Challenging Fundamentalist Catholic Dogma in Philippine Law
With Freedom of Conscience and Religion
(Published in RRights Now! Vol. 3, Nos. 1 & 2 Double Issue Jan. to Dec.2003, WAM & 3RG)
By Clara Rita A. Padilla, J.D.
The exercise of one’s religion is a basic right. There is danger, however, when the beliefs of one
dominant religion such as the Catholic Church is enacted into law and policy. In such case, the religious beliefs and rights of others--who do not share the Catholic Church hierarchical views on, inter alia, contraception, emergency contraception, and abortion--are infringed.
Freedom of thought, conscience and religion
Every woman must be free to make sexual and reproductive decisions according to her own conscience and religious beliefs free from governmental interference, coercion or constraint.
Article 18 of the International Covenant on Civil and Political Rights (ICCPR) protects the individual’s right to freedom of thought, conscience and religion. Article 27 of the ICCPR ensures the rights of minorities, inter alia, to enjoy their own culture and to practice their own religion. Both of these rights are violated when a predominant religion imposes their religion and beliefs on other faiths and believers such as the fundamentalist Catholic and moralist beliefs being adopted as part of the Philippine government’s laws and policies.
The Human Rights Committee (HRC), the United Nations committee tasked to monitor the implementation of the ICCPR, defined the right to freedom of thought, conscience and religion in General Comment 22 as encompassing freedom of thought on all matters including personal conviction and emphasized that the freedom of thought and the freedom of conscience are protected equally with the freedom of religion and belief.  The Committee stated that the fact that a religion is established as official or that its followers comprise the majority of the population shall not result in any impairment of the enjoyment of the rights under the Covenant, including articles 18 and 27, nor in any discrimination against adherents to other religions or non-believers.  The government's role in protecting religious freedom is critical, otherwise, the predominant religion, or even well mobilized minorities, can invoke the state's power to curb the religious freedoms of others whose views differ from theirs. 
In the Philippines, the constitutional guarantee on the free exercise of religion is protected in Section 5, Article III on Bill of Rights of the 1987 Constitution, as follows:
Section 5, Article III (Bill of Rights): "No law shall be made…prohibiting the free exercise [of religion]. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. X x x"
Philippine President Gloria Macapagal-Arroyo’s (GMA) policies restricting access to information and services to the full range of contraceptives, and the penal provision on the woman who undergoes abortion and the physician who performs the abortion drastically curtails an individual's reproductive rights. Such laws and policies interfere with the individual's right to privacy, freedom of religion and conscience.
Separation of Church and State
The guarantee of the separation of church and state is provided under Section 6, Art. II on Declaration of Principles and State Policies of the Philippine Constitution which states that “[t]he separation of [c]hurch and [s]tate shall be inviolable.”
The reason for the principle of separation of church and state is to guard against the views of a dominant church from influencing the conduct of government and influencing policies to cater to a specific dominant church.  The separation of church and state guarantees that one will not abuse the other or that one dominant religion or belief will not be used to govern the state and its people. That is why the Philippine Constitution has constitutional guarantees against public funds to be used for religious purposes and against religious denominations and sects from being registered as political parties. These are, as follows:
Section 29 paragraph 2, Article VI (Legislative Department): "No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the Armed Forces, or to any penal institution, or government orphanage or leprosarium.”
Section 2 paragraph 5, Article IX, C (Commission on Elections): "Religious denominations and sects shall not be registered [as political parties]."
When GMA justified the diversion of 50 million pesos of the Department of Health (DOH) contraceptive funds to the Couples for Christ to promote a nationwide campaign on “natural family planning” (NFP) with the words “since the majority of Filipino families are Catholics," such use of government funds and denial of access to information and services to the full range of contraceptive methods is in furtherance of Catholic religious beliefs.  Further, the appropriation of millions of pesos for the use, benefit, and support of the program led by Couples for Christ, whether directly or indirectly, is unconstitutional for violating the constitutional guarantee against the use of public funds for religious purposes.
