SC upholds #RHLaw , legal implications : Guide for Reporters

The right to health which includes reproductive health is one of those rights that fall under “economic rights”, or, more technically, “economic, social, and cultural rights” enshrined in the International Covenant on Economic, Social, and Cultural Rights.

      In the Philippine Constitution, these rights are embodied in the motherhood provisions of Art. XIII on “Social Justice and Human Rights”.

     The approval of the RH Law and the validation of its salient provisions by the Supreme Court elevates this economic right to the status of a legally demandable right.

     Big words. “Legally demandable right”. What does that mean?

     Normally, or generally, the motherhood provisions of Art. XIII “Social Justice and Human Rights” (Art. XIII 1987 Constitution reiterating some provisions of the International Covenant on Economic, Social, and Cultural Rights) require an enabling law or enabling acts to be enforcible. Absent a law, these motherhood provisions do not create “legally demandable rights”. They are not like the provisions of the Bill of Rights, which enshrine civil liberties – those rights [fundamental civil liberties, like the right not be deprived of life (not to be put to death) without the chance to defend yourself in a trial, or the right not to be deprived of liberty (not to be jailed) without trial] – those rights are so fundamental that they are enforcible without need of an enabling law. In other words, if you are jailed without charges beyond 12, 18, 36, you could sue government (the PNP or AFP or the NBI or the DOJ, etc) and get a court order to set yourself free (a habeas corpus writ). See – it’s legally enforcible, you can sue government and force government to observe your right; if your jailer disobeys the writ, you can send him to jail immediately for contempt.

    “Social, economic, and cultural rights”, on the other hand (like, for example, the right to adequate housing, the right to health care, the right to education) require enabling laws. In other words, without an enabling law, they are not legally enforcible. For example, if you are homeless, you cannot sue government to force government to give you a house, or, failing which, send the housing official to jail – you can’t — not without an enabling law —  it’s not a legally demandable right.

     If you could see this framework, you would realize how this law, in elevating the right to reproductive health to a legally demandable right, turns the century around.

     The Supreme Court upheld the most important provisions of the RH Law — those requiring government to fund and make accessible reproductive health services, information, and education. Those rights have become legally enforcible.

     A representative of the anti-RH bill groups said in an interview that the Supreme Court rendered the RH Law “toothless” or “defanged” it.

    Well, more like , de-whiskered it.

    If you take a look at the RH Law, you would see that the SC tweezed out a few whiskers. Here’s an example:

    The entire Section 7 states (I bracketed, put multiple x’s and rendered in pink color, the  clauses of Section 7 that were invalidated by the SC so you will not make the mistake of still reading it into the provision but I retained the entire provision to illustrate the point):

     Sec. 7. Access to Family Planning. – All accredited public health facilities shall provide a full range of modern 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 shall 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 x these x hospitals x shall x immediately x refer x the x person x seeking x such x care x and x services x to x another x health x facility x which x is x conveniently x accessible:] Provided, finally, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344.
No person shall be denied information and access to family planning services, whether natural or artificial: Provided, That minors will not be allowed access to modern methods of family planning without written consent from their parents or guardian/s [x except x when x the x minor x is already x a parent x or x has x had x a x miscarriage. ]

      Do you see the entire provision? Do you see what “whiskers” were taken out?

    (if you want the text of the dispositive portion of the SC decision, it’s online — the paragraph on Section 7  reads: “1) Section 7, and the corresponding provision in the RH-IRR insofar as they: (a) require private health facilities and non-maternity specialty hospitals and hospitals owned and operated by a religious group to refer patients, not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to another health facility which is conveniently accessible; and (b) allow minor-parents or minors who have suffered a miscarriage access to modern methods of family planning without written consent from their parents or guardian/s;”).

      The most important provisions of the RH Law, to my mind, are Sections 7, 8, 9, 10, 11, 14, 16, 20, 23, 24. 

      The Supreme Court reporters who broke the news, and the resource persons who discussed the SC announcement, failed to situate those clauses enumerated by the SC spokesperson within the entire provisions themselves, which remain in effect. In fact, the SC did not invalidate entire provisions, but only pulled out certain clauses, or parts of a provision.
     

     When editors or news directors or resource persons fail to show the entirety of the most important provisions that remain in effect, and fail to situate the invalidated clause within the entire provision which is bigger, they fail to see the point, fail to show the millennial shift.
       

       Forest for the trees, sweetie.

       Fowwest… fo tha… tweees — gubat for da kuli—sap (ngeh ehek)