THE REPRODUCTIVE HEALTH ACT
Part 2
Constitutional and International Law

No Prohibition in the Constitution

There are a number of constitutional provisions that underlie the RH bill. But the most salient is what I would call the "Sanctity of Life" Clause found under Article 2, as a declaration of state policy:

Sec. 12. 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.

This provision does not mention the term "reproductive health" or any of its affiliate vocabularies. This is in the nature of a constitution. As explained in the 1930 case of Lopez v. de los Reyes,[1] speaking of the Constitution:

It is an instrument of a permanent nature, intended not merely to meet existing conditions, but to govern the future. It does not deal in details but enunciates the general principles and general directions which are intended to apply to all new facts which may come into being, and which may be brought within those general principles or directions.

The Constitution should not be read like a newspaper story, on the basis of which each reader can feel free to express his own interpretation. Instead, to discover the intent and meaning of the Constitution, we have to turn to a process called "constitutional construction."

In the 1938 case of Gold Creek Mining Corp. v. Rodriguez,[2] the Supreme Court ruled that fundamental principle of constitutional construction is to give effect to the intent not only of the framers, but also of the people who adopted it. It is not sufficient to quote the opinion expressed in the records by one delegate to the constitutional convention; that would be only one person's opinion. Neither would it be sufficient to claim that a certain interpretation was the intent of the people who approved the Constitution in a plebiscite.

Hence, we are left with the conclusion that the Constitution is what the Supreme Court says it is. In other words, no legislator can authoritatively construe the meaning of the Sanctity of Life Clause, and it would be pointless to debate its meaning here in the legislature. We can save a lot of time in Congress by waiting for the proper branch of government to tell us what this Clause means - the Supreme Court.

To maintain peace and order, the sovereign people agreed to lend some of their sovereignty to the government, under terms which are defined in the Constitution. If there is no applicable provision in the Constitution, the implication is that the power has been reserved to the people in their sovereign capacity. Thus if there is no prohibition in the Constitution, then it is deduced that the people's representatives in the Congress are free to legislate on the matter. In other words, the Constitution serves merely as a limit to the police power of the State.

Accordingly, the Supreme Court ruled in the 1924 case of People v. Pomar:[3] "The state, under the police power, is possessed with plenary power to deal with all matters relating to the general health, morals, and safety of the people, and so long as it does not contravene any positive inhibition of the organic law . . . ." (Emphasis added.)

The Constitution, directly or indirectly, does not prohibit the RH bill. Therefore, in constitutional terms, this Senate is free to enact this bill. It is now well accepted in our jurisdiction that under the "rational basis" test, so long as an act of Congress bears some reasonable relationship to the grant of power to the national government and it is not otherwise prohibited by the Constitution, a reviewing court must find the law to be necessary and proper.

If the Senate passes the RH bill, our action would amount to a legislative construction of the Constitution. The rule is that a practical construction by Congress of a provision of the Constitution is entitled to great weight and should not be lightly disregarded. Hence, if we pass the RH bill, it will enjoy a presumption of constitutionality if it is questioned in the Supreme Court.

It has been said that even if we abolish the entire Bill of Rights, all the rights enumerated would still exist, provided that we keep the Equal Protection Clause and the Due Process Clause. These two great clauses are found in our Bill of Rights, which provides: "Sec. 1. 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 right of the mother to protect herself and her baby from death-dealing poverty is a liberty protected under the Due Process Clause. Similarly, the right of the mother in the lowest social class is equal to the right of the mother in the highest social class, when both rights pertain to freedom of information. Thus, to make information on reproductive health accessible to the rich but not to the poor would be a violation of the Equal Protection Clause.

RH Bill Upholds Right to Information

Since there is no prohibition of an RH bill in our Constitution, it is constitutional for this Senate to pass the bill, until the Supreme Court rules otherwise. I would go even further. I respectfully contend that the RH bill is positively mandated by the Bill of Rights, particularly Art. 3, which provides as follows:

Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

In the 1989 case of Valmonte v. Belmonte,[4] the Supreme Court ruled that "the right to information goes hand-in-hand with the constitutional policies of full public disclosure and honesty in the public service." Critics might argue that the right to information under Sec. 7 was meant to cover only official records; but there is nothing in Sec. 7 or in the Records of the Constitutional Commission to support this view.