It must likewise be noted that while the 1987 Constitution guarantees freedom of religion, it also guarantees the non-establishment of religion. Section 5, Article III of the Bill of Rights states: “No law shall be made respecting an establishment of religion....” This clause was included in order to ensure that the government may not coerce anyone to support or participate in religion.  The use of government funds for the Couple’s for Christ-led program on NFP violates the non-establishment clause since it expressly advances the Catholic religion.
The policy forces DOH officials to include religious content within their medical practices and governmental functions. It establishes a formal relationship with Couples for Christ, a Catholic Church-backed group opposed to modern methods of contraception, and compels government officials to support the Couples for Christ’s beliefs, and religion, regardless of their own beliefs.  The policy also implies the DOH’s belief that NFP should solely be practiced disregarding the promotion of the more effective modern methods of contraception. This conveys that DOH favors the Couples for Christ's religion or belief over other religions and religious beliefs. 
Religious Conservatism and the 1987 Philippine Constitution
It is interesting to note that all members of the 1986 Constitutional Commission who drafted the Philippine Constitution were appointed by then President Corazon C. Aquino. The forty-eight delegates represented a range of political stances, from leftists to nationalists but the majority was composed of moderate conservatives including a nun, a priest and a bishop representing the interests of the Catholic Church. 
It is thus no wonder that the religious members in the Constitutional Commission were successful in inserting certain provisions in the Constitution that advances their religion and interests. One example is the provision on tax exemption of churches, mosques and buildings used for religious purposes found in Section 28 paragraph 3, Article VI and the provision that allows religion to be taught in public schools during regular class hours under Section 3 paragraph 3, Article XIV. Both provisions violate the principle of separation of church and state by advancing religion and religious interests.
The Constitutional provision on equal protection of life of the unborn from conception tends to advance the Catholic Church hierarchical view. This provision was not present in the 1935 and 1973 constitutions. Such provision, however, does not prohibit abortion. Hungary also has a constitutional provision protecting life from conception but still permits abortion up to 12 weeks of gestation.  The life of the unborn is not placed exactly on the same level as the life of the woman  as proven by the fact that countries worldwide allow abortion on various grounds  and international standards support the right to safe and legal abortion.
Included in the laws and policies that advance fundamentalist Catholic dogma is the fact that the Philippines has one of the most restrictive abortion laws in the world--penalizing the woman who undergoes abortion and the person assisting the woman. Another example is the fact also that the Philippines is one of the countries in the world where Postinor, an emergency contraceptive, is denied to women even as over 100 countries worldwide have registered and are promoting dedicated emergency contraceptive products or products specially packaged and labeled for emergency contraception (EC).  It is interesting to note that the petition to delist Postinor was filed by Abay Pamilya, an ally of the Catholic Church, and that the head of the Bureau of Food and Drug Administration and DOH--the government agencies that delisted Postinor--were appointees of GMA. With GMA's policies courting the support of the Catholic Church hierarchy, it is no wonder that the BFAD delisted Postinor with the finding that it was “abortifacient.”  Such blatant disregard of the World Health Organization finding that EC is a proven, safe, and effective method of modern contraception bespeaks of the violation of the principle of the separation of church and state.
The Philippine restriction on abortion, one of the vestiges of Spanish colonization in the Philippines, was lifted directly from the old Spanish Penal Code of 1870.  It is ironic that Spain, from which we inherited the Catholic religion and this particular criminal provision, has already liberalized its laws by making abortion legal under certain conditions. Indeed, staunchly Catholic Italy permits abortion on even broader grounds. Belgium, a predominantly Catholic country, has an abortion law that is among the world’s most liberal. 
There are many religions with differing views. Most of the world’s religions, however, recognize the importance of safe and legal abortion under certain circumstances¬. These include the various Protestant denominations, Islam, Hinduism and Buddhism.  The principle of separation of church and state guarantees that our laws and policies must not adopt the position of one religion over all others.
