provided with contraceptives, contraceptive
sterilization and artificial reproduction, it would follow that anyone who refused
to provide them would be guilty of a human rights
violation. 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 Act would, if accepted literally, leave no
principled basis upon which to exempt any health care institution or health
care worker from a requirement to provide morally contested procedures or
services like contraception, contraceptive
sterilization and artificial reproduction.
Note that one of the requirements for accreditation
by the Philippine Health Insurance Corporation is
"recognition of the rights of patients."30 But for the 2014 Supreme Court decision, the declaration of rights in the RH
Act
would have enabled PhilHealth to deny accreditation to any
health care facility that refused to comply with the Act
for reasons of conscience.
Section 2 of the Act requires the State to "eradicate discriminatory
practices, laws and policies that infringe on
a person's exercise of reproductive health
rights." Note that an actual violation of the purported right is not
required. It is sufficient that it be "infringed." The effect of this provision is amplified by Section 27, which states
that the law must "be liberally construed to ensure the provision, delivery
and access to reproductive health care services, and to promote, protect and
fulfill women's reproductive health and rights."
Within the context of rights claims and accusations
of discrimination, it is important to note that Section
23(a)3 makes 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.31,32
It is reasonable to believe that such accusations will
be made in similar circumstances against objecting Filipino health
care workers, even though such objections are typically about conduct, not the personal characteristics of patients [Comment
41].
Fortunately, the Supreme Court decision prevents these provisions from being used to aggressively suppress religious or moral
expressions of belief, policies or practices
that authorities deem to "infringe" alleged rights to contraception, contraceptive
sterilization and artificial reproduction.
It is also 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
40]. 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 decline to provide
contact information for providers of morally
controversial services.
If dissemination of incorrect information or improper
withholding of information really 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. It is doubtful that
giving the state the power
to jail those who refuse to say or do what they believe to be wrong will
improve the quality of public discourse or health care.
While accusations of providing "incorrect information" are still possible, the Supreme Court of the Philippines struck down this section of the law to the extent that it "punish[es] any healthcare service provider who fails and or refuses to disseminate information regarding programs and services on reproductive health regardless of his or her religious beliefs."33
According to Section 7 of the Act, all accredited public and private health facilities must provide contraceptives, contraceptive sterilization and artificial reproduction. Private facilities can charge for the
services, but may provide them free of charge to "indigents," though on this point the wording of the law is unclear [Comment 27].
Non-maternity specialty hospitals and hospitals operated by religious groups can provide the services, but need not do so. However, if they do not, the Act states that they must "immediately refer" patients to another "conveniently accessible" facility - presumably one that will provide the services. This would be unacceptable to those who object to referral on the ground that it makes them complicit in what they consider to be the wrongful act that follows.
The law does not explicitly state what is required if another facility is not conveniently accessible. However, a later statement that "no person shall be denied. . . access to family planning services," read in conjunction with Section 27, invites the conclusion that if another facility is not conveniently accessible, the objecting institution must provide the morally contested service [Comments 29,
30].
Demanding that denominational facilities provide services they believe to be gravely wrong or facilitate them by referral is a violation of freedom of conscience and religion. Had the Philippines Supreme Court not struck down this provision in 2014, the persons responsible and officers of the institution could have been jailed for one to six months, fined of up to 100,000 pesos, or both [Comment 31].
The law requires the Department of Health, acting with the Philippine Health Insurance Corporation, to increase the power of professional regulators to enforce the Act, which, in practical terms, could have led to the suppression or restriction freedom of conscience of health care workers and institutions through accreditation rules, codes of conduct, etc. [Comment 39]. This has been precluded by the Supreme Court decision.
As previously noted, the rights claims made in the Act 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 artificial reproduction.
Section 23(a)3
contains the only provisions for accommodation of freedom of conscience or religion. Contraception, contraceptive sterilization and artificial reproduction are morally controversial, but this section does not allow religious or ethical objections to any of them. Instead, it purports to accommodate health care workers who refuse to provide health services or information "on account of the person's marital status, gender,
sexual orientation, age, religious convictions, personal circumstances, or nature of work." In other words, the Act purports to offer accommodation only to those willing to accuse themselves of unjust discrimination.
In reality, 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. 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).
