THE RH LAW vis-à-vis CRIMINAL

AND CONSTITUTIONAL LAW

SAINT LOUIS UNIVERSITY – SCHOOL OF LAW

What is a Law?
A Law is a rule of
conduct, just, obligatory
promulgated by legitimate
authority, and of common
observance and benefit.
 Promulgated by Legitimate Authority
(How laws are made)
1. The President will present his legislative agendas to the
Congress through the State of the Nation Address
(SONA)
2. The Congress through the House of Representatives and
Senate will make laws.
3. The President will approve or veto the laws.
4. In special circumstances, laws can be questioned before
the Supreme Court who will interpret the laws if such
are constitutional (consistent with our fundamental
freedoms - freedom of expression, religion, etc.)
 RA 10354 “Responsible Parenthood and
Reproductive Health Act of 2012”
Basic Purpose: Population Control
 RH LAW VIS-À-VIS CRIMINAL LAW
STATE POLICY AND GUIDING PRINCIPLES
The constitution provides:

SECTION 12, Article II of the 1987 Constitution:

The State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the
life of the mother and the life of the unborn from
conception. The natural and primary right and duty of
parents in the rearing of the youth for civic efficiency
and the development of moral character shall receive
the support of the Government.
STATE POLICY AND GUIDING PRINCIPLES

 The State likewise guarantees universal access to medically-

safe, non-abortifacient, effective, legal, affordable, and
quality reproductive health care services, methods, devices,
supplies which do not prevent the implantation of a
fertilized ovum as determined by the Food and Drug
Administration (FDA) and relevant information and education
thereon according to the priority needs of women, children
and other underprivileged sectors, giving preferential access
to those identified through the National Household Targeting
System for Poverty Reduction (NHTS-PR) and other
government measures of identifying marginalization, who
shall be voluntary beneficiaries of reproductive health care,
services and supplies for free.
STATE POLICY AND GUIDING PRINCIPLES

 Section 3. Guiding Principles for Implementation

(j) While this Act recognizes that abortion is illegal

and punishable by law, the government shall ensure
that all women needing care for post-abortive
complications and all other complications arising from
pregnancy, labor and delivery and related issues shall
be treated and counseled in a humane, nonjudgmental
and compassionate manner in accordance with law and
medical ethics
 ABORTION LAWS
 Under Philippine laws, THERE IS NO LEGAL
ABORTION, except to save the mother’s life
(State of Necessity)
Elements of State of Necessity:
1. Evil sought to be avoided actually exists;
2. Injury feared be greater than that done to
avoid it; and
3. No other practical or less harmful means of
preventing it.
4 KINDS OF ABORTION UNDER THE
REVISED PENAL CODE
1. Intentional Abortion
2. Unintentional Abortion
3. Abortion Practiced by the Woman
Herself or by her parents
4. Abortion Practiced by a Physician or
Midwife and Dispensing Abortives
 This is where pharmacists can be held
liable.
 LIABILITY OF PHARMACISTS

As to Pharmacists, the elements are:

1. That the offender is a pharmacist;

2. That there is no proper prescription
from a physician;
3. That the offender dispenses any
abortive.
What if the abortifacient was not used
by the woman?
ANSWER:

As to pharmacists, the crime is consummated by

dispensing abortive without proper prescription
from a physician. It is not necessary that the
abortive was actually used.
What if the Pharmacist does not know
that it was an abortifacient?
ANSWER:
It is immaterial that the pharmacist
knows that the abortive would be
used for abortion. Otherwise, he shall
be liable as an accomplice should
abortion result from the use thereof.
 PENALTY
 Any pharmacist who, without the proper
prescription from a physician, shall dispense
any abortive shall suffer arresto mayor and a
fine not exceeding 1,000 pesos (Revised
Penal Code)

Consider: RA 10951, 2017. Penalty

prescribed is Arresto Mayor and fine not
exceeding P100,000.00
RH LAW VIS-À-VIS CONSTITUTIONAL LAW

The Constitution basically

balances the powers of the state
and the rights of its citizens, such
as Right to Life, Liberty, Property,
Freedom of Expression, Freedom
of Religion, Academic Freedom,
etc.
IMBONG vs. OCHOA CASE (2012)
 Right after the RH Law was enacted and approved by the President,
the law was immediately questioned by several groups before the
Supreme Court.

