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The RH Law and the Freedom of Religion and freedom of Speech [P. 22]

Freedom of religion and freedom of speech are among our people's most cherished liberties. Petitioners assert that these freedoms are seriously infringed by the RH Law.

Freedom of Religion

Religious freedom is guaranteed under Section 5, Article III or the 1987 Constitution:

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or [P. 23] preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

According to petitioners, the RH Law compels them to act against their religious beliefs and threatens them with criminal sanction if they insist on exercising the teachings of their faith. They point to Sections 7 and 23(a)(3) of the RH Law as the provisions impinging on their religious freedom.

Petitioners assail Section 7's directive to extend family planning services to paying patients of private health facilities with the exception of non-maternity specialty hospitals and hospitals owned and operated by a religious group. The exception is, however, subject to the alternative mandate of referring the person seeking reproductive health care and services to another health facility which is conveniently accessible. Thus, while private health facilities run by conscientious objectors have no duty to render the reproductive health care and services required under the RH Law, such facilities are mandated to refer the patient to another health facility which will perform the said services. This same obligation to refer to another health care provider is found in Section 23(a)(3), which imposes criminal sanctions on any private or public health care provider which refuses to extend quality health care services and information to a person seeking reproductive health service and information.

Petitioners claim that the RH Law does not truly respect the religious freedom of a conscientious objector when it imposes upon the latter the duty to refer a person seeking reproductive health services to another health care provider. The imposition of such duty to refer makes the referring objector complicit to the methods and acts of the referred health care provider. Thus, petitioners assert that while the law does not directly violate the religious freedom of the conscientious objector, there is still an indirect violation of religious freedom.

For its part, the Government claims that, contrary to petitioners' contention, the RH Law does not violate petitioners' religious freedom. Rather, the RH Law recognizes and accommodates a person's right to exercise his or her religion. According to the Government, the mandate of Section 5, Article III of the 1987 Constitution is to protect and promote religious liberty; the freedom from any government compulsion to adhere to a specific religion or to none at all. Congress, in enacting the RH Law, recognized and acknowledged a person's right to his faith by expressly providing in Section 2 of the RH Law that the State recognizes and guarantees the "right to choose and make decisions for themselves in [P. 24] accordance with their religious convictions", particularly, the "right or spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood". Moreover, Section 3, which lays down the guiding principles for the implementation of the RH Law, expressly provides in its paragraph (h) that the "State shall respect individuals' preferences and choice of family planning methods that are in accordance with their religious convictions and cultural beliefs, taking into consideration the State's obligations under various human rights instruments." Clearly, therefore, the RH Law was crafted within the context that each person has a religious belief deserving of recognition and respect. The general direction of the RH Law therefore is to accommodate. This principle of religious tolerance and acceptance is concretized in its Sections 7 and 23.35 According to the Government:

Based on Section 7, a private health facility owned and operated by a religious group has the option to provide the full range of modern family planning methods. However, if due to its religious convictions it shall opt not to do so, it is duty bound to immediately refer the person seeking such care to a conveniently accessible health facility which is capable of doing so.

Section 23(a)(3) similarly affords a health care provider the right to refuse to treat a person due to his religious convictions, on the condition that he must also refer the person to another health care provider who is capable and willing to extend the service.

The RH Law excludes from its coverage private health facilities owned and operated by religious groups and health care providers, who have objections based on their religious convictions. The exemption provides that these private health facilities and health care providers cannot be compelled or coerced to provide reproductive health services when such would be in conflict with their religious beliefs.