We are therefore compelled to follow the rule of constitutional construction that where the law does not distinguish, courts should not distinguish. Ubi lex non distinguit, nec nos distinguere debemus. In the 1903 case of Velasco v. Lopez,[5] the Court also ruled: "Courts are not authorized to distinguish where the law makes no distinction. They should instead administer the law not as they think they ought to be, but as they find it without disregard to consequences." And in the 1946 case of Lo Cham v. Ocampo,[6] the Court ruled that the general term or phrase should not be reduced into parts and one part distinguished from the other, so as to justify its exclusion from the operation of the law.

RH Bill Upholds Right to Privacy

Although the Bill of Rights does not specifically provide for a right to privacy, nevertheless it is a right protected by the Constitution, under the Due Process Clause and the Equal Protection Clause. The development of the contemporary concept of a constitutionally protected "right of privacy" in sexual matters can be traced to the 1942 case of Skinner v. Oklahoma,[7] decided by the US Supreme Court.

In Skinner, the Court struck down an Oklahoma law which authorized the sterilization of persons previously convicted and sentenced to imprisonment two or more times of crimes of moral turpitude. This opinion did not mention a "right of privacy" relating to sexual matters. But it established interests in marriage or procreation as areas of special constitutional significance.

In the landmark 1965 case of Griswold v. Connecticut,[8] the US Supreme Court held that Connecticut laws were invalid, because they restricted the right of married persons to use contraceptive devices. The majority of the justices created a new "right to privacy." Justice Douglas found that the "penumbras" and "emanations" of several guarantees of the Bill of Rights established this right to privacy.

In the 1972 case of Eisenstadt v. Baird,[9] the US Supreme Court invalidated a law which prohibited distribution of contraceptives to unmarried persons. Thus, under the rulings in Griswold and Eisenstadt, the state has no power to forbid the use of contraceptives by adults. However, the state has the power to restrict the manufacture and sale of contraceptive devices to ensure that the products meet health, safety, and anti-abortion standards.

In the 1977 case of Carey v. Population Services International,[10] the U.S. Supreme Court invalidated a law which allowed only pharmacists to sell non-medical contraceptive devices to persons over 16 years old, and prohibited the sale of such items to those under 16 years old. The majority opinion ruled that the burden on an adult's freedom of choice could only be justified by a compelling state interest. The Court said that distribution only through pharmacists was not justified.

In the Philippines, the right to privacy was first recognized in the 1968 case of Morfe v. Mutuc.[11] It was similarly upheld in the 1998 case of Ople v. Torres.[12] Most recently, the right to privacy was again upheld in the 2006 case of Sabio v. Gordon.[13] Since the Philippine Supreme Court has already recognized the right to privacy in several cases, then this right also applies to sex, marriage, and procreation, as shown by the American cases. Because of our judicial history, today, American cases are no longer decisive, but American cases remain authoritative in Philippine jurisdiction.

Constitutional Right of Parents Over Child Education

The Constitution[14] provides: "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."

There is no equivalent provision in the United States Constitution. But in a 1990 decision,[15] the US Supreme Court upheld what is called the constitutional "right of parents . . . to direct the education of their children."

This parental right was discussed in the 1972 case of Wisconsin v. Yoder.[16] The U.S. Supreme Court held that Wisconsin could not require members of the Amish Church to send their children to public school after the eighth grade. The majority opinion cited due process rulings concerning parental rights. They focused on the Free Exercise Clause, and used the two-part balancing test, meaning striking a balance between public interest and individual rights. The two parts are:

1. A significant burden on the free exercise of religion would have to be shown.

2. This burden would be balanced against the importance of the state's interest, and the degree to which it would be impaired by a religious exemption.

The U.S. Court found that the parents' refusal to send their children to school was based on religious belief. However, the Court found that there was a significant burden on the free exercise of religion. The Yoder decision was based on both the Free Exercise Clause, and the parental interest in directing the education of their children that was protected by the Due Process Clause.

Senate Bill No. 2865 provides in Section 13 for age- and development- appropriate reproductive health education. If there is any objection to Sec. 13, it can easily be met by a potential amendment which in effect shall adopt the option for parents provided in the Constitution for the teaching of religion in public elementary and high schools.[17] Such an amendment would make the Yoder case inapplicable to the Philippines.

