Protection of Conscience Project
Protection of Conscience Project
Service, not Servitude

Service, not Servitude

Supreme Court of the Philippines, The Responsible Parenthood and Reproductive Health Act of 2012:
Opinions supporting freedom of conscience (April, 2014)

Roberto A. Abad

Concurring Opinion

Roberto A. Abad
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Section 7, Section 23(a)(3), Section 23(a)(2), Section 23(b) and the Free Exercise of Religion [P. 16]

Section 7 of the RH Law requires all public health facilities to provide the full range of family planning services. This is also required of private health facilities, except in the case of non-maternity specialty hospitals and those operated by religious groups. The latter hospitals are, however, required to immediately refer the person seeking such services to the nearest health care facility that will do the task. Thus, Section 7 provides:

Section 7. Access to Family Planning. - All accredited public health facilities shall provide a full range of modem family planning methods, which shall also include medical consultations, supplies and necessary and reasonable procedures for poor and marginalized couples having infertility issues who desire to have children: Provided, That family planning services shali likewise be extended by private health facilities to paying patients with the option to grant free care and services to indigents, except in the case of non-maternity specialty hospitals and hospitals owned and operated by a religious group, but they have the option to provide such full range of modern family planning methods: Provided, further, That these hospitals shall immediately i·efer the person seeking such care and services to another health facility which is conveniently accessible: Provided, finally, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344. (Emphasis supplied)

[P. 17] Related to the above is Section 23(a)(3) of the RH Law that makes it a crime for any health care service provider (hospital, clinic, doctor, nurse, midwife, and health worker),32 whether public or private, to 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.

The law provides, however, that the health care service provider's objection based on his or her ethical or religious beliefs is to be respected. Thus, he or she is not to be compelled to render the services that would interfere with the natural human reproduction process if the same conflicts with his conscience. This is consistent with Section 5, Article III of the 1987 Constitution which provides that no law shall be made prohibiting a person's free exercise of his religion.

But the irony of it is that at the next breath the RH Law would require the conscientious objector to immediately refer the person, whose wants he declines to serve, to the nearest health care service provider who will do what he would not. The penalty for failing to do this is imprisonment for 1 to 6 months or payment of a fine of P 10,000 to P 100,000 or both imprisonment and fine. If the offender is a juridical person, the penalty shall be imposed on its president or responsible officer.33

Specifically, Section 23(a)(3) provides:

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

x x xx

(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: xx x

Section 23(a)(3) makes no sense. It recognizes the constitutional right of the conscientious objector not to provide artificial contraceptives that he believes would kill the unborn after it has been conceived. Yet, he must help see it done by someone else. For instance, the Catholic religion might consider it a sin similar to murder to implant a copper IUD into a woman since it would kill the unborn by preventing it from attaching to a womb atrophied by poison from the IUD. The RH Law respects the Catholic [P. 18] doctor's right to refuse to do what his faith regards as murder. But he must hasten, at the pain of punishment, to refer the woman to another doctor who is willing to do it.

So if the law would excuse the Catholic doctor from committing what in his faith amounts to murder, would it be reasonable for the law to compel him to help the woman and show her how she can have her child murdered by another doctor? If so, the Catholic doctor would in effect say to the other doctor, "I can't murder this woman's child but please do it in my place." This definitely compels him to do something against his conscience in violation of his constitutional right to the free exercise of his religion. The OSG cites the Ebralinag case34 concerning students who were members of the Jehovah's witnesses. They refused to salute the flag and for this reason were expelled from school. But the Court said that compelling them to salute the flag would violate their religious belief that salutes are reserved to God. It is the same here in the sense that the RH Law actually recognizes the right of a Catholic doctor not to be compelled to implant a copper IUD into a woman's womb because it amounts, according to his religious belief, to the murder of an unborn child. The Constitution and the law respect's the doctor's religious belief.

Of course, as the OSG points out, school authorities are not powerless to discipline Jehovah's witnesses' members if they commit breaches of the peace by disruptive actions that would prevent others, like their classmates and teachers, from peacefully saluting the flag and singing the national anthem. The OSG implies from this that while the RH Law can similarly respect the conscientious objector's right not to do what his religion forbids, it can compel him help the person get the declined service from another health care service provider.

But it is clear from Ebralinag that what is required of the Jehovah's witnesses is to respect the right of other students and their teachers by keeping quiet and not disrupting the flag ceremony. Keep quiet and let alone; that is the rule. In the case of the Catholic doctor, he should do nothing to impose his religious belief on the woman. He should do nothing that will deny the woman her right to get that copper IUD implantation elsewhere. Like the Jehovah's witnesses, the equivalent conduct for the Catholic doctor is to keep quiet and let alone.

Unfortunately, the RH Law requires him to take steps to ensure that the woman is pointed to another place where she could get the IUD implantation she wants. In effect, the law compels the doctor to do more than just keep quiet and let alone. It compels him at the pains of going to jail to get involved and help in the cornmi ssion of what his religious belief regards as amounting to the murder of a child. And this is in order to satisfy [P. 19] the need of the woman and her partner for sex without pregnancy. Remember, this is not the case of a bleeding woman needing immediate medical attention.

The Court has correctly decided to annul Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly section 5.24, as unconstitutional insofar as they punish any health care provider who fails and/or refuses to refer a patient not, in an emergency or life-threatening case, to another health care service provider within the same facility or one which is conveniently accessible regardless of his or her religious beliefs.