Having the choice is the essence of religious liberty. Since these private health facilities and health care providers are not compelled to disobey their religious beliefs, their freedom of religion is not offended.36

The Government further explains that the requirement to immediately refer a person to another health facility and health care provider docs not offend religious freedom. Section 5, Article III of the 1987 Constitution is a protection against dogmatic compulsion and not a shield against civic obligations. Sections 7 and 23(a)(3) of the RH Law generally allow private health facilities and health care providers to ref use, based on religious [P. 25] grounds, to extend services and in formation to persons requesting for such. This "opt-out clause" is the Government's accommodation to the religious beliefs of these private health facilities and health care providers. There is therefore no burden on their religious freedom and the "opt-out clause" does not offend the objector's religious freedom.37

For the Government, religious liberty is the freedom from coercion by the State to adhere either to a specific religion or to none at all. The act of referring a person to another health facility or health care provider is not a compulsion for the religious private health facility and health care provider either to violate their religious beliefs or to accept another's beliefs. Moreover, the accommodation afforded by the State to religion is not a shield against civic obligations, but must be balanced with another's right to health and information. That is the very purpose of the proviso that a religious private health facility or a health care provider who has a conscientious objection must nonetheless refer the patient to another non-objecting facility and health care provider.38

The position of petitioners is correct.

Estrada v. Escritor39 established the test to be used in deciding cases involving freedom of religion:

x x x in resolving claims involving religious freedom (1) benevolent neutrality or accommodation, whether mandatory or permissive, is the spirit, intent and framework underlying the religion clauses in our Constitution; and (2) in deciding a plea of exemption based on the Free Exercise Clause .... it is the compelling state interest test the strictest test, which must be applied.

In addressing the constitutionally guaranteed religious freedom of the people, the Stale should adopt an attitude or benevolent neutrality or accommodation. And on the matter of carving an exemption to the free exercise aspect of religious freedom, a compelling state interest must be shown and the least restrictive approach should be taken.

The Government essentially agrees with petitioners that the duty to refer is a condition imposed on conscientious objectors or those, who on the [P.26] basis of their religious beliefs, are exempted from the legal obligations to provide a full range of modern family planning methods under Section 7. They are required to immediately refer a person seeking reproductive health care and services to another health care service provider within the same facility or one which is conveniently accessible under Section 23(a)(3) of the RH Law. The contending parties, however, disagree on the implications of such duty to refer as a condition on a conscientious objector's right to free exercise of religion. Petitioners posit that such a condition is unconstitutional for being an undue burden on their right to freely exercise their religious beliefs, while the Government maintains that it is a constitutionally valid limitation on the religious freedom of religious objectors.

I join the majority in upholding the petitioners' position.

The duty to refer as a condition on conscientious objection is a restriction of a conscientious objector's freedom to exercise his or her religious beliefs. While a conscientious objector is allowed, on grounds of religious freedom, to be exempted from the legal obligations imposed under Sections 7 and 23(a)(3) of the RH Law, he or she is nonetheless imposed a substitute duty, that of referral of a person seeking reproductive health care and services to another health care service provider who may be willing and able to provide a full range of modern family planning methods or reproductive health care services.

Estrada v. Escritor, in recognition of freedom of religion as a preferred right, observed the standard of strict scrutiny and required a showing by the Government of a compelling state interest to justify the curtailment of the right to freely exercise one's religious beliefs. In these present cases, the Government failed to pass strict scrutiny as it was not able to give any clear compelling state interest. Worse, as pointed out by the ponencia of Justice Mendoza, during the oral arguments, the Government did not even see the need to show a compelling state interest on the flimsy and off-tangent argument that the legal obligations imposed by the law is "an ordinary health legislation" and not a "pure free exercise matter." Yet, by recognizing conscientious objectors as constituting a class or group that is exempt from certain legal obligations under Sections 7 and 23(a)(3), the RH Law itself acknowledges that the religious beliefs of conscientious objectors and their constitutionally guaranteed right to the free exercise of such beliefs are entitled to respect and protection. This recognition afforded by the RH Law to conscientious objectors is irreconcilable with the Government's position that the imposition of the substitute duty to refer is outside the protection afforded to free exercise. It also contradicts the Government's [P. 27] stance that the compelling interest test should not be applied because the accommodation given by the RH Law to conscientious objectors is justified by the standard of the balancing of the freedom of religion of conscientious objectors with the interests of patients to health and information.