RH Bill is PH Obligation Under International Law

The Constitution under Article 2 on the Declaration of Principles provides in Sec. 2 that the Philippines "adopts the generally accepted principles of international law as part of the law of the land." Therefore, when the Philippines becomes a party to an international treaty or convention, its principles become part of our international obligation. If our country fails to discharge these obligations, we can be held liable under international law, and we run the risk of being branded as a rogue state, or as a pariah in the international community. That is what would happen if we fail to pass the RH bill.

Conservative Catholics are still opposing the RH bill. But as early as 1968, the Philippines already participated in the International Conference on Human Rights, and became a party to the Final Act, known as the Proclamation of Teheran, which explicitly provides:

The protection of the family and of the child remains the concern of the international community. Parents have a basic human right to determine freely and responsibly the number and spacing of their children.

As a Philippine commitment, the Proclamation of Teheran was followed by the 1976 International Covenant on Economics, Cultural, and Social Rights. It provides in Article 12:

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

Subsequently, the Philippines became a party to the 1979 UN Convention on the Elimination of All Forms of Discrimination Against Women, also known as CEDAW. This innovative and ambitious treaty already had 187 states parties as of 7 July 2011. It provides:

Women have the right to decide freely and responsibly on the number and spacing of . . . children and to have access to the information, education, and means to enable these rights.

States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, as a basis of equality of men and women, access to health care services, including those related to family planning.

The Philippines further became a state party to the Programme of Action of the 1994 International Conference on Population and Development, which includes the following commitments:

• Ensuring women's ability to control their own fertility, as one of the cornerstones of population and development policies.

• Making family planning universally available by 2015 or sooner, and calling on Governments to make these resources available.

• Reducing infant, child, and maternal mortality; and ensuring universal access by 2015 to reproductive health care, including family planning, assisted childbirth, and prevention of sexually transmitted infections, including HIV/AIDS.

To summarize, the Philippines is already committed to our RH law, and to debate this commitment at this time is too late and pointless.

Principle of Pacta Sunt Servanda

The Philippines is a party to the Vienna Convention on the Law of Treaties. It defines a treaty as "an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation."[18] The instrument can be designated as a treaty, convention, protocol, covenant, charter, statute, act, declaration, etc.

The Philippines is a party to various treaties which impose the obligation to protect reproductive health. If we fail to pass the RH bill, it is highly likely that the Philippines would be designated as "in breach of international obligation." The law of treaties plays a role in international law similar to that played by the law of contracts in municipal law. Since the Philippines is a party to various treaties providing for reproductive health of mother and child, for Congress to fail once more to pass the RH bill is tantamount to breaking a contract with other states.

The Vienna Convention provides: "Every treaty in force is binding upon the parties and must be performed by them in good faith."[19] This provision embodies two principles: the principle of pacta sunt servanda; and the principle of good faith. The Latin term pacta sunt servanda means that agreements must be kept. The term "good faith" in law means faithfulness to one's duty or obligation.

The Philippines is a party to a number of treaties imposing the duty to protect the health of mother and child. These treaties in principle are binding only on the parties. But their effect goes further than that. These treaties are so-called "law-making treaties," because they have a strong law-creating effect. Unlike contractual treaties, law-making treaties are not dissolved, after their legal obligations have been observed. Law-making treaties create general norms for the future conduct of parties.

Law-making treaties include the conclusions of international conferences and resolutions of the UN General Assembly. The "Final Act" or other statement of conclusions of a conference of states is a form of multilateral treaty, even if it was not adopted unanimously. The resolutions of the UN General Assembly in general are not binding on member states. But when such resolutions are concerned with norms of general international law, their acceptance by a majority vote constitutes evidence of the opinions of governments.

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[1] 55 Phil. 186 (1930).
[2] 66 Phil. 259 (1938).
[3] 46 Phil. 440 (1924).
[4] 170 SCRA 256 (1989)
[5] 1 Phil. 720 (1903).
[6] 77 Phil. 636 (1946).
[7] 316 US 535 (1942).
[8] 381 US 479 (1965).
[9] 405 US 438 (1972).
[10] 431 US 678 (1977).
[11] 22 SCRA 424 (1968).
[12] 293 SCRA 141 (1998).
[13] 504 SCRA 704 (2006).
[14] Constitution, Article 2, Section 12.
[15] Employment Division, Department of Human Resources of Oregon v. Smith, 494 US 872 (1990).
[16] 406 US 205 (1972).
[17] Constitution, Article 14, Section 3, para 3: "At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government."
[18] Vienna Convention on the Law of Treaties, Article 2, Sec. 1, para. (a).
[19] Vienna Convention, Article 26.

