understanding the supreme court decision on the rh law

Understanding the Supreme Court Decision on the RH LawBriefing on the Decision of the Supreme Court of the Philippines in the consolidated case of Imbong v. Ochoa (G.R. Nos. 204819, 204934, 204957, 204988, 205003, 205043, 205138, 205478, 205491, 205720, 206355, 207111, 207172 & 207563, April 8, 2014) assailing the constitutionality of RA 10354

Albert Francis E. Domingo, MD

Updated draft as of 19 May 2014. Note: The analyses of this presentation may still change until the Decision becomes final and executory.

Disclaimers

This presentation is made possible by the generous support of the American people through the United States Agency for International Development (USAID). The contents are the responsibility of Dr. Albert Francis E. Domingo, and do not necessarily reflect the views of UPecon Foundation, Inc., USAID, or the United States Government.

It is highly encouraged that the SC Decision and Concurring/Dissenting Opinions be read in their full text.

The DOH has official FAQs with answers: DC No. 2014-0199.

Reference: Internal Rules of the Supreme Court (A.M. No. 10-4-20-SC, May 4, 2010)

How the Supreme Court Decides1. Submission of decisions

and resolutions

2. Promulgation

3. Service, dissemination, and publication

4. 15-day reglementary period for motion for reconsideration (MR)

5. Decision deemed final if no MR is filed in due time (if an MR is filed, execution of decision is stayed)

6. Once decision becomes final, entry of judgment is made within 15 days after the period for MR expires (or immediately if the Court requires it)

While the GPH/DOH through the OSG decided not to file an MR, other party-litigants did (as of 28 April).

(after oral arguments and memoranda…)

Reading a Decision

The Result is what the Members of the Court have voted upon, and is contained in the dispositive portion

The Ratio decidendi (rationes decidendi, plural) or “reason/s for the decision” are the arguments in support of the Result These are binding for purposes of judicial precedent

Obiter dicta (obiter dictum, singular) are “by the way” remarks in a judgment or decision that are “said in passing” These are only persuasive for purposes of judicial precedent

Outline

1. The Result: Some Items Unconstitutional2. Rationes Decidendi and Obiter Dicta3. Other Key Provisions Not Unconstitutional4. Suggested Compliance

The Result:Some Items UnconstitutionalRulings on specific provisions of both the Republic Act and its IRR

The Dispositive Portion

WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except with respect to the following provisions which are declared UNCONSTITUTIONAL:xxx

Reference: Decision, Imbong v. Ochoa, p. 103

1a. The requirement to refer patients seeking MFP methods is restricted

Who: Private health facilities, non-maternity specialty hospitals, and hospitals owned and operated by a religious group

What: Cannot be required to refer patients not in an emergency or life-threatening case* to another health facility for MFP services

*as defined under Republic Act No. 8344

Affected Section(s) in the RA: 7 Affected Section(s) in the IRR: 5.21, 5.22


1b. Parental consent is needed for minors to access MFP methods

Who: Minor-parents or minors who have suffered a miscarriage

What: Cannot be allowed access to modern methods of family planning without written consent from their parents or guardian/s

Affected Section(s) in the RA: 7 Affected Section(s) in the IRR: 4.06, 4.07


2. Health care providers not disseminating information on RH cannot be punished

Who: Any health care provider, regardless of his or her religious beliefs

What: Cannot be punished for failure or refusal to disseminate information regarding programs and services on RH

Affected Section(s) in the RA: 23(a)(1) Affected Section(s) in the IRR: 5.24, 16.01(a)(1)


3. The consent of the spouse is required for married individuals to undergo RH procedures

Who: A married individual not in an emergency or life-threatening case*

What: Cannot undergo reproductive health procedures without the consent of his/her spouse


Affected Section(s) in the RA: 23(a)(2)(i) Affected Section(s) in the IRR: 16.01(a)(2)(i)


4. Health care providers not referring non-emergent patients for RH services or information cannot be punished

Who: Any health care provider, regardless of his or her religious beliefs

What: Cannot be punished for failure or refusal to refer a patient not in an emergency or life-threatening case* for RH services or information to another health care service provider within the same facility or one which is conveniently accessible