The guarantee of free exercise of religion proscribes the imposition of substantial burden upon the said right absent any compelling state interest to justify the same. A governmental restriction substantially burdens religious freedom when it bans behavior that the objectors see as religiously compelled, or mandates behavior that the objectors see as religiously prohibited.40 Requiring people to do something that "is forbidden by [their] faith" qualifies as a substantial burden on religious practice.41 "While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial" and that is so even where the relevant "conduct proscribed by a religious faith" is indirect complicity in other conduct, and the complicity line that the religious claimant draws appears inconsistent or unsound to the reviewing court because "[i]t is not for [secular courts] to say that the line [the claimant] drew was an unreasonable one."42 Thus, the law recognizes that requiring a person to do something that he or she sincerely sees as sinful is a "substantial burden" on his/her religion, and people's definition of "sinful" often includes sins of complicity and not just sins of direct action.43

Viewed under the lens of the above substantial burden standard, the substitute duty to refer imposed on conscientious objectors under Sections 7 and 23(a)(3) is a substantial burden on a conscientious objector's right to the free exercise of religious beliefs as it mandates behavior that the objectors see as religiously prohibited even if done indirectly through complicity and not directly or personally. It places conscientious objectors in an unconscionable dilemma - either to violate the law or to violate their faith. Therefore, the substitute duty to refer under the said provisions of the RH Law violates the right to free exercise of religion of conscientious [P. 28] objectors. In the matter of free exercise of religion, what cannot be compelled to be done directly may also not be compelled to be done indirectly.

Religious or moral diversity in the health care profession is a public good. Preserving religious and moral diversity within the health care profession helps to guard against the tragic ethical mi stakes that occur when dissent is silenced.44 This is true as regards the free exercise of religion. This is also true as regards the freedom of speech of medical practitioners.

Freedom of Speech

The right to speak - freedom of speech - is a fundamental right.45 That liberty is specifically protected under Section 4, Article III of the 1987 Constitution:

Section 4. No law shall be passed abridging the freedom of speech, of expression, or the press or the right of the people peaceably to assemble and petition the government for redress or grievances. (Emphasis supplied)

Petitioners argue that the RH Law unduly restricts the freedom of expression and compels private health care service providers which conscientiously object to the RH Law to be a mou thpiece of the Government's RH Law program. They are required under subparagraphs (1) and (3), paragraph (a) of Section 23 to participate in the information dissemination component of the Government's RH Law program, under pain of criminal sanction. The assailed provision reads:

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

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

[P. 29] (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 or legal, medically-safe non-abortifacient and effective family planning methods:

x x x           x x x          x x x

(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. further, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344. which penalties the refusal or hospitals and medical clinics to administer appropriate initial medical treatment and support in emergency and serious cases: x x x (Emphases supplied)

The Government responds to the contention of the petitioners in this way:

Section 23(a)(1) of the RH Law declares the following acts, if committed by any health care service provider, as criminal:

(a) knowingly withholding information or restricting the dissemination of such information; and,

(b) intentionally providing incorrect information regarding programs and services on reproductive health, including the right to informed choice and access to a full range of legal, medically-sale, non-abortifacient and effective family planning methods.

[P. 32] Section 23(a)(1) of the RH Law regulates both the "professional speech" and "speech as a professional" of a doctor or a health care service provider. "Professional speech" refers to the communication between doctor and patient that occurs in the course or ongoing medical consultation or treatment. It pertains to speech uttered (in the case of Section 23(a)(1), speech either not uttered or should not have been uttered) in the course and conduct of professional practice of the doctor or health care provider.47 "Speech of/as a professional", on the other hand, is the speech made by a doctor or health care service provider to the public in general, such as an Opinion-Editorial (Op-Ed)48 piece submitted to a newspaper or a speech given in a conference or statements given during an interview.49

The prohibition against the acts covered under Section 23(a)(1) is aimed at promoting the universal access policy of the RH Law. In particular, it mandates doctors and other health care service providers, when speaking to a specific client or to the public at large, to provide and disseminate full information on modern family planning methods, especially the use of IUDs and contraceptives, in line with the Government's universal access policy. In accordance with  Section 23(a)(1), doctors and other health care service providers must give patients and the public alike information and advice on the merits of reproductive health, the benefits of family planning, and the advantages of the use of contraceptives as "legal, medically-safe, non-abortifacient and effective family planning methods". Thus, the Government has determined the content of the information to be given and disseminated by doctors and health care service providers.