Reviewing Abortion Laws
Prosecution of women who undergo abortion and those who perform abortion is not the answer. Recognizing that the criminalization of abortion does not lessen the number of abortion but makes it dangerous for women, the Cairo and Beijing Conferences urged countries to review penalties against women who undergo abortions.  The United Nations Committee on the Elimination of Discrimination against Women (CEDAW), the treaty monitoring body tasked to monitor the implementation of the Convention on the Elimination of All Forms of Discrimination (Women’s Convention) likewise recommended that State parties remove punitive provisions imposed on women who undergo abortion  and has praised States parties for amending their restrictive legislation.  Other treaty monitoring bodies that have also explicitly asked States parties to review legislation criminalizing abortion are the Committee on the Rights of the Child  (CRC) and the HRC.  CEDAW, CRC, HRC and the Committee on Economic, Social, and Cultural Rights (CESCR) have declared the vital connection between illegal, unsafe abortion and high rates of maternal mortality.  The HRC also acknowledged that restrictive abortion laws have discriminatory and disproportionate impact on poor, rural women.  In the case of Nepal, the CESCR asked the State party to legalize abortion, specifically when a pregnancy is life-threatening or the result of rape or incest.  CEDAW and HRC have declared restrictive abortion laws as a violation of women’s right to life. 
Moreover, recognizing that access to the full range of contraceptives reduce the need for abortion, the Women’s Convention  and the Beijing and Cairo Conference documents require the provision of information and access to family planning methods. 
There is a global trend of liberalization of abortion laws around the world with almost all laws liberalized in industrialized countries since 1950, over 20 countries across the world liberalizing their laws since 1985 and at least seven countries from different regions between 1995 and 2002.  In Southeast Asia, Malaysia allows exceptions when the life, physical or mental health of the woman is at risk. The abortion laws of Cambodia, Singapore and Vietnam are the most liberal. Cambodia allows abortion without restriction as to reason up to the 14th week of pregnancy, Singapore allows abortions up the 24th week, and Vietnam without any gestational limits. 
The principle of separation of church and state is also undermined when Philippine legislators refrain from needed law reform because of their religious views or because they want to cater to a predominant religion. Just as Presidential Decree 772 on anti-squatting—seen as an injustice to the urban poor and not a solution to the problem of squatting—was repealed, so must the 1932 Revised Penal Code provision penalizing the woman who undergoes abortion and those assisting her be repealed. In the case of Geluz v. Court of Appeals, 2 SCRA 801 (1961), the Philippine Supreme Court stated that abortion is warranted when there exists a medical necessity.
Making abortion safe and legal helps save the lives of thousands of women all over the world.  Where abortion is legal, like in Canada and Turkey, abortion rates did not increase while the Netherlands, with its liberal abortion law and widely accessible contraceptives and free abortion services, has one of the lowest abortion rates in the world.  Deaths due to abortion fell 85 percent after legalization in the US. 
The Philippines--having ratified various treaties and having adopted conference documents upholding women’s right to choose--has a commitment to make abortion safe and legal for Filipino women.
Respecting and Upholding Freedom of Conscience and Religion
The Vatican Council itself declared in 1965 that "the human person has a right to religious freedom. This freedom means that all men [and women] are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his [or her] own beliefs…."  It further declared that "in spreading religious faith and in introducing religious practices everyone ought at all times to refrain from any manner of action which might seem to carry a hint of coercion…."  The Council added that "the Christian faithful, in common with all other men [and women], possess the civil right not to be hindered in leading their lives in accordance with their consciences."  Respect for one's freedom of conscience and religion demands that the Catholic Church hierarchy and its fundamentalist allies uphold this declaration.
The Catholic Church hierarchy is free to exercise its own beliefs but it must respect the free exercise of beliefs of others. What the principle of separation of church and state safeguards is against a particular religion influencing government laws and policies. It is the duty of public officials to ensure that laws and policies do not further the views of one religion but rather ensure that the rights of all citizens are protected.
 Human Rights Committee, General Comment 22: The right to freedom of thought, conscience and religion ( Art. 18) (48th Session 1993), para. 1, available at http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CCPR+General+comment+22.En?OpenDocument.
 Id., at para. 9.