Affected Section(s) in the RA: 23(a)(3) Affected Section(s) in the IRR: 5.24, 5.25, 16.01(a)(3)


5. Any public officer hindering full RH implementation or not supporting RH cannot be punished

Who: Any public officer, regardless of his or her religious beliefs

What: Cannot be punished for refusing to support RH programs, or doing any act that hinders the full implementation of an RH program

Affected Section(s) in the RA: 23(b) Affected Section(s) in the IRR: 5.24


6. Any conscientious objector cannot be required to render pro-bono RH service to be accredited by PhilHealth

Who: Any conscientious objector What: Cannot be required to render pro-bono

reproductive health service as prerequisite for PhilHealth accreditation

Affected Section(s) in the RA: 17 Affected Section(s) in the IRR: 6.11


7. An abortifacient is any drug or device that can destroy a fetus or prevent the implantation of a fertilized ovum

Abortifacient refers to any drug or device that primarily induces abortion or the destruction of a fetus inside the mother’s womb or the prevention of the fertilized ovum to reach and be implanted in the mother’s womb upon determination of the FDA.

Contraceptive refers to any safe, legal, effective, and scientifically proven modern family planning method, device, or health product, whether natural or artificial, that prevents pregnancy but does not primarily destroy a fertilized ovum or prevent a fertilized ovum from being implanted in the mother’s womb in doses of its approved indication as determined by the Food and Drug Administration (FDA).

Affected Section(s) in the RA: none Affected Section(s) in the IRR: 3.01(a), 3.01(j)

Reference: Decision, Imbong v. Ochoa, pp. 52, 53, 104

“… the authors of the RH-IRR gravely abused their office when they redefined the meaning of abortifacient.”

8. Health service providers who will require parental consent from minors not in emergencies or serious situations cannot be punished Who: Any health service provider What: Cannot be punished for requiring

parental consent from a minor not in an emergency or serious situation

Affected Section(s) in the RA: 23(a)(2)(ii) Affected Section(s) in the IRR: 4.07, 16.01(a)(2)(ii)


The Dispositive Portion

xxxThe Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order, dated July 16, 2013, is hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have been herein declared as constitutional.SO ORDERED.


Rationes Decidendiand Obiter DictaProcedural matters and reasons for the decision

Binding or persuasive?

If it is related to any item in the Result, then the argument is ratio decidendi and is therefore binding

If it is NOT related to any item in the Result, then the argument is obiter dictum and is therefore only persuasive

What is the RH Law?Despite efforts to push the RH Law as a reproductive health law, the Court sees it as principally a population control measure.… the RH Law does not sanction the taking away of life. It does not allow abortion in any shape or form. It only seeks to enhance the population control program of the government by providing information and making non-abortifacient contraceptives more readily available to the public, especially to the poor.

Reference: Decision, Imbong v. Ochoa, pp. 34, 101

Emphasis supplied

What is the RH Law?

Indeed, at the present, the country has a population problem, but the State should not use coercive measures (like the penal provisions of the RH Law against conscientious objectors) to solve it.


Emphasis supplied

When does life begin?

Majority of the Members of the Court are of the position that the question of life begins is a scientific and medical issue that should not be decided, at this stage, without proper hearing and evidence…Naitakda na sa Saligang Batas, at alinsunod naman dito ang RH Law, na ang buhay ay pangangalagaan mula sa conception. Kung ano ang puntong iyon ay katanungan para sa mga dalubhasa ng siyensiya, at hindi para sa Korte Suprema.

Reference: Decision, Imbong v. Ochoa, pp. 39, 49; also Opinyong Sumasang-ayon at Sumasalungat, Sereno, CJ., p. 2

Emphasis supplied

When does life begin?

R.A. No. 10354 … protects the ovum upon its fertilization without saying that life begins upon fertilization … whether life begins upon fertilization or upon implantation of the fertilized ovum on the uterus wall, R.A. No. 10354 protects both asserted starting points of human life. Absent a definitive consensus from the scientific and medical community, this Court cannot venture to pronounce which starting point of human life is correct.