THE REPRODUCTIVE HEALTH ACT

Part 3
Socioeconomics

By
Senator Miriam Defensor Santiago

It is easy to discuss reproductive health in abstract terms such as theology, constitutional law, or international law. But it is not so facile to exchange arguments over the hard facts concerning mother and child among the very poor.

Statistics on Maternal Health[1]

• Due to childbirth- and pregnancy-related complications:

11 MOTHERS DIE EVERYDAY!

3,000 to 5,000 mothers die every year

162 mothers out of 100,000 live births die

11% of all deaths among women of reproductive age in the Philippines are maternal deaths

• How many women will be affected by the RH bill?

23 million (From 15 to 49 years old)

• How many women are at risk of pregnancy?

15 million

Guttmacher Institute made a 2008 study of pregnant Filipinas, with the following results:

How many pregnancies that year? 3.371 million

How many were unintended pregnancies? 1.82 million

What happened to the unintended pregnancies?

570,000 induced abortions

1 million mistimed or unwanted births

90,000 hospitalizations for complication of abortions

3,700 maternal deaths in one year, of which

90% deaths occurred among women using no or natural

family planning methods

• Where do women deliver their babies?

56% at home, specially in rural areas

44% in health facility

• At childbirth, is skilled birth attendance available?

As of 2008:

36% No; only the hilot

62% Yes; with a birth professional

• Does skilled attendance at delivery and emergency abortive case reduce maternal deaths?

Yes, with 75% reduction

In addition to reducing maternal and child deaths during delivery, family planning would prevent not only unwanted and high-risk pregnancies, but also abortion. Under the Penal Code, abortion is a crime, and it will remain a crime under the RH bill. In fact, one important reason to pass the RH bill is that it will reduce abortions. The Act will provide full information to any mother on the entire menu of family planning options, making it unnecessary for the mother to resort to abortion. Hence, pregnancy will result in a wanted child, not an unwanted child that the mother might be forced to abort.

• In the Philippines, how many unplanned pregnancies end in abortion?

1 out of 3

• How many induced abortions are estimated to have taken place in the Philippines?[2]

400,000 in 1994

473,400 in 2004

• Who are the women who resort to induced abortions in the Philippines?

9 out of 10 are married women

87% are Catholics

• Who are the women who resort to induced abortions in the Philippines?

9 out of 10 are married women

87% are Catholics

• Did the mother receive antenatal care?

As of 2008:

4% - No

5% - From hilot

91% - Yes

• Who are vulnerable to risky pregnancies?

Young adolescent women

Women over 35 years old

Women who already gave birth to three children

Women whose pregnancies have short intervals

• Of pregnant Filipinas, how many are aware of danger signs of complications, and where to go in case of complications?

50%

These statistics lead to the question of how the government should prevent maternal death. The obvious answer is that government should provide access to skilled care during pregnancy, during childbirth, and during at least the first months after delivery. Poor women are more at risk of dying from pregnancy and pregnancy-related complications.

• Does voluntary family planning reduce deaths? Yes:

20 to 35% of maternal deaths

20% of child deaths

Lower fertility rate reduces poverty incidence:[3]

NCR:

Fertility - 2.3%

Poverty - 7.6%

Bicol:

Fertility - 5.1%

Poverty - 49%

Actual children are more than wanted children:[4]

Wanted fertility rate - 2.4 children

Actual fertility rate - 3.3 children

Each woman has excess of 1 child

Unmet need for family planning - 22%

Poor women have three times more children than rich women:

Highest class:

Desired fertility - 1.6%

Actual fertility - 1.9%

Lowest class:

Desired fertility - 3.3%

Actual fertility - 5.2%

Childbearing among teenagers:

Uneducated - 25%

College - 3%

Similarly, a Canadian NGO[5] released a fact sheet based on several studies. It showed that school-based sexual health education results in more parent-child communication.

• What is the incidence of failure to protect against pregnancy for early PMS?