However, the provision purporting to accommodate the exercise of freedom of religion does not recognize moral, religious or ethical objections to contraception, sterilization, artificial reproduction, etc., so it is, first of all, worthless. Moreover, for many objecting health care workers, the demand for referral is not a form of accommodation, but simply another form of oppression. Many consider referral and other forms of facilitation unacceptable because they hold that it makes them complicit in what they consider to be immoral conduct.
Thus, the RH Act would have made the exercise of freedom of conscience
impossible or ridiculous, requiring objectors to invite public obliquy by false confessions of prejudice, in exchange for which the Act offers only counterfeit accommodation. Given the problems with the wording of
other sections of the law, it is not clear whether this provision was deliberately constructed as an
obstacle to conscientious objection, or if it was simply
the product of appalling legislative draftsmanship.
In any case, the majority of the Supreme Court of the Philippines understood the problem posed by the RH Act:
While the RH Law, in espousing state policy to promote reproductive
health manifestly respects diverse religious beliefs in line with the
NonEstablishment Clause, the same conclusion cannot be reached with
respect to Sections 7,
23 and
24 thereof. The said provisions commonly
mandate that a hospital or a medical practitioner to immediately refer a
person seeking health care and services under the law to another
accessible healthcare provider despite their conscientious objections
based on religious or ethical beliefs. . .
Though it has been said that the act of referral is an opt-out clause, it
is, however, a false compromise because it makes pro-life health providers
complicit in the performance of an act that they find morally repugnant or
offensive. They cannot, in conscience, do indirectly what they cannot do
directly. One may not be the principal, but he is equally guilty if he abets
the offensive act by indirect participation.34
Assuming that the Philippines government's concern about population growth in the country is justified, it does not follow that it is best addressed by the kind of state bullying exemplified by President Duterte's ill-tempered and ill-considered eruption. Aside from the government's enormous practical advantage in its control of health care facilities, it has at its disposal all of the legitimate means available to democratic states to accomplish its policy goals. Not the least of these is persuasive rational argument, an approach fully consistent with the best traditions of liberal democracy, and far less dangerous than state suppression of fundamental freedoms of conscience and religion.
Notes
1. Torres J. Duterte blames Philippine Church for rapid population rise: Catholic opposition to family planning is main reason for high fertility rate, he says [Internet]. UCA News. 2019 Jun 11. (Cited 2019 Sep 14)
2. Republic of the Philippines, Republic Act No. 10354, Responsible Parenthood and Reproductive Health Act of 2012, Third Regular Session, 15th Congress, 2012 [RH Act].
3. Torrevilas DM.
Lagman's commitment to reproductive health [Internet]. The Philippine Star (philstarGlobal). 2009 Feb 28. (Cited 2019 Sep 14).
4. Republic of the Philippines, House Bill 3773, An Act Providing for an Integrated and Comprehensive National Policy on Responsible Parenthood, Population Management and Human Development, Creating a Responsible Parenthood, and Population Management Council, and for Other Purposes. (Responsible Parenthood
and Population Management Act of 2005 ), First Regular Session, 13th Congress, 2005. Filed: 2005 Feb 22. Principal author: Edcel C. Lagman.
5. Republic of the Philippines, House Bill 16, An Act Creating a Reproductive Health and Population Management Council for the Implementation of an Integrated Policy on Reproductive Health Relative to Sustainable Human Development and Population Management, and for Other Purposes (Reproductive Health Act of 2004), First Regular Session, 13th Congress, 2004.
6. Republic of the Philippines, House Bill 2029, An Act Providing for Reproductive Health Care Structures and Appropriating Funds Therefor (The Reproductive Health Care Act), First Regular Session, 13th Congress, 2004. Filed: 2004 Aug 03. Principal author: Josefina M. Joson.
7. Republic of the Philippines, House Bill 2042, An Act Promulgating a Comprehensive Policy on Birth Control and for this Matter Creating a Bureau of Population Management under the Department of Health and Renaming the Department as the Department of Health and Population Management and Appropriating Funds Therefor (The Population Management Act of 2004), First Regular Session, 13th Congress, 2004. Filed: 2004 Aug 03. Principal author: Ferjenel G. Biron, M.D.
8. Republic of the Philippines, House Bill 2550, An Act Promoting Responsible Parenthood by Providing Incentives to Couples/Individuals who Practice Surgical Family Planning Methods Providing Funds Therefor and Other Purposes (Population Management Act of 2004), First Regular Session, 13th Congress, 2004. Filed: 2004 Aug 23. Principal author: Eduardo V. Roquero, M.D.
