MEMORANDUM

TO FROM SUBJECT DATE : Dean Ulpiano Sarmiento III : Group 1 - C : Abortion in the Philippines : September 13, 2011

Question Presented: In relation to the United States Supreme Court ruling on Roe vs Wade, 410 US 113 (1973), can abortion be legally sought in the Philippines for the purpose of saving the mothers life e.g. in case of dangerous complications in her pregnancy? Short Answer: Yes. The Philippines, recognizes the necessity of resorting to abortion when continuing pregnancy may threaten the life or health of the mother, or otherwise stated, indispensable to save her life. Statement of Facts: Jane Roe, a single woman residing in Dallas County, Texas comes before the United States Supreme Court, seeking declaratory judgment that Texas criminal abortion statutes, particularly Articles 1191-1194 and 1196i thereof, are vague and unconstitutional on their face as they reduce her right to privacy and due process, said to be protected by the Ninth and Fourteenth Amendment respectively. Roe, being unmarried and pregnant, wishes to terminate her pregnancy by abortion, but is unable to get a legal abortion in Texas as she appears not to be threatened by the continuation of her pregnancy, an exemption established in aforementioned Article 1196 which allows an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, nor can she afford to obtain one from other jurisdiction. In ruling that Article 1196 is unconstitutional which means that the Texas abortion statutes, as a unit, must fall, in as much as it cannot be struck down separately for then the state would be left with a stature proscribing all abortion procedures no matter how medically urgent the case, the United States Supreme Court sustained the petitioners contention that Texas Abortion Statute, as it excepts from criminality only a life-saving procedure on behalf of the mother, without regard to the pregnancy stage and without recognition of the interests involved, is violative of the Due Process Clause of the Fourteenth Amendment. Discussion: Philippine Law on abortion is among the most restrictive in the world. Article II, Section 12 of the 1987 Constitution expressly provides that the state shall equally protect the life of the mother and the life of the unborn from conception. This provision affirms a policy against abortion and stipulates that the unborn has the dignity and worth of a human being from the moment of conception and has the right to be born well;

more so confirmed as such by the Bill of Rights (Article III, Section 1 of the 1987 Constitution) stating that No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. The law is clear that right to life belongs equally to all human beings, with no distinction based upon whether human life is full or merely "potential." Emphasis on this right is further corroborated by the Revised Penal Code, mandating imprisonment for the woman who undergoes abortion, as well as for any person who assists in the procedure, even if they be the woman's parents, a physician or midwife (Articles 256, 258 and 259, RPC). Article 257 even grants no exemption to any person who unintentionally causes abortion by violence, as in the case of People of the Philippine Islands vs Genoves [G.R. No. L-42819] where the defendant was convicted with a complex crime of homicide with abortion after maltreating a pregnant co-worker, whose fall to the ground lead to hemorrhage and premature delivery, and eventually death of the latter and her twin babies. Lastly, Article 258 further imposes a higher prison term on the woman or her parents if the abortion is undertaken "in order to conceal [the woman's] dishonor." However, despite the foregoing provisions, and in the absence of any law granting expressed exemption thereto, the law on abortion warrants a construction that shall not work injustice and hardship on the part of the mother in cases of pregnancies detrimental to her life or health. Article II, Section 12 of the 1987 Constitution does not assert that the life of the unborn is placed on exactly same level as the life of the mother. It recognizes that, when indispensable to save the life of the mother, it may be necessary and legitimate to sacrifice the life of the unborn. It, however, denies that the life of the unborn may be sacrificed merely to save the mother from emotional suffering or to spare the child from life of poverty (S.J., Joaquin G., The 1987 Constitution of the Philippines: A Commentary, 2009 Edition, pp. 85). As worded by the sponsors of said constitutional provision, the formulation is adequate and proper in as much as it gives due regard to the life of the mother for therapeutic purposes or in case of ectopic pregnanciespregnancies or gestation elsewhere than in the uterus (Websters Third International Dictionary)and such other medical condition or illness where continuing pregnancy may threaten her life or health, as hypertension, eclampsia, diabetes, and various forms of cancer, including those affecting the breast, the ovary and the cervix. The principle that when indispensable to save the life of the mother, it may be necessary and legitimate to sacrifice the life of the unborn is as much implied and embraced in Article 11 paragraph 4 of the Revised Penal Code, providing that Any person who, in order to avoid an evil or injury, does an act which cases damage to another shall not incur criminal liability provided that the following requisites are present: (1) That the evil sough to be avoided actually exists, (2) That the injury feared be greater than that done to avoid and (3) That there be no other practical and less harmful means of preventing it. In view of this provision and principle involved, the killing of a fetus to save the life of the mother may be held excusable, more so, as provided by the

second requisite, the instinct of self-preservation will always make one feel that his own safety is of greater importance than that of another (Reyes, Luis B., THE REVISED PENAL CODE, 11th Edition, 2008, pp. 202). The ruling of the Supreme Court in Geluz vs Court of Appeals [2 SCRA 801], even mentioned in passing that the act of the appellant in provoking the abortion of Geluzs (appellant) wife, without medical necessity to warrant it, was a criminal and morally reprehensible act. Thus, considering all foregoing statements, it is warranted to say that some Physician-Ob/Gyn may perform the procedure only when the same is necessary for therapeutic purposes to save the life of the woman and with the consent of the family. Conclusion: To reiterate and repeat, abortion in the Philippines is illegal and there is no law explicitly allowing its performance for any reasons. However, as recognized from the intention of Article II Section 12 of the 1987 Constitution, in as much as it suggests a policy against abortion, it likewise recognizes the necessity and legitimacy of sacrificing the life of the unborn when indispensable for therapeutic purposes to save the life of the mothersuch as in instances of ectopic pregnancies and other medical condition or illness. In this case, the act of abortion, which is considered illegal, may be legally performed if needed to protect the greater good, as founded by the grounds of necessity, embodied in Article 11 paragraph 4 of the Revised Penal Code.

TEXAS PENAL CODE Articles 11911194, 1196, at 42936 (1961); Article 1191 set forth a punishment of two to five years' imprisonment for "any person" who would "procure an

abortion" for a pregnant woman by: 1) "designedly administer[ing] ... any drug or medicine", 2) "knowingly procur[ing] to be administered ... any drug or medicine" and 3) using "towards her any violence or means whatever externally or internally applied. The penalty would double "if it be done without her consent. Article 1192 set forth accomplice liability for any person who "furnishes the means for procuring an abortion knowing the purpose intended". Article 1193 set forth a fine of $100-$1,000 for a person who engages in means "calculated to produce" an abortion but that fail to do so. Article 1194 set forth that, "if the death of the mother is occasioned" by an abortion or attempted abortion, "it is murder." Article 1196 carved out an exception for an abortion "procured or attempted by medical advice for the purpose of saving the life of the mother."