Supreme Court of the Philippines, The Responsible Parenthood and Reproductive Health Act of 2012:
Opinions supporting freedom of conscience (April, 2014)
Teresita J. Leonardo-de Castro
The RH Law and the Freedom of Religion and freedom of Speech [P. 22]
Freedom of religion and freedom of speech are among our
people's most cherished liberties. Petitioners assert that these freedoms
are seriously infringed by the RH Law.
Freedom of Religion
Religious freedom is guaranteed under Section 5, Article
III or the 1987 Constitution:
Section 5. No law shall be made
respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or
[P. 23] preference, shall forever be allowed. No
religious test shall be required for the exercise of civil or political
According to petitioners, the RH Law compels them to act
against their religious beliefs and threatens them with criminal sanction if
they insist on exercising the teachings of their faith. They point to
Sections 7 and 23(a)(3) of the RH Law as the provisions impinging on their
Petitioners assail Section 7's directive to extend family
planning services to paying patients of private health facilities with the
exception of non-maternity specialty hospitals and hospitals owned and
operated by a religious group. The exception is, however, subject to the
alternative mandate of referring the person seeking reproductive health care
and services to another health facility which is conveniently accessible.
Thus, while private health facilities run by conscientious objectors have no
duty to render the reproductive health care and services required under the
RH Law, such facilities are mandated to refer the patient to another health
facility which will perform the said services. This same obligation to refer
to another health care provider is found in Section 23(a)(3), which imposes
criminal sanctions on any private or public health care provider which
refuses to extend quality health care services and information to a person
seeking reproductive health service and information.
Petitioners claim that the RH Law does not truly respect
the religious freedom of a conscientious objector when it imposes upon the
latter the duty to refer a person seeking reproductive health services to
another health care provider. The imposition of such duty to refer makes the
referring objector complicit to the methods and acts of the referred health
care provider. Thus, petitioners assert that while the law does not directly
violate the religious freedom of the conscientious objector, there is still
an indirect violation of religious freedom.
For its part, the Government claims that, contrary to
petitioners' contention, the RH Law does not violate petitioners' religious
freedom. Rather, the RH Law recognizes and accommodates a person's right to
exercise his or her religion. According to the Government, the mandate of
Section 5, Article III of the 1987 Constitution is to protect and promote
religious liberty; the freedom from any government compulsion to adhere to a
specific religion or to none at all. Congress, in enacting the RH Law,
recognized and acknowledged a person's right to his faith by expressly
providing in Section 2 of the RH Law that the State recognizes and
guarantees the "right to choose and make decisions for themselves in
[P. 24] accordance with their religious convictions", particularly, the "right or
spouses to found a family in accordance with their religious convictions and
the demands of responsible parenthood". Moreover,
Section 3, which lays down
the guiding principles for the implementation of the RH Law, expressly
provides in its paragraph (h) that the "State shall respect individuals'
preferences and choice of family planning methods that are in accordance
with their religious convictions and cultural beliefs, taking into
consideration the State's obligations under various human rights
instruments." Clearly, therefore, the RH Law was crafted within the context
that each person has a religious belief deserving of recognition and
respect. The general direction of the RH Law therefore is to accommodate.
This principle of religious tolerance and acceptance is concretized in its
Sections 7 and
According to the Government:
Based on Section 7, a private health facility owned and
operated by a religious group has the option to provide the full range of
modern family planning methods. However, if due to its religious convictions
it shall opt not to do so, it is duty bound to immediately refer the person
seeking such care to a conveniently accessible health facility which is
capable of doing so.
Section 23(a)(3) similarly affords a health care
provider the right to refuse to treat a person due to his religious
convictions, on the condition that he must also refer the person to another
health care provider who is capable and willing to extend the service.
The RH Law excludes from its coverage private health
facilities owned and operated by religious groups and health care providers,
who have objections based on their religious convictions. The exemption
provides that these private health facilities and health care providers
cannot be compelled or coerced to provide reproductive health services when
such would be in conflict with their religious beliefs.
Having the choice is the essence of religious liberty.
Since these private health facilities and health care providers are not
compelled to disobey their religious beliefs, their freedom of religion is
The Government further explains that the requirement to
immediately refer a person to another health facility and health care
provider docs not offend religious freedom. Section 5, Article III of the
1987 Constitution is a protection against dogmatic compulsion and not a
shield against civic obligations. Sections 7 and 23(a)(3) of the RH Law
generally allow private health facilities and health care providers to ref
use, based on religious [P.