40% unprotected for first PMS (Pre-Marital Sex)

70% of most recent PMS

• Is there a double standard between the two genders with respect to PMS?

40% think it is acceptable for young men

22% think it is acceptable for young women

The Abortion Scare

Contraceptives are not abortifacient. This issue was laid to rest as early as 2006, during deliberations on House Bill No. 4643, which sought to declare contraceptives as abortive. A position paper on reproduction issued by international organizations,[6] and released by the World Health Organization, categorically stated: "None of these methods have been shown to cause the abortion of an implanted fetus. Therefore they cannot be labeled as abortifacients." The position paper covered virtually all the methods of contraception.[7]

As part of the abortion debate, the question has been raised: When does life begin? Doctors and scientists do not know, and it would be presumptuous for legislators to settle this question by the expedient of parliamentary debate. We cannot settle a scientific issue by spouting anecdotal evidence to support a layman's view. Contemporary ignorance of the answer has been admitted by no less than a former professor of biochemistry, who became former dean of the UP college of medicine. In a book published this year, 2011, the authors apparently reached the conclusion that the process of becoming human is gradual, and that there is no specific point at which a non-human entity suddenly becomes human.[8]

Youth Education on RH

The RH bill provides for RH services and information for the youth. This provision is supported by the results of a 2002 UP Population Institute survey,[9] which showed the following:

• Many young people engage in risky sexual behavior.

• Their knowledge of reproductive health problems are inadequate.

• They rarely seek medical help for reproductive health problems, and

• They have liberal views on sex and related matters.

The survey showed that many young people engage in pre-marital sex (PMS), as follows:

• Among young people 15 to 24 years old, how many have had PMS experience?

23%

• What is the prevalence of PMS among the sexes?

31.1% among boys

15.4% among girls

• What is the incidence of PMS among male youth?

20% admitted that they paid for sex

12% admitted that they accepted payment for sex

Even young men who risk getting infected with HIV also suffer from inadequate knowledge. As a common practice, Filipino youth do not discuss sex at home with their parents. Therefore, it is not realistic to argue that sex discussion should be limited to the parents and the home.

Sexuality education does not encourage promiscuity among the youth. On the contrary, if young people know more about sexual health, they are even more likely to postpone sexual initiation. An American NGO[10] looked at several studies made in countries where sexuality education is being taught, and reached the conclusion that sexuality education reinforces the sense of responsibility of young people in terms of their sexual behavior. When they are given proper education on reproductive health, young people no longer feel a need to explore other sources of information on sex.

Mistimed or unwanted pregnancies result in health risks which are higher for adolescent mothers. They are more likely to have complications during labor.[11] Unwanted pregnancies compel society to pay a social cost. Parents who are able to plan their families are usually able to raise and educate them. But poor families who cannot plan their families have to rely on government for education, health, and other goods and services.

Philippine Demographics

The branch of knowledge that deals with human population, e.g., the statistical analysis of births and deaths, is known as demography. Here are the demographics:[12]

• Philippine Population:

2010 - 91.8 M

2020 - 105.5 M

2040 - 126 M

• Population Growth Rate (PGR) - 2. 04%

No. 3 in Southeast Asia

Added Filipinos each year - 2 M

• What is the biggest age group?

15 to 49 years old - 51.11%

Half of population below 21 years old

Philippine population is young

Implication of Demographics

The consequences of all these statistics were analyzed in the seminal 2008 paper entitled "Population, Poverty, Politics, and the RH Bill." It was written by some 27 UP economics professors, virtually every single one eminent in this field. The paper is so authoritative that I have to quote the first paragraph:

The population issue has long been dead and buried in developed and most developing countries, including historically Catholic countries. That it continues to be debated heatedly in our country testifies to the lack of progress in policy and action. The Catholic Church hierarchy has maintained its traditional stance against modern family planning (FP) methods, particularly modern (also referred to as "artificial") contraceptives. On the other hand, the State acknowledges the difficulties posed for development by rapid population growth, especially among the poorest Filipinos.

According to the authors - whom I shall call the Economics 27 - a clear and consistent national population policy is long overdue. The RH bill would be a good instrument of such a policy. Hence, the RH bill would become an integral part of the strategy for development and poverty reduction. The country needs a population policy, together with a government-funded family planning program. A rapidly growing population has a negative impact on economic development. Rapid population growth is largely caused by the least urbanized, least educated, and poorest segments of our population.