Reference: Concurring Opinion, Carpio, J., Imbong v. Ochoa, p. 2

Color emphasis supplied

What is an abortifacient?…an abortifacient is any drug or device that either:(a) Induces abortion; or(b) Induces the destruction of a fetus inside the mother’s womb; or(c) Prevents the fertilized ovum to reach and be implanted in the mother’s womb,upon determination of the FDA.


Emphasis in the original

What is an abortifacient?… despite the recognition of abortion only at a late stage from the strict medical viewpoint, the RH Law’s implied definition of abortion is broad enough to extend the prohibition against abortion to cover the fertilized egg or the zygote…

Reference: Separate Concurring Opinion, Brion, J., Imbong v. Ochoa, p. 23

What contraceptives may be allowed?

…the undeniable conclusion is that contraceptives to be included in the PNDFS and the EDL will not only be those contraceptives that do not have the primary action of causing abortion or the destruction of a fetus inside the mother’s womb or the prevention of the fertilized ovum to reach and be implanted in the mother’s womb, but also those that do not have the secondary action of acting the same way.


What contraceptives may be allowed?

It is of course difficult to be completely positive that a contraceptive primarily intended to prevent ovulation or fertilization of the ovum will absolutely not prevent implantation on the uterine wall and cause abortion. The lack of convincing empirical evidence that it is so may be an acceptable excuse. It is the certainty from the beginning, however, that a given contraceptive has the inherent and substantial potential for causing abortion that is not acceptable.

Reference: Concurring Opinion, Abad, J., Imbong v. Ochoa, p. 13

Emphasis supplied

Who determines what contraceptives are abortifacient or not?While an abortifacient is outlawed by the Constitution and the RH Law, the practical problem in its enforcement lies in the determination of whether or not a contraceptive drug or device is an abortifacient. This is where expert medical opinion is imperative. The character of the contraceptive as an abortifacient or non-abortifacient cannot be legislated or fixed by law and should be confined to the domain of medical science.

Reference: Concurring Opinion, Leonardo-De Castro, J., Imbong v. Ochoa, pp. 7-8

Emphasis supplied

Who determines what contraceptives are abortifacient or not?By their nature, hormonal contraceptives and IUDs interfere with the woman’s normal reproductive system. Consequently, the FDA, which has the required technical competence and skills, need (sic) to evaluate, test, and approve their use. The RH Law acknowledges this need in its policy statements in Section 2, in its guidelines for implementation in Section 3, and in its definition of terms in Section 4(a). It is consistent with the FDA law and no one can object to it.

Reference: Concurring Opinion, Abad, J., Imbong v. Ochoa, p. 6

Emphasis supplied

Standards that the FDA Should Follow

In determining whether a drug or device is an abortifacient, the FDA will necessarily engage in a quasi-judicial function. It will determine whether a set of facts (active properties or mechanisms of a drug or device) comply with a legal standard (definition of non-abortifacient)…

In making the aforesaid determination, the FDA should follow the strict standards laid down in the Constitution, as adopted in the RH Law, as to what constitute allowable contraceptives…

Reference: Concurring and Dissenting Opinion, Del Castillo, J., Imbong v. Ochoa, p. 25

What should the FDA do?

… the FDA must formulate stringent and transparent rules of procedure in the screening, evaluation and approval of all contraceptive drugs and devices to ensure that they are safe, non-abortifacient and legal or compliant with the mandate of the Constitution and the law.