25] grounds, to extend services and in formation to
persons requesting for such. This "opt-out clause" is the Government's
accommodation to the religious beliefs of these private health facilities
and health care providers. There is therefore no burden on their religious
freedom and the "opt-out clause" does not offend the objector's religious
For the Government, religious liberty is the freedom from
coercion by the State to adhere either to a specific religion or to none at
all. The act of referring a person to another health facility or health care
provider is not a compulsion for the religious private health facility and
health care provider either to violate their religious beliefs or to accept
another's beliefs. Moreover, the accommodation afforded by the State to
religion is not a shield against civic obligations, but must be balanced
with another's right to health and information. That is the very purpose of
the proviso that a religious private health facility or a health care
provider who has a conscientious objection must nonetheless refer the
patient to another non-objecting facility and health care provider.38
The position of petitioners is correct.
Estrada v. Escritor39
established the test to be used in deciding cases involving freedom of
x x x in resolving claims involving religious freedom (1)
benevolent neutrality or accommodation, whether mandatory or permissive, is
the spirit, intent and framework underlying the religion clauses in our
Constitution; and (2) in deciding a plea of exemption based on the Free
Exercise Clause .... it is the compelling state interest test the strictest
test, which must be applied.
In addressing the constitutionally guaranteed religious
freedom of the people, the Stale should adopt an attitude or benevolent
neutrality or accommodation. And on the matter of carving an exemption to
the free exercise aspect of religious freedom, a compelling state interest
must be shown and the least restrictive approach should be taken.
The Government essentially agrees with petitioners that
the duty to refer is a condition imposed on conscientious objectors or
those, who on the [P.26] basis of their religious beliefs, are exempted from the
legal obligations to provide a full range of modern family planning methods
under Section 7. They are required to immediately refer a person seeking
reproductive health care and services to another health care service
provider within the same facility or one which is conveniently accessible
under Section 23(a)(3) of the RH Law. The contending parties, however,
disagree on the implications of such duty to refer as a condition on a
conscientious objector's right to free exercise of religion. Petitioners
posit that such a condition is unconstitutional for being an undue burden on
their right to freely exercise their religious beliefs, while the Government
maintains that it is a constitutionally valid limitation on the religious
freedom of religious objectors.
I join the majority in upholding the petitioners'
The duty to refer as a condition on conscientious
objection is a restriction of a conscientious objector's freedom to exercise
his or her religious beliefs. While a conscientious objector is allowed, on
grounds of religious freedom, to be exempted from the legal obligations
imposed under Sections 7 and
23(a)(3) of the RH Law, he or she is
nonetheless imposed a substitute duty, that of referral of a person seeking
reproductive health care and services to another health care service
provider who may be willing and able to provide a full range of modern
family planning methods or reproductive health care services.
Estrada v. Escritor, in recognition of freedom of
religion as a preferred right, observed the standard of strict scrutiny and
required a showing by the Government of a compelling state interest to
justify the curtailment of the right to freely exercise one's religious
beliefs. In these present cases, the Government failed to pass strict
scrutiny as it was not able to give any clear compelling state interest.
Worse, as pointed out by the ponencia of Justice Mendoza, during the oral
arguments, the Government did not even see the need to show a compelling
state interest on the flimsy and off-tangent argument that the legal
obligations imposed by the law is "an ordinary health legislation" and not a
"pure free exercise matter." Yet, by recognizing conscientious objectors as
constituting a class or group that is exempt from certain legal obligations
under Sections 7 and
23(a)(3), the RH Law itself acknowledges that the
religious beliefs of conscientious objectors and their constitutionally
guaranteed right to the free exercise of such beliefs are entitled to
respect and protection. This recognition afforded by the RH Law to
conscientious objectors is irreconcilable with the Government's position
that the imposition of the substitute duty to refer is outside the
protection afforded to free exercise. It also contradicts the Government's
[P. 27] stance that the compelling interest test should not be applied because the
accommodation given by the RH Law to conscientious objectors is justified by
the standard of the balancing of the freedom of religion of conscientious
objectors with the interests of patients to health and information.