Section 23(a)(1) and the Principle of Void for Vagueness

Due process demands that the terms of a penal statute must be sufficiently clear to inform those who may be subjected to it what conduct will render them liable to its penalties. A criminal statute that "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute," or is so indefinite that "it encourages arbitrary and erratic arrests and c·onvictions," is void for vagueness. A vague or indefinite statute is unconstitutional because it places the accused on trial for an offense, the nature of which he is given no fair waming.35

Section 23(a)(1) of the RH Law provides:

Section 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;

The public health care service provider referred to are of course the hospitals, the doctors, the nurses, the midwives, and the other health workers described elsewhere in the law.36 They will, if found guilty of the offense, suffer imprisonment of 1 to 6 months or a fine of P 10,000 to PI 00,000 or both imprisonment and fine.37

Petitioners contend that Section 23(a)(1) above is void for vagueness. But some points out that the term "knowingly" used in the law, assailed by petitioners as vague, is sufficiently clear in that it means awareness or deliberateness that is intentional and connotes malice.

[P. 20] But "knowingly" and "maliciously" have meanings that set them apart. "Knowingly" means mere awareness or deliberateness. "Maliciously," on the other hand, connotes an "evil intention."38 If the law meant to include malice as an ingredient of the offense described in Section 23(a)(1), it would have added the term "maliciously" to "knowingly." Nothing in the wordings of the law implies malice and the need for criminal intent. The crime as described is malum prohibitum.

The term "knowingly" is vague in the context of the law because it does not say how much information the offender must have regarding those programs and services as to charge with an obligation to impart it to others and be penalized if he "knowingly" fails to do so. The depth of a person's information about anything varies with the circumstances.

One who is running the programs or services would naturally have the kind of information that obligates him to disclose them to those who seek the same and be punished if he "knowingly" refuses to do so. Yet, this circumstance of direct involvement in the program or service is not required in Section 23(a)(1). On the other hand, one who merely reads about those programs and services, like a private hospital nurse who receives a letter offering free program on birth control, would know little of the detailed contents of that program and the competence of those who will run it. But since the law also fails to state what the term "information" means, that private nurse could be charged with "knowingly" withholding information about the birth control program she learned from reading mails if she does not disseminate it to others.

Another element of the offense is that the health care service provider must knowingly withhold or restrict dissemination of the information that he has. It fails to state, however, to whom he has an obligation to make a disclosure. It also gives him no discretion to decide to whom such information would be suitable and to whom not. Consequently, the health care service provider would be vulnerable to charges of violation of the law where he is denied the chance to know before hand when the obligation to disclose presents itself.

Section 23(a)(1) and the Freedom of Expression

Section 23(a)(1) also punishes any health care service provider who knowingly provides "incorrect" information regarding programs and services on reproductive health. But the RH Law does not define what is "correct" or "incorrect" infonnation regarding such programs and services. And it does not require the publication of what information are "correct" and what are "incorrect" sufficient to put prospective offenders on guard.

[P. 21] Besides there is no final arbiter in the world over issues concerning correct or incorrect reproductive health science on which reproductive health programs and services must depend. For instance, while Section 9 regards as law the scientific proposition that hormonal contraceptives and IUDs are safe and non-abortifacient, there is abundant medical and scientific evidence, some from the WHO itself, that they are not.

If the legislature can dictate what the truth is regarding medical and scientific issues of the day and send to jail those who disagree with it, this country would be in deep trouble. They threw Galileo into jail for saying that the earth was round when the authorities of his time believed that it was flat. Public health will be endangered if Congress can legislate a debatable scientific or medical proposition into a binding law and punish all dissenters, depriving them of their freedom of expression.

Most competent doctors read the latest in scientific and medical journals and reports. If these convince a doctor that oral pills and copper IUDs are not safe or work as abortifacient, he would be unable to tell his patients these until the law is repealed. Otherwise, he would be giving them "incorrect" information that would send him to jail. This places a health issue affecting public interest outside the scope of scientific and medical investigation.

The doctors who make up the Universal Health Care Study Group, on whose paper Congress relied on, hold the view that the life of the unborn child begins only from the moment of implantation of the embryo on the uterine wall, contrary to what the Constitution provides. This means that if they provide such "incorrect" information to their patients, they could go to jail for it. But no law should be passed outlawing medical or scientific views that take exceptions from current beliefs.

Moreover, the State guarantees under Section 2 of the RH Law the right of every woman to consider all available reproductive health options when making her decision. This implies that she has the right to seek advice from anyone she trusts. Consequently, if a woman wanting to space her pregnancy seeks the advice of a Catholic physician she trusts, the latter should not be sent to jail for expressing his belief that taking oral pills or using copper IUDs can cause abortion that her faith prohibits. This is valid even if others do not share the faith. Religious conscience is precisely a part of the consideration for free choice in family planning.

I concede, however, that my above views on Section 23(a)(1) could be better appreciated in actual cases involving its application rather than in the present case where I go by the bare provisions of the law. For now I am satisfied that Section 23(a)(1) has been declared void and unconstitutional insofar as it punishes any health care provider who fails or refuses to disseminate information regarding programs and services on reproductive [P. 22] health regardless of his or her religious beliefs.


32.  See Section 4 Definition ofTerms; par. (n) meaning of term "public health care service provider."

33. Section 24, RH Law.

34.  Ebralinag v. The Division Superintendent of School of Cebu, GR. No. 9 5770, 2 19 SCRA 256.

35.  People v. dela Piedra, G.R. No. 121777, January 24, 2001, 350 SCRA 163.

36.  See Section 4 Definition of Terms; par. (n) meaning of term "public health care service provider."

37.  Section 24, RH Law.

38.  Webster's Third New International Dictionary, p. 1367.