Reference: Concurring Opinion, Leonardo-De Castro, J., Imbong v. Ochoa, p. 8

Emphasis supplied

The SC Awaits the Actions of the FDA

… not a single contraceptive has yet been submitted to the FDA pursuant to the RH Law. It behooves the Court to await its determination which drugs or devices are declared by the FDA as safe, it being the agency tasked to ensure that food and medicines available to the public are safe for public consumption…


Emphasis in the original

The SC Awaits the Actions of the FDA…maaaring isama ng FDA ang ilang maaaring gamiting abortifacients, tulad ng oxytocin, sa National Drug Formulary dahil ang mga ito ay ginagamit upang mailabas ang patay na sanggol mula sa sinapupunan ng ina… Nagpapahiwatig namang ang huling pangungusap sa unang talata ng Section 9 ng legislative intent na kahit may mga abortifacients na isasama sa EDL, ipinagbabawal na gamitin ang mga ito bilang abortifacient, o paraan upang mapatay ang malusog na sanggol sa sinapupunan.

Reference: Opinyong Sumasang-ayon at Sumasalungat, Sereno, CJ., Imbong v. Ochoa,p. 16

Emphasis supplied

All Registered ContraceptivesMust be Re-evaluatedSince [there] are contraceptives that are already registered with the FDA under RA No. 3720 as amended by RA No. 9711, these contraceptives must undergo evaluation by the FDA under the provisions of the RH law to determine whether these are abortifacients – as defined by law and not by the IRR.


On Contraceptive Procurement, Distribution, and Dispensation

… A heavy responsibility and burden are assumed by the government in supplying contraceptive drugs and devices, for it may be held accountable for any injury, illness or loss of life resulting from or incidental to their use.


On Contraceptive Procurement, Distribution,and Dispensation

Under the RH law, the Food and Drug Administration (FDA) is tasked to determine whether a drug or device is abortifacient in nature. Once it determines that it is non-abortifacient, then the DOH may validly procure them.

However, if the FDA determines that the drug or device is abortifacient then as a rule, the DOH may not validly procure, much less distribute, them…

As a matter of exception, the government should be able to procure and distribute abortifacients or drugs with abortifacient properties but solely for the purpose of saving the life of the mother…



There is no Compelling State Interest

Unfortunately, a deep scrutiny of the respondents’ submissions proved to be in vain. The OSG was curiously silent in the establishment of a more compelling state interest that would rationalize the curbing of a conscientious objector’s right not to adhere to an action contrary to his religious convictions.


There is no Compelling State Interest (dissent)The present condition of the country’s reproductive health care, taken together with the Constitution’s mandate to promote and protect the right to health of the people, constitutes a compelling state interest as would justify an incidental burden on the religious freedom of conscientious objectors.

Reference: Concurring and Dissenting Opinion, Reyes, J., Imbong v. Ochoa, p. 18

Are conscientious objectors exempted from compliance?In case of conflict between the religious beliefs and moral convictions of individuals, on one hand, and the interest of the State, on the other, to provide access and information on reproductive health products, services, procedures and methods to enable the people to determine the timing, number and spacing of the birth of their children, the Court is of the strong view that the religious freedom of health providers, whether public or private, should be accorded primacy. Accordingly, a conscientious objector should be exempt from compliance with the mandates of the RH Law…


Emphasis supplied

Are conscientious objectors exempted from compliance?The punishment of a healthcare service provider, who fails and/or refuses to refer a patient to another, or who declines to perform reproductive health procedure on a patient because incompatible (sic) religious beliefs, is a clear inhibition of a constitutional guarantee which the Court cannot allow.


Are conscientious objectors exempted from being obligated to give RH info?… the right to be exempt from being obligated to render reproductive health service and modern family planning methods, necessarily includes exemption from being obligated to give reproductive health information and to render reproductive health procedures. The terms “service” and “methods” are broad enough to include the providing of information and the rendering of medical procedures.


Color emphasis suppliedNote: Withholding correct information is different from intentionally giving wrong information.

Exception to the exemption: life threatening cases

While generally healthcare service providers cannot be forced to render reproductive health care procedures if doing it would contravene their religious beliefs, an exception must be made in life-threatening cases that require the performance of emergency procedures. In these situations, the right to life of the mother should be given preference, considering that a referral by a medical practitioner would amount to a denial of service, resulting to unnecessarily placing the life of a mother in grave danger.



