One of the secular arguments against the RH Bill is that it is unconstitutional based on the premise that certain oral contraceptives pills (OCPs), which the bill seeks to fund and distribute, have an abortifacient effect since they prevent the implantation of the fertilized ovum in the unlikely event of breakthrough ovulation and fertilization. This allegedly violates Art. II Sec. 12 of the 1987 Constitution: The State…shall equally protect the life of the mother and the life of the unborn from conception. Not surprisingly, the pro-life assert that conception means fertilization, the moment the sperm and egg cells meet, quoting Fr. Joaquin Bernas and Dr. Bernardo Villegas, both members of the Constitutional Commission of 1986:
“The intention is to protect life from its beginning, and the assumption is that human life begins at conception, that conception takes place at fertilization.” (IV RECORD of the Constitutional Commission 799,cited in Bernas, J., The 1987 Constitution of the Republic of the Philippines, Manila: 1996 ed., p.78)
“In the Philippine Constitution of 1987, conception is defined as fertilization, the moment the egg is fertilized by the sperm. This was the majority decision (32 to 8 ) of the members of the Constitutional Commission of 1986 convoked by the late President Corazon Aquino.” (http://www.mb.com.ph/node/293259/conception-fertilization)
While the above would seem to stop the RH Bill in its tracks, a little research shows this isn’t necessarily so.
Regarding the quote from Fr. Bernas, the complete paragraph actually reads:
“The intention is to protect life from its beginning, and the assumption is that human life begins at conception, that conception takes place at fertilization. There is however no attempt to pinpoint the exact moment when conception takes place. But while the provision does not assert with certainty when precisely human life begins, it reflects the view that, in dealing with the protection of life, it is necessary to take the safer approach.” (p.78 Bernas, J., The 1987 Constitution of the Republic of the Philippines, Manila: 1996 ed.)
The last two sentences may seem contradictory: there is no attempt to pinpoint the exact moment of conception and yet it is necessary to take the safer approach. My analysis is that the first sentence clearly expresses what the Constitutional Commission did not do, that is, define the moment of conception, while the second looks like it is meant as a guide in legislation since Article II, where the protection of the unborn clause was placed, is in fact the Declaration of State Policies – not the Bill of Rights.
Moreover, Fr. Bernas wanted to use the term “fertilized ovum” such that “protection of life should extend to the fertilized ovum,” but that was not adopted by the Commission, ending up with “the State shall protect the unborn from conception” instead:
FR. JOAQUIN BERNAS: Perhaps you should say, “protection of life should extend to the fertilized ovum. (Record of the Constitutional Commission, Vol.1, p.690)
LINO BROCKA: I do not think that it should be implemented, for the simple reason that medically, there is no clear consensus that the fertilized ovum is considered human life. (Record of the Constitutional Commission, Vol.1, p.692)
REV.RIGOS: But our religious authorities sharply differ in their opinions as to when human life can definitely be regarded to have commenced. If we constitutionalize the beginning of human life at a stage we call fertilized ovum, then we are putting a note of finality to the whole debate. (Record of the Constitutional Commission, Vol.1, p.693)
MS.AQUINO: Even this Commission cannot settle the question of whether a fertilized egg has the right to life or not. Those experts in the field of medicine and theology cannot settle this question. It is bad enough for us to preempt this controversial issue by constitutionalizing the ovum; it would be tragic for us to provide for ambiguities, which may even disturb settled jurisprudence. (Record of the Constitutional Commission, Vol.1, p.695)
As for Dr. Villegas’ claim that there was a 32-8 decision where the members of the Constitutional Commission defined conception as fertilization, there seems to be nothing online that would validate such claim, much less explain the significance or effect of the decision, especially since the Commission intended to leave to Congress the power and mandate to determine the legal definition of conception:
MR. OPLE: We say, “Protect the life of the unborn from the moment of conception.” Is there in jurisprudence anything now that will help us visualize the precise moment, the approximate moment when conception begins and, therefore, the life of this new human personality entitled to all the protection of the laws in the Constitution begins? Is there any standard legislature or jurisprudence that will support an interpretation of the moment of conception?
MR. VILLEGAS: Jurisprudence? None… We believe that the abortion debate from a scientific standpoint must proceed on the assumption that…human life begins at fertilization of the ovum.
MR. OPLE: But we would leave to Congress the power, the mandate to determine.
MR. VILLEGAS: Exactly, on the basis of facts and figures they would obtain from experts.
MR. OPLE: Yes, to legislate a kind of standard so that everyone will know what moment of conception will mean in terms of legal rights and obligations… (Records of the Constitutional Commission No. 86 09-18-1986)
As of today, Congress has yet to determine the legal definition of conception. Until then, all these claims about the abortifacient effect of certain pills as well as the debate on when life begins are irrelevant as far as constitutionality is concerned.
More importantly, the pro-life are actually objecting to the use of oral contraceptive pills and not the RH Bill per se and should therefore focus their efforts in lobbying Congress to define conception as fertilization and have these OCPs banned by the FDA instead of blocking the passage of the RH Bill. Because even without the RH Bill, these pills they deem abortifacient are already available in the market. Conversely, if Congress defines conception as fertilization, these pills will be banned even if the RH Bill gets passed.
To the pro-life, let me say it again: you’re objecting to the Pill, not the Bill, and it is fallacious to equate the two. You are barking up the wrong tree, unless of course your true opposition lies in the use of contraception in general – even if certain contraceptives like condoms do not prevent implantation – because contraception is forbidden by the Catholic Church. But you know too well that religious arguments have no place in public debates since we’re living in a pluralistic society, so you might have decided to come up with a secular rationalization. And if that is the case, I object to your lack of candor.
(Special thanks to WillyJ for the very interesting discussion on another article which helped me come up with the idea for this post.)
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Note: Someone accused me of attacking a strawman when I said that “one of the secular arguments against the RH Bill is that it is unconstitutional on the premise that certain oral contraceptives pills (OCPs), which the bill seeks to fund and distribute, have an abortifacient effect since they prevent the implantation of the fertilized ovum in the unlikely event of breakthrough ovulation and fertilization,” saying that that was never an argument made by secularists. The problem is that he defined ‘secular’ too narrowly and equated it with atheism or even objectivism so that only atheists and objectivists can make secualr arguments. That’s where he got it wrong. But if he can find the fallacy in the following argument, I’ll yield to him:
Premise 1: ‘Secular’ is defined as “not concerned with or related to religion.”
Premise 2: An argument about the RH Bill’s possible violation to the constitution is not concerned with or related to religion since it does not cite any religious doctrine. It cites only the constitution.
Conclusion: An argument about the RH Bill’s possible violation to the constitution is a secular argument.