9. Republic of the Philippines, An Act Providing for a National Policy on Reproductive Health, Responsible Parenthood and Population Development, and for Other Purposes (House Bill 5043, The Reproductive Health and Population and
Development Act of 2008), First Regular Session, 14th Congress, 2008.
10. Republic of the Philippines, Senate Bill 3122, The Reproductive Health and Population Development Act of 2009, Second Regular Session, 14th Congress, 2009.
11. Republic of the Philippines, House Bill 96, The Reproductive Health and Population and Development Act of 2010, First Regular Session, 15th Congress, 2010.
12. Republic of the Philippines, Senate Bill 2378, The Reproductive Health Act, First Regular Session, 15th Congress, 2010.
13. Republic of the Philippines, House Bill 4244, The Responsible Parenthood, Reproductive Health and Population and
Development Act of 2011, First Regular Session, 15th Congress, 2011. [HB4244/2011].
14.
Diokno B. RH bill over the hump [Internet]. Business World Online 2012 Dec 19. (Cited 2019 Sep 14).
15. Yamsuan C, Salaverria LB. RH bicam:
Satisfying, pleasurable [Internet]. Inquirer.net 20i2 Dec 20. Available from: <https://newsinfo.inquirer.net/327105/rh-bicam-satisfying-pleasurable>. (Cited 2019 Sep 14).
16. HB4244/2011, supra note 13, Section 28(2)e.
17. Imbong v Ochoa Jr. (2014) 732 Phil 1 (Philippines SC, G.R. No. 204819) [Imbong].
18. Republic of the Philippines, Republic Act 11223, Universal Health Care Act, Third Regular Session, 17th Congress, 2018 [UHCA], Section 5. (Cited 2019 Sep 14).
19. Ibid, Section 7(b)
20. Transferwise. Living Abroad: Life in the Philippines: Getting health insurance in the Philippines: A complete guide [Internet]. 2017 Sep 28. (Cited 2019 Sep 14).
21. Philippine Health Insurance Corporation, PhilHealth: About Us: Agency's Mandate and Functions [Internet]; 2014. (Cited 2019 Sep 14).
22. Republic of the Philippines, Department of Health, National Health Facility Registry v2.0: Philippine Health Facility Status [Internet]. (Cited 2019 Sep 14).
23. Commission on Population Philippines, POPCOM: About Us: History [Internet]. (Cited 2019 Sep 14).
24. Chan Robles Virtual Law Library, The 1987
Constitution of the Republic of the Philippines, Article II, Section 12. [Internet]. Available from: <http://www.chanrobles.com/article2.htm>. (Cited 2019 Sep 14).
25. Republic of the Philippines, Philippine Statistics Authority, Vital Statistics: Live births: Philippines 2011 [Internet] 2015 Dec 09. (Cited 2019-09-14).
26. Republic of the Philippines, Philippine Statistics Authority, Civil Registration: Vital Statistics: Births in the Philippines, 2017 [Internet]. Ref. No. 2018-199, 2018 Dec 18. (Cited 2019 Sep 14).
27. Protection of Conscience Project, U.S. Food and Drug Administration: Approved Methods of Birth
Control [Internet].
28. Republic of the Philippines, Commission on Population Philippines, The Philippine Population Management Program Directional Plan 2017-2022 [Internet] (Mandaluyong City, Philippines) at p. 32, Table 15. (Cited 2019-09-14)
29. RH Act, supra note 2, Sec. 3(l).
30. Republic Act 7875, National Health Insurance Act of 2013, Section 33(e): Minimum
requirements for accreditation. In Philippine Health Insurance Corporation, The Revised Implementing Rules and Regulations of the National Health Insurance Act of 2013 (RA 7875 as amended by RA 9241 and 10606) [Internet]. 2013 Ed, p. 93. (Cited 2019 Sep 14).
31. Canning, C. Doctor's
faith under scrutiny: Barrie physician won't offer the
pill, could lose his licence [Internet]. The Barrie Examiner, 2002 Feb 21.
32. Attaran A. Commentary: The Limits of Conscientious and Religious Objection to Physician-Assisted Dying after the Supreme Court’s Decision in Carter v. Canada. Health Law in Canada. 2016 Feb;36(3):86-98. (Cited 2019 Sep 14).
33. Imbong, supra note 12 at 103.
34. Ibid at 72.
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