Working with Conscientious Objectors

Upon the implementation of the RH Law, through Sections 5.22, 5.23, and 5.24 of the IRR, the government will already be able to identify both conscientious objectors and non-conscientious objectors. It can, therefore, map out an effective strategy to inform all potential patients or target beneficiaries where they can avail of the complete reproductive health programs and services under the RH Law… This is well-within the State’s administrative and logistical capability…

Reference: Concurring and Dissenting Opinion, Del Castillo, J., Imbong v. Ochoa, pp. 47-48

Emphasis supplied

On the Family and Spousal Consent

Clearly, on its face, Section 23 (a)(2)(i) contradicts the unity of direction of the spouses, conflicts with the solidarity of the family, and collides with the fundamental equality before the law of men and women. In particular, it goes against the constitutional right of the spouses to found a family and to jointly decide on the number and spacing of their children. Rather than fostering unity between the spouses, it tends to foment discord and sow division between them.


On the Family and Spousal Consent (dissent)

Generally, it will be the woman who will ask to undergo reproductive health procedures. The interpretation of the majority therefore affects her control over her body. Rather than enhance the zones of autonomy of a person even in a married state, the interpretation of the majority creates the woman’s body as a zone of contestation that gives the upper hand to the husband…

The autonomy and importance of family should not be privileged over the privacy and autonomy of a person. Marriage is not bondage that subordinates the humanity of each spouse. No person should be deemed to concede her or his privacy rights and autonomy upon getting married.

Reference: Dissenting Opinion, Leonen, J., Imbong v. Ochoa, pp. 78, 80-81

Emphasis supplied

On the Family and Parental Consent

Equally deplorable is the debarment of parental consent in cases where the minor, who will be undergoing a procedure, is already a parent or has had a miscarriage…


On the Family and Parental Consent

It is neither fair nor just to ascribe the condition of a minor of either already having a child or having had a miscarriage as a fault or shortcoming of the parents as to outrightly or by operation of law deprive the latter of their natural and primary right. There is therefore no compelling interest, or even rational basis, to deprive parents of their constitutionally recognized natural and primary right to rear their children under the circumstances provided in the proviso of the second paragraph of Section 7 of the RH Law.

Reference: Concurring Opinion, Leonardo-De Castro, J., Imbong v. Ochoa, pp. 50-51

On the Family and Parental Consent (dissent)

Those of us who have not and can never go through the actual experience of miscarriage by a minor, those of us who cannot even imagine the pain and stresses of teenage pregnancy, should not proceed to make blanket rules on what minors could do in relation to their parents. None of us can say that in all cases, all parents can be understanding and extend sympathy for the minors that are legally under their care. None of us can say that there are instances when parents would think that the only way to prevent teenage pregnancy is a tongue lashing or corporeal punishment. We cannot understand reality only from the eyes of how we want it to be.

Reference: Dissenting Opinion, Leonen, J., Imbong v. Ochoa, p. 83

Emphasis supplied

Three Exceptions to Requiring Parental Consent

1. Insofar as access to information is concerned, the Court finds no constitutional objection to the acquisition of information by the minor … that would enable her to take proper care of her own body and that of her unborn child.

2. …in life threatening cases that require the performance of emergency procedures … the life of the minor who has already suffered a miscarriage and that of the spouse should not be put at grave risk simply for lack of consent.

Reference: Decision, Imbong v. Ochoa, p. 86-87

Three Exceptions to Requiring Parental Consent

3. Save for the two exceptions discussed above, and in the case of an abused child as provided in the first sentence of Section 23(a)(2)(ii), the parents should not be deprived of their constitutional right of parental authority.


The RH Mandate and Local Government Units(ponencia)

… whether it pertains to the establishment of health care facilities, the hiring of skilled health professionals, or the training of barangay health workers, it will be the national government that will provide for the funding of its implementation. Local autonomy is not absolute. The national government still has the say when it comes to national priority programs which the local government is called upon to implement like the RH Law.



The RH Mandate and Local Government Units (dissent)

Sections 8, 13 (last sentence) and 16 use the word “shall” relative to the duties required of the LGUs therein. Thus, the duties of the LGUs under these sections are mandatory.