 See Brief of Amici Curiae of Religious Coalition for Reproductive Choice (RCRC), et al. in Don Stenberg, Attorney General of Nebraska, et al. v. Leroy Carhart (No. 99-830) 530 U.S. 914 (2000).
 See Board of Education v. Everson, 330 U.S. 1, 15-16 (1946) where the Court stated that “[n]either a State nor the Federal Government can set up a church…[or] pass laws which aid one religion, aid all religions, or prefer one religion over another…Neither…, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’”
 See “Arroyo steps into birth-control minefield”, Asia Times, January 31, 2003; “Health dept admits diverting funds to buy low-cost drugs”, The Philippine Daily Inquirer, Nov. 25, 2003; GMA March 8, 2003 speech in celebration of International Women’s Day.
 See Lee v. Weisman, 505 U.S. 577, 587 (1992). In Lee, the U.S. Supreme Court invalidated the performance of a nonsectarian prayer by clergy at a public school’s graduation ceremony; see also Santa Fe, 530 U.S. at 310-312 where the court invalidated student-initiated and student-led prayers at football games because they coerce students to participate in religious observances; In Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996), the Seventh Circuit followed Lee in striking down prison programs where inmates’ sentences were affected by participation in substance abuse programs that stressed religion. It was held that the program runs “afoul of the prohibition against the state’s favoring religion in general over non-religion.”; see Center for Reproductive Rights (CRR), Petition for Certiorari in the U.S. Supreme Court case of Greenville Women’s Clinic v. Comm’r, S.C. Dep’t of Health & Envtl. Control).
 See CRR, Petition for Certiorari in Greenville Women’s Clinic.
 Library of Congress, Philippines, A Country Study, Federal Research Division, edited by Ronald E. Dolan (Research Completed June 1991), available at http://lcweb2.loc.gov/frd/cs/phtoc.html
 Hungary, Law No. 79 of 17 Dec. 1992 on the Protection of the Life of the Fetus, translated in 44 International Digest of Health Legislation 249-50 (1993).
 Certain cases do not try to answer the question of when human life begins but give answers that human personhood begins with birth. Williams, Glanville, The fetus and the “right to life” Cambridge law J 1994; 33:71-78, at 78; see R.J. Cook, B.M. Dickens, Human Rights and Abortion Laws, International Journal of Gynecology & Obstetrics 65 (1999), at 85, citing Christian Lawyers Association of South Africa v. The Minister of Health, Case No. 16291/97 (10 July 1998) where a group sued the South African Minister of Health to declare the 1996 Choice on Termination of Pregnancy Act unconstitutional based on section 11 of the 1996 Constitution providing that “everyone has the right to life” and on the argument that a fetus is included in “everyone” since life of a human being starts at conception. The Court ruled that “everyone” was a legal alternative expression to “every person,” and historically legal personhood commences only at live birth. The Court ruled that it was not necessary to address the claim on the biological beginning of human life, since it cannot be concluded that the human life that had begun was that of a legal person. The Court followed the observation that “the question is not whether the conceptus is human but whether it should be given the same legal protection as you and me.”; Under Article 41 of the Philippine Civil Code, a fetus must be born alive (completely delivered from the mother’s womb) to be considered a person endowed with legal personality.
 See CRR, The World’s Abortion Laws 2003.
 International Consortium on Emergency Contraception (ICEC), Dedicated Products and their Availability, available at http://www.cecinfo.org/html/res-product-issues.htm last visited February 24, 2003; ICEC, ECPs Status and Activity by Country, available at http://www.cecinfo.org/files/ecstatusavailability.pdf last visited February 24, 2003; Not-2-LATE.com, The Emergency Contraception Website, available at http://ec.princeton.edu/worldwide/default.asp last visited February 24, 2003; International Planned Parenthood Federation, Directory of Hormonal Contraceptives, available at http://contraceptive.ippf.org/(0jzjzwj2kyllxp5541lljpuj)/introduction.aspx last visited February 24, 2003.
 See Bureau of Food and Drug Administration (BFAD) Circular No. 18 s. 2001, December 7, 2001.
 Pacifico Agabin, "The Legal Perspective on Abortion", The Journal of Reproductive Health, Rights and Ethics, Vol. II, No. 1 (1995), at 2.