The guarantee of free exercise of religion proscribes the
imposition of substantial burden upon the said right absent any compelling
state interest to justify the same. A governmental restriction substantially
burdens religious freedom when it bans behavior that the objectors see as
religiously compelled, or mandates behavior that the objectors see as
Requiring people to do something that "is forbidden by [their] faith"
qualifies as a substantial burden on religious practice.41
"While the compulsion may be indirect, the infringement upon free exercise
is nonetheless substantial" and that is so even where the relevant "conduct
proscribed by a religious faith" is indirect complicity in other conduct,
and the complicity line that the religious claimant draws appears
inconsistent or unsound to the reviewing court because "[i]t is not for
[secular courts] to say that the line [the claimant] drew was an
Thus, the law recognizes that requiring a person to do something that he or
she sincerely sees as sinful is a "substantial burden" on his/her religion,
and people's definition of "sinful" often includes sins of complicity and
not just sins of direct action.43
Viewed under the lens of the above substantial burden
standard, the substitute duty to refer imposed on conscientious objectors
under Sections 7 and
23(a)(3) is a substantial burden on a conscientious
objector's right to the free exercise of religious beliefs as it mandates
behavior that the objectors see as religiously prohibited even if done
indirectly through complicity and not directly or personally. It places
conscientious objectors in an unconscionable dilemma - either to violate the
law or to violate their faith. Therefore, the substitute duty to refer under
the said provisions of the RH Law violates the right to free exercise of
religion of conscientious
[P. 28] objectors. In the matter of free exercise of
religion, what cannot be compelled to be done directly may also not be
compelled to be done indirectly.
Religious or moral diversity in the health care
profession is a public good. Preserving religious and moral diversity within
the health care profession helps to guard against the tragic ethical mi
stakes that occur when dissent is silenced.44
This is true as regards the free exercise of religion. This is also true as
regards the freedom of speech of medical practitioners.
Freedom of Speech
The right to speak - freedom of speech - is a fundamental
That liberty is specifically protected under Section 4, Article III of the
Section 4. No law shall be passed abridging the freedom
of speech, of expression, or the press or the right of the people peaceably
to assemble and petition the government for redress or grievances. (Emphasis
Petitioners argue that the RH Law unduly restricts the
freedom of expression and compels private health care service providers
which conscientiously object to the RH Law to be a mou thpiece of the
Government's RH Law program. They are required under subparagraphs (1) and
(3), paragraph (a) of Section 23 to participate in the information
dissemination component of the Government's RH Law program, under pain of
criminal sanction. The assailed provision reads:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who
29] (1) Knowingly, withhold information or restrict the
dissemination thereof, and/or intentionally provide incorrect information
regarding programs and services on reproductive health including the right
to informed choice and access to a full range or legal, medically-safe non-abortifacient and effective family planning methods:
x x x
x x x x x x
(3) Refuse to extend quality health care services and
information on account of the person's marital status, gender, age,
religious convictions, personal circumstances, or nature of work:
That the conscientious objection of a health care service provider based on
his/her ethical or religious beliefs shall be respected; however. the
conscientious objector shall immediately refer the person seeking such care
and services to another health care service provider within the same
facility or one which is conveniently accessible: Provided. further, That
the person is not in an emergency condition or serious case as defined in
Republic Act No. 8344. which penalties the refusal or hospitals and medical
clinics to administer appropriate initial medical treatment and support in
emergency and serious cases: x x x (Emphases supplied)
The Government responds to the contention of the petitioners in this way:
Section 23 (A)(I) of the
RH Law docs not violate the freedom of
expression under Section 4, Article III of the 1987 Philippine Constitution.
The prohibition in Section 23 (A)(I) of the RH Law
prohibited conduct, not speech.
It bears repeating at the outset that Congress has the
inimitable power to define unlawful acts that need to be regulated or
prohibited. The power to define crimes and prescribe their corresponding
penalties is legislative in nature and inherent in the sovereign power of
the State to maintain social order as an aspect of police power. The
legislature may even forbid and penalize acts formerly considered innocent
and lawful provided that no constitutional rights have been abridged.
Withholding or restricting information or providing
incorrect information primarily contemplate actions and not speech. To argue
otherwise on the basis that speech accompanies the prohibited conduct is to
improperly de-compartmentalize the act. The rule is that conduct may be
regulated even though it is intertwined with expression. The ruling of
[P. 30] this
Honorable Court in Southern Hemisphere Engagement vs. Anti-Terrorism Council
Petitioners notion on the transmission of message is
entirely inaccurate, as it unduly focuses on just one particle of an element
of the crime. Almost every commission of a crime entails some mincing of
words on the part of the offender like in declaring to launch overt criminal
acts against a victim, in haggling on the amount of ransom or conditions, or
in negotiating deceitful transaction. xxx xxx xxx
Utterances not elemental but inevitably incidental to the
doing or the criminal conduct alter neither the intent of the law to punish
socially harmful nor the essence of the whole act as conduct and not speech.