Emphasis supplied

Sec. 8 – Maternal Death Review and Fetal and Infant Death Review Sec. 13 (last sentence) – operation of MHCSSec. 16 – Capacity Building of BHWs

The RH Mandate and Local Government Units(dissent)

… the use of the phrase “shall endeavor” should be understood as a recognition by Congress of the realities on the ground where the LGUs may not have enough funds to fulfill their mandate under [Sections 5 and 6]. However, if the national government provides for the needed funds, the LGUs cannot refuse to cooperate and do its part in the implementation of these sections. In other words, under these sections, the law mandates, not merely encourages, LGUs to fulfill their duties unless prevented from doing so for justifiable reasons such as the lack of available funds.


Emphasis supplied

Other Key ProvisionsNot UnconstitutionalOther significant provisions of both RA and IRR sustained as Law

“Untouched by the judicial scalpel” - Lagman

The mandate for government to afford the marginalized sectors free access to family planning services and supplies (Sec. 3[c])

The provision on the Philippine National Drug Formulary, which includes hormonal contraceptives, IUDs, injectables and other safe, legal, nonabortifacient and effective family planning devices and supplies, as determined by the Food and Drug Administration (Sec. 9)

The authority of the Department of Health to procure family planning supplies for distribution to local government units (LGUs) (Sec. 10)

Reference: Philippine Daily Inquirer. “Commentary: Fascination over exceptions”. Published in print 15 April 2014; Also available online

Section(s) in the RA: 3(c), 9, 10 But with qualifiers in the ponencia…

“Untouched by the judicial scalpel” - Lagman

The mandate for LGUs to assist in the implementation of the RH Law

Provision of age- and development-appropriate reproductive health education to adolescents in all schools

Public awareness and nationwide multimedia campaign for the protection and promotion of reproductive health and rights

Section(s) in the RA: 5, 6, 8, 16; 14; 20

Reference: Philippine Daily Inquirer. “Commentary: Fascination over exceptions”. Published in print 15 April 2014; Also available online

There are budgets

Amounts in GAA for “reproductive health and natural and artificial family planning and responsible parenthood” under the DOH and other concerned agencies shall be allocated and utilized for implementation of the RH Law

Additional sums necessary for the upgrading of facilities to meet BEmONC and CEmONC standards, training and deployment of skilled health providers, commodity requirements, and other RPRH services to be included in subsequent GAAs

GAD funds of LGUs and national agencies may be a source of funding for implementation of the RH Law

Section(s) in the RA: 25

There are facilities and staff

Hiring by LGUs of skilled health professionals for maternal health care

Midwives and nurses administering life-saving drugs in accordance with DOH guidelines, under emergency conditions and when there are no physicians available

Establishment or upgrading by LGUs of health facilities to provide EmONC, with additional and necessary funding/assistance by the national government

Mobile Health Care Service (MHCS)Section(s) in the RA: 5, 6, 13

And more…

All LGUs, government hospitals, and other public health units to conduct an annual Maternal Death Review and Fetal and Infant Death Review in accordance with DOH guidelines

DOH program implementation to prioritize full access of poor and marginalized through NHTS-PR and other government measures of identifying marginalization

“Maximum” PhilHealth benefits for serious and life-threatening RH conditions

Section(s) in the RA: 8, 11, 12

And more…

Marriage license to be issued only to applicants certified by the local FP Office as having received adequate instructions and information on RP, FP, breastfeeding, and infant nutrition

LGUs (with the assistance of the DOH via TA and possible additional honoraria) to be responsible for the training of BHWs and other barangay volunteers on the promotion of RH

Increased access to RH programs for PWDs

Section(s) in the RA: 15, 16, 18

And much more…

And everything else in the IRR found to be not unconstitutional by the Supreme Court

Yes. They went through the entire document.

Suggested Compliance

1a. The requirement to refer patients seeking MFP methods is restricted

Operational Solution: Since by the amended IRR Sec. 5.21, private health facilities may voluntarily opt to provide the full range of MFP, using IRR Sec. 5.06 they may be engaged by the DOH through agreements or contracts subject to DOH guidelines. These agreements or contracts may include incentive schemes (e.g., commodity grants, etc.).