The bigger the family, the poorer. The bigger the family, the less educated the children. The poor know this, and prefer smaller families, but they are unable to keep the family small. The 2006 Family Planning Survey showed that among the poorest women, 44% of pregnancies are unwanted. According to the Economics 27: "Contraceptive use remains extremely low among poor couples, because they lack information about, and access, to them."

The lack of access to contraception results in high maternal mortality. At our present rate, the Philippines will be unable to meet the Millenium Development Goal target of 52 maternal deaths per 100,000 live births by 2015. The more children and the more they are closely spaced, the higher the risk of illness and premature deaths for mother and child alike. Everyday, 11 to 12 women die from pregnancy and causes associated with childbirth.[13] The evil of maternal death is compounded by the evil of induced and illegal abortions amounting to half a million annually.[14]

2011 NEDA Study

Perhaps the most telling lesson taught by the Economics 27 is their conclusion that: "Ensuring access to the free range of modern ("artificial") family planning methods with appropriate information raises the success rate of achieving the desired family size. Limiting family planning options to 'national family planning (NFP) methods only' fails to address the social costs of mistimed and unwanted pregnancies."

One of the Economics 27 is the incumbent Secretary of Socioeconomic Planning, Cayetano Paderanga, Jr. of the NEDA. On our request, he has summarized the key findings of studies related to the impact of population on reproductive health and family planning, as follows.

Continued high population growth rate is principally done to the continued high total fertility rate over the last 20 years. The large number of children, specially among the poorest families, is more a result of the inability of couples to reach their desired (i.e., smaller) family sizes due to poor access to contraceptives.

Getting out of poverty becomes difficult with larger family size. Poverty is strongly affected by population growth. Lower birth rates and slower population growth rate over the last three decades contributed to faster economic progress in developing countries. Countries with higher investments in health - including reproductive health, family planning, and women's education - register slower population growth and faster economic growth.

Family size makes it difficult for families to emerge from poverty. This is the so-called "burden of dependency." As family size increases, expenditures for education and health for family members decrease systematically. In the past, our country failed to achieve lower fertility and rapid economic growth. This failure is reflected in poor outcomes in human development concerns, as follows:[15]

• High maternal mortality

• High infant and child mortality

• Poor educational performance

• High unemployment and underemployment

At the household level, large family size correlates with the following:[16]

• Higher poverty incidence

• Lower savings and asset accumulation

• Reduced per capita household expenditures for education and health.

A 2010 study by the Guttmacher Institute and UN Population Fund (UNFPA) shows that maternal deaths could be slashed by 70 percent, if the world doubled investment in family planning and pregnancy-related cases. According to this latest report, investing in family planning and maternal health would have profound additional benefits, as follows:

• Increases in condom use for pregnancy prevention would simultaneously curb transmission of HIV and other STIs.

• Preventing unwanted pregnancies would increase women's educational and employment opportunities, enhancing their social and economic status.

• Family savings and investment would rise, spurring economic growth and reducing poverty.

"Demographic Winter" Scare

In its paper on Philippine population and development, the UP Population Institute defines the term "demographic winter" as the condition when a population no longer increases after a prolonged period of below - replacement fertility. A total fertility rate or TFR of 2 is the working definition of replacement fertility. A TFR below 2 sustained for a number of generations (with one generation lasting for 25 years) would produce the so-called aging society, where the majority of the population are 60 or more years old.

Critics of the RH bill agree that a large population in the working ages will provide a boon to development, the so-called demographic bonus, because of the large labor supply. This is fallacious, because the issue is not how big the labor supply is, but how skilled the labor supply is.

To paraphrase the UP Population Institute: The Philippines may have a large pool of working-age population. But the quality of that labor pool is not optimal for economic development. They are poorly educated and not well prepared for the jobs required in the market. Further, there may be a large pool of labor. But they may be too many to be absorbed by the market, even if they have the proper education.

Financial Cost of RH Act

Experts estimate that it will cost government some P3 billion a year to implement the RH law. This is considered modest. In the context of promoting development in less developed countries, the higher cost-benefit ratio is obtained from family planning programs than from infrastructures investment. Similar hardware requirements for development are more lumpy, time-consuming, and demand longer gestation periods.