In its proper context, the prohibited act of either withholding or restricting the dissemination of information on reproductive health covers the decision of a doctor or a health care service provider in his/her personal and professional capacity not to endorse or unfavorably talk about the use of contraceptives. On the other hand, the prohibited act of "intentionally providing incorrect information" on reproductive health programs and services logically covers the medical opinion of a doctor that is critical of the use of contraceptives and contradicts the FDA, such as giving advice that the use of IUDs and contraceptives may be unhealthy to women. Thus, Section 23(a)(1) of the RH Law includes both the act of not giving the Government-mandated information and the act of giving information contrary to or different from that mandated by the Government, whether the basis of the doctor or health care service provider is his or her religious belief or [P. 33] professional opinion. In this connection, it is worth noting that there is no provision to accommodate the conscientious objector under Section 23(a)(1). Nor does Section 23(a)(1) have room for a doctor or health care service provider who acts against the said provision on the ground of that doctor's well-considered professional opinion.

Under Section 23(a)(1), the dissemination or information is strictly regimented. Every doctor or health care provider should walk in unison and march in cadence to the RH Law's tune. Under pain of criminal prosecution, no doctor or health care service provider may refuse to march, or follow the beat of a different drummer, or hum his own tune. In practical application, regardless of their religious convictions, it is felonious for doctors and other health care service providers to talk of natural family planning only or to limit their advice, whether in personal or professional capacity, to natural methods of family planning only. Regardless or their religious convictions and professional opinion, too, it is criminal for them to make statements about the risks IUDs and contraceptives pose to both the unborn and the mother where the FDA has already made a determination that such IUDs and contraceptives are "legal , medically-safe, non-abortifacient and effective family planning methods."

Thus, Section 23(a)(1) effectively compels the doctor or health care provider to make a speech that promotes the Government's RH Law program, particularly the use of contraceptive drugs and devices, regardless of the doctor's religious conviction or well-considered professional opinion. lt dictates upon the doctor what should be said and what should not be said in matters of reproductive health. In other words, Section 23(a)(1) requires the doctor or health care service provider to make a compelled speech, a speech that may be against the doctor's spiritual belief or professional opinion. Moreover, the threat of criminal sanction enhances the chilling effect of the law and serves to deter a health care service provider from expressing his professional views or exercising his religious reservations.

The ratiocination of the Government utilizing the speech-conduct dichotomy does not hold water. In particular, the Government characterizes the acts punished under Section 23(a)(1) (namely, withholding or restricting information or providing incorrect information) as conduct, not speech, and therefore not covered by the constitutional guarantee on freedom of specch.50

[P. 34] However, the "conduct" penalized under Section 23(a)(1) is essentially the act of not speaking or speaking against the Government's RH Law message, particularly about artificial methods of family planning. What the law punishes, therefore, is the assertion by the doctor or health care service provider of his or her freedom of the mind as a professional.

The freedom of speech is a protection of the individual's freedom of thought and it includes both the right to speak freely and the right to refrain from speaking at all. The right to speak and the right to refrain from speaking are complementary components of the broader concept of "individual freedom of mind."51 In other words, the freedom of speech guarantees that no person can be compelled by the Government to carry and convey the Government's ideology.