The fact, therefore, that the conduct proscribed under
Section 23(A)(1) may be carried out accompanied with some speech does not
make it protected speech under Section 4, Article III or the Constitution.
It rarely has been suggested that the constitutional freedom of speech and
press extends its immunity to speech or writing used as an integral part of
conduct in violation or a valid criminal statute. As elucidated in the
leading case of Giboney v. Empire Storage & Ice Co.:
xxx But placards used as an essential and inseparable
part of a grave offense against an important public law cannot immunize that
unlawful conduct from state control. Virginia Electric Co. v. Board, 319
U.S. 533, 319 U.S. 539; Thomas v. Collins, 323 U.S. 516, 323, U.S. 536, 323
U.S. 537, 323 U.S. 538, 323 U.S. 539-540. Nor can we say that the
publication here should not have been restrained because of the possibility of separating the picketing conduct into illegal and legal parts.
Thomas v. Collins, supra, at 323 U.S. 547. For the placards were to
effectuate the purposes of an unlawful combination, and their sole, unlawful
immediate objective was to induce Empire to violate the Missouri law by
acquiescing in unlawful demands to agree not to sell ice to non-union
peddlers. It is true that the agreements and course of conduct here were, as
in most instances, brought about through speaking or writing. But it has
never been deemed an abridgment of freedom of speech or press to make a
course of conduct illegal merely because the conduct was in part initiated,
evidenced, or carried out by means of language, either spoken, written, or
printed. Sec e.g .. Fox v. Washington, 236 U.S. 273, 236 U.S. 277;
Chaplinsky v. New Hampshire, 315 U.S. 568. Such an expansive interpretation
of the constitutional guaranties of speech and press would make it
practically impossible ever to enforce laws against agreements in
[P. 31] restraint
of trade, as well as many other agreements and conspiracies deemed injurious
Similarly in the instant case, any speech or
communication used as an essential and inseparable part of a grave offense
against an important public law cannot immunize that unlawful conduct from
state control. To reiterate, the important public interest advanced by the
RH Law is to provide accessible, effective and quality reproductive health
care services to ensure maternal and child health, the health of the unborn,
safe delivery and birth of healthy children, and sound replacement rate, in
line with the States duty to promote the health responsible parenthood,
social justice and full human development. This objective of the State will
be rendered inutile without giving the people full, unbiased and accurate
information about reproductive health care services. This is whatSection 23(a)(1)of the RH Law wishes to secure.
Also, it must be underscored that the RH Law promotes the
ideas of informed choice and voluntarism. Informed choice and voluntarism
means effective access to in formation that allows individuals to freely
make their own decision upon the exercise of free choice and not obtained by
any special inducements or forms of coercion or misinterpretation, based on
accurate and complete information on a broad range of reproductive health
services. Thus, in achieving this end, a health care service provider must
act with good faith in the exercise of his or her duties. By good faith
means refraining from coercing or misleading patients with incomplete,
inaccurate and incorrect information. It cannot be gainsaid that the State
has the right and duty to prohibit and penalize a health care service
provider who acts otherwise.
Fittingly, legislative determination of the breadth of
public interest should command respect for Congress is the constitutional
body vested with the power to enact laws. Its representative composition
induces judgment culled from the diverse regions of the country. Normally,
this should assure that a piece of police legislation is a reflection of
what public interest contemporancously encompasses.46
Section 23(a)(1) of the RH Law declares the following
acts, if committed by any health care service provider, as criminal:
(a) knowingly withholding information or restricting
the dissemination of such information; and,
(b) intentionally providing incorrect information
regarding programs and services on reproductive health, including the
right to informed choice and access to a full range of legal,
medically-sale, non-abortifacient and effective family planning methods.