The RH cost of P3 billion a year is only one-seventh, or 14.3 percent, of the P21 billion cost of the Conditional Cash Transfer program. The two programs should be compared. On the one hand, the RH program is self-targeting, meaning that typically, it is the poor who self-select to obtain RH services which they cannot afford on their own. The RH program is simpler and less costly to administer.

On the other hand and by contrast, the CCT program distributes cash which is fungible, meaning that it can be precisely replaced by another. By comparison, a reproductive health service is non-fungible. Because the CCT program distributes cash, it prevents the real danger that the cash could be diverted to unintended recipients, such as principals and schoolteachers. The CCT program is more costly in terms of direct budgetary allocation, as well as the administrative requirements.

The 2011 SWS Survey

The Social Weather Stations conducted a survey for the second quarter of 2011 in June 2011. The respondents were 1,200 adults in Metro Manila, the balance of Luzon, Visayas, and Mindanao, with a sampling error margin of plus or minus 3 percent.

This most recent survey shows unequivocal public support for the RH Act: 73 percent want information on legal methods available from the government, while 82 percent say family planning method is a personal choice/

Here are the test statements and the scores:

"If a couple wants to plan its family, it should be able to get information from government on all legal methods."

Agree - 73%

Disagree - 13%

Undecided - 13%

"The choice of a family planning method is a personal choice of couples, and no one should interfere with it."

Agree - 82%

Disagree - 8%

Undecided - 9%

"The government should fund all means of family planning, may it be natural or artificial means."

Agree - 68%

Disagree - 16%

Undecided - 15%

"The use of pills can also be considered as abortion."

Agree - 29%

Disagree - 52%

Undecided - 18%

"The use of condoms can also be considered as abortion."

Agree - 30%

Disagree - 51%

Undecided - 18%

"The use of IUD can also be considered as abortion."

Agree - 29%

Disagree - 51%

Undecided - 19%

"If family planning would be included in their curriculum, the youth would be sexually promiscuous."

Agree - 31%

Disagree - 46%

Undecided - 22%

"For me, the plan of those who oppose the RH Bill not to pay their taxes is a reasonable protest."

Agree - 32%

Disagree - 39%

Undecided - 26%

"Yesterday, 16 August 2011, at the Ledac meeting, President Aquino announced that he has listed the RH Bill as one of his priority bills. Thus, by this announcement, the President of the Philippines has spoken. And more importantly, the greater majority of the Filipinos have spoken. In the light of these developments, the democratic option is to pass the RH Bill."

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[1] See 2008 National Demographic and Health Survey by National Statistics Office.
[2] Guttmacher Institute and UP Population Institute, "Unintended Pregnancy and Induced Abortion in the Philippines," 2006.
[3] Based on 2008 National Demographic and Health Survey by NSO.
[4] 2008 Family Planning Survey, NSO
[5] The Society of Obstetricians and Gynecologists of Canada published "Myths, Misconceptions, and Misinformation About Sexual Health Education and Promotion" in Canada, 2005.
[6] UNDP/UNFPA/WHO/World Bank Special Programme of Research, Development, and Research Training in Human Reproduction issued in Nov. 2006 by the World Health Organization in Geneva, Switzerland.
[7] Combined hormonal methods, including pills and Evra patch; progestin-only methods including Depo Provera, implants, and mini pills; emergency contraception pills; and intrauterine devices.
[8] Scott Gilbert, Ann Tyler, and Emily Zachin, Bioethics and the New Embryology: Springboards for Debates, 2011.
[9] Young Adolescent Fertility Survey 2002 by UP Population Institute.
[10] The National Campaign to Prevent Teen Pregnancy published "No Easy Answers" in Washington D.C., 1997.
[11] 2006 Family Planning Survey.
[12] Based on the 2007 Philippine Census by the National Statistics Office (NSO).
[13] 2003 NDHS.
[14] Juarez et al 2005.
[15] World Bank 2010.
[16] Orbeta 2002; Orbeta 2003; Racelis 2008.

THE REPRODUCTIVE HEALTH ACT

Conclusion

Marketplace of Ideas

Allow me to conclude with one of the most famous quotes in the history of the law, written by the superlative Justice Oliver Wendell Holmes, Jr.:[1]

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment.

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[1] Holmes, Jr., Abrams v. United States 250 US 616 (1919).