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Liberty, privacy and reproductive freedom

Thursday, 23 June 2011 00:00

THE major opposition to the Reproductive Health Bill is anchored on the provisions involving artificial contraceptives. Those who condemn the bill espouse the view that contraceptives are intrinsically evil and making them readily available would promote immorality and promiscuity. Moreover, it is contended that by making contraceptives accessible to the masses would wittingly or unwittingly foster and promote abortion. Contraceptives, they say, can be used as abortifacient to curtail life thus subverting the right to life of the innocent and helpless. In fact there is a recent move in the Senate led by Senate President Juan Ponce Enrile for the enactment of the Protection of the Unborn Child Act. Senate Bill No. 2497 seeks to counter the RH Bill by prohibiting all forms of contraceptives in the country for the purpose of protecting the unborn from conception.

Interestingly, the proponents of the Reproductive Health Bill vehemently deny that it seeks to legalize abortion. They aver that there is nothing in the proposed measure that provides for the legalization of abortion. On the contrary, they further claim that the bill is pro-life as it will prevent infant and child deaths. In the same vein, the measure seeks larger investments in children's health and Education and better health outcomes for children. Ironically, other religious groups like the Iglesia ni Cristo and the United Church of Christ voiced their support on the RH bill. These religious groups undeniably shun abortion, but still found nothing in the measure which sanctions abortion. For these groups, reproductive health does not necessarily mean abortion and use of contraceptives is not equivalent to killing the innocent.

Frankly, the advent of the Protection of the Unborn Child Act and the Reproductive Health bill is a welcome development since it accentuates the legal ramification of absolute ban on contraceptives. The Protection of the Unborn Child Act puts in proper perspective the legality of the proposal to ban contraceptives. This is in line with the position taken by most clerics who claim that contraceptives are intrinsically evil hence should be totally forbidden. Indeed, at first brush the prohibition on contraceptives seems laudable as it purportedly seeks to prevent abortion. However, a more thorough reflection of the means used in preventing abortion would show that it suffers from constitutional infirmity. A total ban on contraceptives violates the right to liberty and privacy of the individual to freely choose and decide for himself or herself whether to have an offspring or not. This is a fundamental right afforded each person under the Constitution.

It is well entrenched that to sustain any police power measure it is essential that the interests of the public generally, as distinguished from those of a particular class, require its exercise and the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. In short, there must be a concurrence of a lawful subject and a lawful method.

It must also be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded. Consequently, even if the purpose of the law is within the scope of the police power of the State, the same will still be annulled if the means employed contravenes the Constitution. Indeed, as the fundamental and paramount law of the Land, no act shall be valid however noble its intentions if it contravenes the Constitution.

The Constitution must ever remain supreme and all must bow to its mandate. Accordingly, the lawful objective of any law must be pursued through a lawful method. Absent a lawful means, the police measure must be struck down as it amounts to an arbitrary infringement of private rights. Thus in Association of Small Landowners vs. Secretary of Agrarian Reform the High Court observed:
"One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right."

The foregoing disquisition gains significance in view of the fact that a total ban on contraceptives breach fundamental right of liberty and privacy. Indeed, at the heart of the debate over contraceptives lies the fundamental question of whether the State can propose measures that would deny married couples or unmarried individuals access to contraceptives thus subverting their right t liberty and privacy. Otherwise stated, can the State deprive the individual, married or single, the right to decide matters so fundamental as the question whether to bear or beget a child.

REPRODUCTIVE FREEDOM IS A CONSTITUTIONAL RIGHT EMBRACED BY THE RIGHT TO LIBERTY UNDER THE CONSTITUTION.

Guided by the foregoing considerations, I begin with the proposition that under the Constitution, neither the State nor the Church can dictate or impose upon any person what mode of family planning method or methods to pursue. The choice whether to use contraceptives rest primarily on individuals and couples. This is so because the decision to use (or not to use) contraceptives is his or her prerogative in accordance with the right to personal liberty and privacy afforded each individual under the fundamental law. It should be underscored that liberty under the Constitution is not confined to freedom from bodily restraint.

The Constitution protects "liberty of the person both in its spatial and in its more transcendent dimensions." Chief Justice Reynato Puno in his concurring opinion in Ang Ladlad LGBT vs. Comelec explains the concept of liberty thus: "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to the liberty protected by the due process clause. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

Clearly liberty includes individual decision-making on intimate questions of marriage, procreation, contraception, family relationship, child rearing, and Education. Accordingly in Lawrence v. Texas:
"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the State."

Needless to say, liberty embraces reproductive freedom. Reproductive freedom asserts that everyone has a right to reproductive self determination. Thus, every individual have the right to decide when and how often he or she becomes a parent. In fact, he or she is free to decide whether to become a parent at all. This is the underlying philosophy that animates the Reproductive Health Bill. The measure is anchored on the principle that everyone has the right to reproductive self-determination. Every individual has the right to make an informed choice.
For, the right to self determination and the right to an informed choice is the essence of liberty itself.

The author is connected with the Rebolos, Sanchez and Bonoan Law Office in Cagayan de Oro. He holds bachelor degrees in political science and laws from Silliman University.