Compelled speech is not free speech. One who is free to speak cannot be made to say something against his will or violative of his beliefs. The Government may not require a person to subscribe to and promote the Government's ideology. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes freedom of exprcssion.52

Indeed, "a society that tells its doctors under pain of criminal penalty what they may not tell their patients is not a free society."53 The RH Law, however, precisely does that to our society. It dictates upon the doctor what to tell his/her patients in matters of family planning, and threatens the doctor with criminal prosecution in case of non-compliance. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or to manipulate the public debate through coercion rather than persuasion.54

The value of free speech concerning the matter of the RH Law for health care providers in the marketplace of ideas is significant:

The driving force and strongest argument for retaining room for moral refusers in the profession is the fact that many or the issues facing physicians raises metaphysical questions entirely immune to empirical testing or any other comprehensive doctrine for distinguishing right from wrong .... We benefit from maintaining diverse viewpoints, excluding [P. 35] only arguments that are entirely illogical, for the ensuing debate will help siphon out the most accurate version of moral truth as errors are revealed and persuasive arguments are strengthened through their collision with error.55

Chavez v. Gonzales56 further expounds on the constitutional value or free speech:

Freedom of speech and or the press means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter of public consequence. When atrophied, the right becomes meaningless. The right belongs as well -- if not more -- to those who question, who do not conform, who differ. The ideas that may be expressed under this freedom are confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view "induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us.57

To allow the Government to target particular views or subjects permits the Government to greatly distort the marketplace of ideas.58 Worse, to impose the Government's ideology and restrict the available speech in the market only to Government-manufactured and mandated speech is a monopoly of ideas that is anathema to and destructive of a marketplace. It defeats the public good, particularly that of a free and diverse civil society whose institutions help shape individuals and provide alternatives to publicly defined conceptions of the human and civic good.59 Thus, information on RH matters that is strictly regimented and severely regulated by the Government stunts rather than promotes fully informed decisions.

The rule is that a content-based regulation "bears a heavy presumption of invalidity and is measured against the clear and present danger rule." It will pass constitutional muster only if justified  by a [P. 36] compelling reason, and the restrictions imposed are neither overbroad nor vague.60

Section 23(a)(1), a content-based regulation, is heavily burdened by a presumption of unconstitutionality. Placed under the test of strict scrutiny,61 the Government miserably failed to advance a compelling reason that would overcome the presumption of the RH Law's invalidity. The Government simply invokes the universal access policy but such policy may be advanced without unnecessarily curtailing the right of the doctors or health care service providers to speak their minds freely, and not what the Government commands. In particular, doctors or health care service providers could have been allowed to express their considered professional opinion with the requirement to disclose the fact that their opinion differs from the Government's stand or policy in order to ensure a free and well-informed decision on the matter. Moreover, the overly broad and vague language of Section 23(a)(1) primarily contributes to the negative chilling impact of that provision on even the health care service provider's "speech as a professional."

The Government also failed to show that speech may be compelled or restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to prevent. There is no demonstration of evil consequences sought to be prevented which are substantive, extremely serious and highly imminent.62 In other words, no clear and present danger to be prevented has been established.

All told, Section 23(a)(1) of the RH Law, a tool to promote the universal access policy established in Section 7 of that law, constitutes an undue and unconstitutional restriction of the freedom of speech.

Section 23(a)(1) of the RH Law is constitutionally infirm on another ground. It defeats and contradicts the RH Law's own declared policy in the first paragraph of its Section 2 that the State recognizes and guarantees the right of all persons "to education and information, and the right to choose and make decisions for themselves in accordance with their religious convictions, ethics, cultural beliefs, and the demands of responsible parenthood," as well as the guiding principle in its Section 3 that the "right to make free and informed decisions, which is central to the exercise of any right, shall not be subjected to any form of coercion and must be fully guaranteed by the State, like the right itself." More importantly, it deprives the people of their constitutional right to information on matters of public concern, which is guaranteed under Section 7, Article III of the 1987 Constitution. The doctors are being coerced to toe the line in RH matters by compelling them, under pain of criminal sanction, to promote the Government's RH Law program and prohibiting them from contradicting the said government-sponsored RH Law program, even if it may go against his well-studied professional opinion. It therefore denies the target beneficiary of the program, the recipients of contraceptive drugs and devices, of valuable information that is the premise of the right to make a truly free and fully informed decision on a matter affecting the right to life of the unborn and a woman's right to health. Informed decision-making involves informed consent and there can be no real informed consent until and unless one is provided full information about the benefits, risks and alternatives, taking into account the person's physical well-being, personal circumstances, beliefs, and priorities.