 CRR, Religious Voices Worldwide Support Choice.
 See Frances Kissling, Opposition to Legal Abortion: Challenges and Questions, Planned Parenthood Challenges 1991/1; see Brief of Amici Curiae of RCRC, et al. in Stenberg v. Carhart citing the 71st General Convention, Episcopal Church, Resolution No. 1994-A054 (1994); the United Church of Christ, Abortion, A Resolution of the 12th General Synod of the United Church of Christ (1979) reaffirming the right of women to choose abortion in 1981, 1985, 1987, 1989, and 1991 and later upheld in the United Church of Christ, Sexuality and Abortion: A Faithful Response, A Resolution of the 16th General Synod of the United Church of Christ (1987); the Minutes of the 204th General Assembly of the Presbyterian Church (U.S.A.) 372 (1992); the United Methodist Church, Resolution on Responsible Parenthood (1988); the Churchwide Assembly on the Evangelical Lutheran Church in America, Social Teaching Statement on Abortion (1991); the Central Conference of American Rabbis in 1980; the Unitarian Universalist Association affirmed a woman’s right to choose to terminate her pregnancy in 1963 and resolved to reaffirm in 1987 its historic position “supporting the right to choose contraception and abortion as legitimate aspects of the right to privacy.”
 International Conference on Population and Development Programme of Action (ICPD) (paragraph 8.25) and Beijing Platform for Action (paragraph 106 (k)).
 Committee on the Elimination of Discrimination against Women (CEDAW), General Recommendation No. 24 (20th session, 1999), paragraph 31 (c); see CRR, Bringing Rights To Bear (An Analysis of the Work of UN Treaty Monitoring Bodies on Reproductive and Sexual Rights); see CEDAW jurisprudence asking states parties to review legislation making abortion illegal, e.g., Ar gentina, Chile, Chile, Colombia, Dominic an Republic, Ireland, Mexico, Panama, Paraguay, Peru, Peru.
 Se e e.g., Be lgium.
 See e.g., Chad, Palau.
Se e e.g., Ar ge ntina, Chile, Cost a R ic a, Ec uador , Guat emala, Pe ru, Pe ru, Tr inidad and Tobago, Venezuela.
See CRC jurisprudence link illegal, unsafe abortion and high rates of maternal mortality, e.g., Colombia, Guatemala, Nicaragua.
 Se e e.g., Argentina.
 See Ne pal.
 See CEDAW jurisprudence declaring such laws as a violation of the rights to life and health, e.g., Chile, Colombia, Dominican Republic, Paraguay; see supra note 20 on HRC recommendations advising States Parties to review or amend legislation criminalizing abortion as a violation of the right to life.
 CEDAW, Article 10 (h) and Article 12 par. 1.
 ICPD, pars. 7.2, 7.12, 7.15; Beijing Platform for Action, pars. 98, 106 (e).
 CRR, A Global Perspective on Abortion Law, February 6, 2003 (unpublished).
 Estimates show that 585,000 women die annually from pregnancy-related causes and 80,000 women die from unsafe abortion. I.H. Shah et al., Unsafe Abortion, Annual Technical Report 1999, WHO; Div. of Reproductive Health, WHO, Unsafe Abortion 9 (3d. ed. 1998); There are 20 million unsafe abortions each year, 95% of which take place in developing countries with South-East Asia accounting for about 40% of global maternal mortality. World Health Organization, Making Pregnancy Safer in South-East Asia, Regional Health Forum, Volume 6, Number 1, 2002, at 1, available at http://w3.whosea.org/rhf6-1/3pregnancy.htm.
 CRR, Safe Abortion: A Public Health Imperative.
 Declaration on Religious Freedom Dignitatis Humanae on the Right of the Person and of Communities to Social and Civil Freedom in Matters Religious Promulgated by his Holiness Pope Paul VI on December 7, 1965.
Sunday, April 03, 2011
Challenging Fundamentalist Catholic Dogma in Philippine Law
Posted by Clara Rita A. Padilla at 4:56 PM