Contention: RH Law violated the following:

 Right to Life

 Right to Health

 Freedom of religion and right to free speech

 Right to privacy (marital autonomy)

 Freedom of expression and academic freedom

 Due process clause

 Equal protection clause

 Prohibition against involuntary servitude

 RIGHT TO LIFE
Contention: RH Law violates the right to Life of the unborn.

Supreme Court: The framers of the Constitution also

intended for (a) “conception” to refer to the moment of
“fertilization” and (b) the protection of the unborn child
upon fertilization. In addition, they did not intend to ban all
contraceptives for being unconstitutional; only those that
kill or destroy the fertilized ovum would be prohibited.
Contraceptives that actually prevent the union of the male
sperm and female ovum, and those that similarly take action
before fertilization should be deemed non-abortive, and
thus constitutionally permissible.
 RIGHT TO HEALTH
Contention: RH Law violates right to
health by MANDATING The Philippine
National Drug Formulary to include
contraceptives and abortifacients which
are dangerous. They cite risks of getting
diseases gained by using e.g. oral
contraceptive pills.
Section 9. The Philippine National Drug Formulary System and Family Planning
Supplies. – The National Drug Formulary shall include hormonal
contraceptives, intrauterine devices, injectables and other safe, legal, non-
abortifacient and effective family planning products and supplies. The
Philippine National Drug Formulary System (PNDFS) shall be observed in
selecting drugs including family planning supplies that will be included or
removed from the Essential Drugs List (EDL) in accordance with existing practice
and in consultation with reputable medical associations in the Philippines. For
the purpose of this Act, any product or supply included or to be included in the
EDL must have a certification from the FDA that said product and supply is
made available on the condition that it is not to be used as an abortifacient.

These products and supplies shall also be included in the regular purchase of
essential medicines and supplies of all national hospitals: Provided, further, That
the foregoing offices shall not purchase or acquire by any means emergency
contraceptive pills, postcoital pills, abortifacients that will be used for such
purpose and their other forms or equivalent.
 RIGHT TO HEALTH
Supreme Court:
The RH Law does not intend to do away with RA 4729
(1966). With RA 4729 in place, the Court believes
adequate safeguards exist to ensure that only safe
contraceptives are made available to the public. In
fulfilling its mandate under Sec. 10 of the RH Law, the
DOH must keep in mind the provisions of RA 4729: the
contraceptives it will procure shall be from a duly
licensed drug store or pharmaceutical company and
that the actual distribution of these contraceptive drugs
and devices will be done following a prescription of a
qualified medical practitioner.
 RIGHT TO HEALTH
Meanwhile, the requirement of Section 9 of the RH
Law is to be considered “mandatory” only after
these devices and materials have been tested,
evaluated and approved by the FDA. Congress
cannot determine that contraceptives are “safe,
legal, non-abortificient and effective”.

***REPUBLIC ACT NO. 4729 - AN ACT TO REGULATE

THE SALE, DISPENSATION, AND/OR DISTRIBUTION
OF CONTRACEPTIVE DRUGS AND DEVICES
 FREEDOM OF RELIGION AND SPEECH

Section 23. Prohibited Acts:

(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
penalizes the refusal of hospitals and medical clinics to administer
appropriate initial medical treatment and support in emergency and
serious cases.
 FREEDOM OF RELIGION AND SPEECH

Section 24. Penalties.

Any violation of this Act or commission of the foregoing
prohibited acts shall be penalized by imprisonment
ranging from one (1) month to six (6) months or a fine of
Ten thousand pesos (P10,000.00) to One hundred
thousand pesos (P100,000.00), or both such fine and
imprisonment at the discretion of the competent court:
Provided, That, if the offender is a public officer, elected or
appointed, he/she shall also suffer the penalty of
suspension not exceeding one (1) year or removal and
forfeiture of retirement benefits depending on the gravity
of the offense after due notice and hearing by the
appropriate body or agency.
SITUATION
Nurse AAA is a Catholic and adheres to the
teachings of the Church. He is against contraceptives
believing them to be against life. BBB, his client asks him
regarding contraceptives. Because of his beliefs, he
does not want to give any advice. BBB wants to be
referred to another medical professional. AAA refuses
because it is contrary to his beliefs.

Should AAA be imprisoned for violating the RH law?