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Notes

35.  Consolidated Comment, pp. 56-58.

36.  Id. at 58.

37.  Id. at 58-59.

38.  Id. at 59-62.

39.  A.M. No. P-02-1651 (Formerly OCA I.P.I No. 00-1021-P), June 22, 2006.

40.  Volokh Eugene, What is the Religious Freedom Restoration Act?, citing Sherbert v. Verner (374 U.S. 398 [1963]) and Wisconsin v. Yoder (406 U.S. 205 [1972]), posted on December 2, 2013, last visited April 7, 2014.

41.  Volokh Eugene, A Brief Note on the "Substantial Burden" Requirement, citing United States v. Lee ( 455 U.S. 252 [1982]) and Hernandez v. Commissioner (490 U.S. 680 [1989]), posted on December 5, 2013, last visited April 7, 2014.

42.  Id. quoting Thomas v. Review Board of the Indiana Employment Security Division (450 U.S. 707 [1981]).

43.  Volokh Eugene, Hobby Lobby, the Employer Mandate, and Religious Exemptions, posted on December 2, 2013, last visited April 7, 2014.

44.  Galston, William and Melissa Rogers, Health Care Providers' Consciences and Patients' Needs: The Quest for Balance, last accessed on November 11, 2013.

45.  See Social Weather Stations, Inc. v. Commission on Elections, 409 Phil. 571, 590 (2001), speaking of the "fundamental right of expression"; and, MVRS Publications, Inc. v. Islamic Da'wah Council of the Philippines, Inc., 444 Phil. 230, 253 (2003), speaking of the "fundamental right to free speech".

46.  Consolidated Comment, pp. 79-82.

47.  See Post, Robert, Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech, U. ILL. L.REV. 939, 947 (2007).

48.  Id.

49.  Id.

50.  Consolidated Comment, pp. 79-82.

51.  Wooley v. Maynard, 430 U.S. 705, 714 (1977).

52.  Turner Broadcasting System v. Federal Communication Commission, 512 U.S. 622, 640 (1994).

53.  Poe v. Ullman, 367 U.S. 497 (1961), Douglas, J., dissenting.

54.  Turner Broadcasting System v. Federal Communication Commission, supra note 52 at 641.

55.  Holly Fernandez Lynch, CONFLICTS OF CONSCIENCE IN HEALTH CARE: AN INSTITUTIONAL COMPROMISE, pp. 84-85, cited in Galston and Rogers, supra note 44.

56.  569 Phil. 155 (2008).

57.  Id. at 197-198.

58.  Chemerinsky, Erwin, CONSTITUTIONAL LAWS: PRINCIPLES AND POLICIES, p. 934 (2006).

59.  Galston and Rogers, supra note 44.

60.  Chavez v. Gonzales, supra note 56 at 207-208.

61.  See Newsounds Broadcasting Network, Inc. v. Dy, G.R. Nos. 170270 & 179411, April 2, 2009, 583 SCRA 333, 355. In particular, the Court said in this case:

The Court is of the position that the actions of the respondents warrant heightened or
strict scrutiny from the Court, the test which we have deemed appropriate in assessing content based restrictions on free speech, as well as for laws dealing with freedom of the mind or restricting the political process, of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection. The immediate implication of the application of the "strict scrutiny"test is that the burden falls upon respondents as agents of government to prove that their actions do not infringe upon petitioners' constitutional rights. As content regulation cannot be done in the absence of any compelling reason, the burden lies with the government to establish such compelling reason to infringe the right to free expression.

62.  Chavez v. Gonzales, supra note 56 at 200.