The Philippine Reproductive Health Bill (HB 5043) and abortion

By Fr. ROY CIMAGALA
November 14, 2010

Below is a commentary of a former faculty member of Xavier University in Cagayan de Oro City who now lives in the United Kingdom. In his analysis, he sees a link between the bill and the possibility of abortion in our country.

The Philippine Reproductive Health Bill (HB 5043) and abortion
A comment by Atty. Ariel Anthony A. Tizon, LLB, LLM (UCL), PGDL

There is no proposed law bill in recent times that has actively involved the Roman Catholic Church more than HB 5043. If enacted into law in its current form and content, the Bill will strike at the very heart of Filipino family, society, morality, and consciousness.

One could not objectively assess the possible impact of HB 5043 in Philippine society without taking into consideration events in international law that informed the Bill’s content and purposes. For decades now, there has been a steady, conscious, and progressive trend for international treaties, conventions, conferences to promote and deal more with the rights of individuals [human rights based ethos] rather than the traditional subjects about states and relations between states and entities with international personalities. The consequences of a human right based international regime are clearly defined by its pervasive effects in practically all aspects in the domestic affairs of states that the legality of the latter’s internal actions may now be questioned and determined by the norms of international law ( i.e. UK and the European Court of Human Rights). Hence, one could not honestly deliver a discourse about the bill without recourse to this development.

As a Filipino citizen, it is my duty not to “stand by the wayside”, as it were, and so manifest an observation about the Bill HB 5043 in the context of the proposition that HB 5043 would legalise eventually legalize abortion on the premise that the Bill would be enacted into law in its current form and content.

The central precept of HB 5043 is the recognition and enforcement of a woman’s Reproductive Health Rights as a basic human right in the Philippine Jurisdiction. To begin with, proponents of the Bill assure the Filipino nation it does not allow abortion with the obvious intent to placate and appease pro-life groups and the Philippine Roman Catholic Church that have been rattling their sabres in opposition against it. Such assurance lies exposed against a closer scrutiny of the Bill. At first blush, the Bill would seem to confirm the Bill’s proponents by its Sections 2 and 4c. However, Section 2 reveals a caveat, that the respect for life must be, “in conformity with internationally recognized human rights standards” (underscoring supplied). Here lies the rub. At the moment, “Reproductive Human Rights” as a human right has been repeatedly mentioned in different international treaties, conventions, conferences, consultation documents, and may already have attained the status of an international customary right. In fact some international law practitioners and academicians have raised the awareness of an international effort, whether concerted or not, to promote the concept of Reproductive Human Rights as an international customary right. The impact of transformation into an international customary right would have profound and disturbing resonances in the Philippine legal jurisdiction because of the aforementioned proviso.

The concept, “Reproductive Health Rights”, in HB 5043 is defined adopting its internationally accepted meaning that arguably includes abortion as an element of the right. If HB 5043 is enacted in its current form and content, these rights would become entrenched in our domestic laws. As a result there would no longer be any hindrance for the pro-choice camp and proponents of the Bill to petition for the repeal of anti-abortion provisions in the Revised Penal Code of the Philippines and other domestic laws inconsistent with it on the strength of the proviso in Section 2 of the Bill. With the Reproductive Human Rights as an international customary human right, repeal of anti-abortion laws would become academic on the simple arguments that the Philippines must comply with international human rights standards (hence must arguably allow abortion), and on the sensible interpretation that to fully exercise a woman’s reproductive human rights, an abortion of an unwanted pregnancy, for example, must be afforded as an option.

More importantly, Section 4d of the HB 5043 that specifically defined Reproductive Human Rights (practically copied from international conventions/treaties) supports abortion as an option as it is not qualified by the same proviso found in Section 4c (... Provided that these are not against the law). The omission of the Section 4c limiting proviso in Section 4d is a telling strategy, a sleight of a dubious hand. To have the right to decide and carry out decisions concerning the number, timing, and spacing of children specifically enumerated in Section 4d necessarily connotes abortion of unwanted or mistimed pregnancies. As an international customary right, it would become incumbent on the Philippine government to provide services and make abortion legal, safe, and accessible to all women to comply with its international obligations. No amount of semantics could hide the very fact that a woman’s reproductive human rights, to make full sense, abortion of unwanted pregnancies is inherently a sub context.

Finally, Philippine criminal anti-abortion laws are gender discriminatory, being applicable only to women in general and arguably contrary to Gender Equality (Section 4e) and Gender Equity (Section 4f) of the Bill. Pro-choice proponents would no longer be precluded from campaigning and lobbying the Philippine Congress to pass a law repealing anti-abortion laws on the foregoing arguments. In fact, an implied repeal of current anti-abortion laws may also be construed pursuant to Section 26 (Repealing Clause) of the Bill itself.