1b. Parental consent is needed for minors to access MFP methods

Operational Solution: By the wording of the Law, its IRR, and as resolved by the SC Decision, parental consent is needed for minors only to access MFP methods (clinical procedures and/or commodities). Giving information and/or counseling is by itself not an MFP method; it is what the minor does outside of the clinical setting that matters. Note that IRR Sec. 4.07 as will be amended will still

require that age-appropriate counseling on responsible parenthood and reproductive health be given to any minor who consults at health care facilities.

2. Health care providers not disseminating information on RH cannot be punished

Operational Solution: By the wording of the Law (Sec. 20), and its IRR (Rule 10) as upheld by the SC Decision, there are other channels by which information on RH may be disseminated to patients/clients other than interpersonal communication and counseling (IPCC) between provider and client. Consider the full range of interventions used in social and behavioral change communication (SBCC) – both interpersonal and via mass media.

4. Health care providers not referring non-emergent patients for RH services or information cannot be punished

Operational Solution: The SC Decision is clear that providers cannot be punished for not referring only when the patient is not in an emergency or life-threatening case. By the RA (Sec. 4(q)) and its IRR (Sec. 3.01(ss)) as upheld

by the SC Decision, the elements of reproductive health care include the “management of abortion complications”, which in most cases are emergencies or life-threatening.

Hence, a conscientiously objecting provider must, by RA 8344 (also referred to by the SC), first stabilize RH-related emergencies and then refer. Otherwise, s/he may be liable for violating both RA 8344 and RA 10354.

5. Any public officer hindering full RH implementation or not supporting RH cannot be punished

Operational Solution: DOH policies to leverage LGU performance by way of agreements/contracts (e.g., HFEP, MNCHN grants, etc.) should be reviewed for consistency of its conditionalities for fund/commodity transfers with the RH standards set forth by the RPRH Law and its IRR (Rules 4, 5, 6, and 8, etc.).

Note: Only natural persons can register as conscientious objectors. Juridical persons (e.g., LGUs) cannot. Hence, if a public official in person is a conscientious objector, s/he must say so and then step aside

6. Any conscientious objector cannot be required to render pro-bono RH service to be accredited by PhilHealth

Operational Solution: While because of the SC Decision PhilHealth cannot require pro-bono RH services as a requirement for accreditation, there are other mechanisms worth exploring (e.g., bonus payments, etc.) in order to “encourage” (Sec. 17 of the RA) it. Alternatively, the requirement for pro-bono RH services

might already be moot, if well-designed PhilHealth benefit packages (e.g., case rates?) for MFP are to pay for providers’ services.

7. An abortifacient is any drug or device that can destroy a fetus or prevent the implantation of a fertilized ovum

Operational Solution: The RA (Sec. 9) and its IRR (Rule 7) as upheld by the SC Decision require that the national formulary shall include hormonal contraceptives, IUDs, injectables, and other safe, legal, non-abortifacient and effective FP products and supplies. The IRR has specific provisions that are for the FDA to

carry out (especially Sec. 7.04 on certification of being “non-abortifacient”). These are critical and must be carefully carried out, because it is expected that attention/debate will now focus on the FDA’s determination of “non-abortifacient” status given the strict definition of what an “abortifacient” is.

8. Health service providers who will require parental consent from minors not in emergencies or serious situations cannot be punished

Operational Solution: The SC Decision is clear that providers cannot be punished for requiring parental consent from minors not in an emergency or serious situation. By the RA (Sec. 4(q)) and its IRR (Sec. 3.01(ss)) as upheld by

the SC Decision, the elements of reproductive health care include the “management of abortion complications”, which in most cases are emergencies or serious situations.

Hence, a provider that requires parental consent from a minor seeking emergency RH care (e.g., management of abortion complications) may be liable for violating RA 10354.

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understanding the supreme court decision on the rh law

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