Supreme Court: These provisions violate the religious
belief and conviction of a conscientious objector.
 RIGHT TO PRIVACY
 Prohibited Acts:
Sec. 23. (2) Refuse to perform legal and medically-safe
reproductive health procedures on any person of legal
age on the ground of lack of consent or authorization
of the following persons in the following instances:

(i) Spousal consent in case of married persons:

Provided, That in case of disagreement, the decision
of the one undergoing the procedure shall prevail;
SITUATION
Situation 1: A man wants a vasectomy from Dr. B. He
asks his wife if she would agree. She does not because
she wants to have children. The man goes through the
vasectomy anyway.

Should Dr. B allow the vasectomy against the consent

of A’s wife?
ANSWER

 NO.
The RH Law cannot infringe upon this mutual decision-making,
and endanger the institutions of marriage and the family.

Article XV, Section 3, of the 1987 Constitution provides: The

State shall defend:

(1) The right of spouses to found a family in accordance with

their religious convictions and the demands of responsible
parenthood;

(4) The right of families or family associations to participate in

the planning and implementation of policies and programs that
affect them.
SITUATION
A, a 13-year old mother, wants a ligation from Dr. B. A
did not get her parents’ consent in the operation.

Should Dr. B proceed with the ligation of A without the

consent of A’s parents?

Supreme Court: The exclusion of parental consent in cases

where a minor undergoing a procedure is already a parent
or has had a miscarriage is anti-family and violates Article
II, Section 12 of the Constitution. The natural and primary
right and duty of parents in the rearing of the youth for
civic efficiency and the development of moral character
shall receive the support of the Government.”
 ANSWER:
 NO. The exclusion of parental consent in cases
where a minor undergoing a procedure is already
a parent or has had a miscarriage is anti-family
and violates Article II, Section 12 of the Constitution.
The natural and primary right and duty of parents
in the rearing of the youth for civic efficiency and
the development of moral character shall receive
the support of the Government.”
Sec. 7. 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 except when the
minor is already a parent or has had a
miscarriage.
RIGHT TO EQUAL PROTECTION OF LAWS

Section 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.
SITUATION
What if the couples having infertility issues are not poor
and marginalized, can they have access, as well, to modern
family planning methods introduced by the RH Law?
Supreme Court:
According to a long line of decisions, equal protection
simply requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and
responsibilities imposed." It "requires public bodies and
institutions to treat similarly situated individuals in a similar
manner." "The purpose of the equal protection clause is to
secure every person within a state's jurisdiction against
intentional and arbitrary discrimination, whether occasioned by
the express terms of a statue or by its improper execution
through the state's duly constituted authorities."
It should be noted that Section 7 of the RH Law
prioritizes poor and marginalized couples who are
suffering from fertility issues and desire to have
children. There is, therefore, no merit to the contention
that the RH Law only seeks to target the poor to reduce
their number. While the RH Law admits the use of
contraceptives, it does not, as elucidated above,
sanction abortion. As Section 3(1) explains, the
"promotion and/or stabilization of the population
growth rate is incidental to the advancement of
reproductive health."

Effect: Section 7 of the RH Law is valid.

 RIGHT AGAINST INVOLUNTARY SERVITUDE

Section 17. Private and nongovernment reproductive

healthcare service providers including, but not limited to,
gynecologists and obstetricians, are encouraged to
provide at least forty-eight (48) hours annually of
reproductive health services, ranging from providing
information and education to rendering medical services,
free of charge to indigent and low-income patients as
identified through the NHTS-PR and other government
measures of identifying marginalization, especially to
pregnant adolescents. The forty-eight (48) hours annual
pro bono services shall be included as a prerequisite in
the accreditation under the PhilHealth.
SITUATION
What if a medical practitioner refuses to render
forty-eight (48) hours of the pro bono or free
reproductive health service, will it amount to a
violation of his right against involuntary servitude?
 ANSWER: NO.
 It should first be mentioned that the practice of
medicine is undeniably imbued with public interest
that it is both a power and a duty of the State to
control and regulate it in order to protect and
promote the public welfare.
 Involuntary Servitude connotes the presence of
force, threats, intimidation or other similar means of
coercion and compulsion.
The challenged provision reveals that it only
encourages private and non-government reproductive
healthcare service providers to render pro bono
service.

Further, no penalty is imposed should they refuse to

render pro bono service.
THANK YOU FOR LISTENING! 