[P. 32] Section 23(a)(1) of the RH Law regulates both the
"professional speech" and "speech as a professional" of a doctor or a health
care service provider. "Professional speech" refers to the communication
between doctor and patient that occurs in the course or ongoing medical
consultation or treatment. It pertains to speech uttered (in the case of
Section 23(a)(1), speech either not uttered or should not have been
uttered) in the course and conduct of professional practice of the doctor or
health care provider.47
"Speech of/as a professional", on the other hand, is the speech made by a
doctor or health care service provider to the public in general, such as an
piece submitted to a newspaper or a speech given in a conference or
statements given during an interview.49
The prohibition against the acts covered under Section 23(a)(1) is aimed at promoting the universal access policy of the RH Law. In
particular, it mandates doctors and other health care service providers,
when speaking to a specific client or to the public at large, to provide and
disseminate full information on modern family planning methods, especially
the use of IUDs and contraceptives, in line with the Government's universal
access policy. In accordance with Section 23(a)(1), doctors and other
health care service providers must give patients and the public alike
information and advice on the merits of reproductive health, the benefits of
family planning, and the advantages of the use of contraceptives as "legal,
medically-safe, non-abortifacient and effective family planning methods".
Thus, the Government has determined the content of the information to be
given and disseminated by doctors and health care service providers.
In its proper context, the prohibited act of either
withholding or restricting the dissemination of information on reproductive
health covers the decision of a doctor or a health care service provider in
his/her personal and professional capacity not to endorse or unfavorably
talk about the use of contraceptives. On the other hand, the prohibited act
of "intentionally providing incorrect information" on reproductive health
programs and services logically covers the medical opinion of a doctor that
is critical of the use of contraceptives and contradicts the FDA, such as
giving advice that the use of IUDs and contraceptives may be unhealthy to
women. Thus, Section 23(a)(1) of the RH Law includes both the act of not
giving the Government-mandated information and the act of giving information
contrary to or different from that mandated by the Government, whether the
basis of the doctor or health care service provider is his or her religious
belief or [P. 33] professional opinion. In this connection, it is worth noting that
there is no provision to accommodate the conscientious objector under
Section 23(a)(1). Nor does Section 23(a)(1) have room for a doctor or
health care service provider who acts against the said provision on the
ground of that doctor's well-considered professional opinion.
Under Section 23(a)(1), the dissemination or information
is strictly regimented. Every doctor or health care provider should walk in
unison and march in cadence to the RH Law's tune. Under pain of criminal
prosecution, no doctor or health care service provider may refuse to march,
or follow the beat of a different drummer, or hum his own tune. In practical
application, regardless of their religious convictions, it is felonious for
doctors and other health care service providers to talk of natural family
planning only or to limit their advice, whether in personal or professional
capacity, to natural methods of family planning only. Regardless or their
religious convictions and professional opinion, too, it is criminal for them
to make statements about the risks IUDs and contraceptives pose to both the
unborn and the mother where the FDA has already made a determination that
such IUDs and contraceptives are "legal , medically-safe, non-abortifacient
and effective family planning methods."
Thus, Section 23(a)(1) effectively compels the doctor or
health care provider to make a speech that promotes the Government's RH Law
program, particularly the use of contraceptive drugs and devices, regardless
of the doctor's religious conviction or well-considered professional
opinion. lt dictates upon the doctor what should be said and what should
not be said in matters of reproductive health. In other words, Section 23(a)(1) requires the doctor or health care service provider to make a
compelled speech, a speech that may be against the doctor's spiritual belief
or professional opinion. Moreover, the threat of criminal sanction enhances
the chilling effect of the law and serves to deter a health care service
provider from expressing his professional views or exercising his religious
The ratiocination of the Government utilizing the
speech-conduct dichotomy does not hold water. In particular, the Government
characterizes the acts punished under Section 23(a)(1) (namely, withholding
or restricting information or providing incorrect information) as conduct,
not speech, and therefore not covered by the constitutional guarantee on
freedom of specch.50
[P. 34] However, the "conduct" penalized under Section 23(a)(1)
is essentially the act of not speaking or speaking against the Government's
RH Law message, particularly about artificial methods of family planning.
What the law punishes, therefore, is the assertion by the doctor or health
care service provider of his or her freedom of the mind as a professional.
The freedom of speech is a protection of the individual's
freedom of thought and it includes both the right to speak freely and the
right to refrain from speaking at all. The right to speak and the right to
refrain from speaking are complementary components of the broader concept of
"individual freedom of mind."51
In other words, the freedom of speech guarantees that no person can be
compelled by the Government to carry and convey the Government's ideology.
Compelled speech is not free speech. One who is free to
speak cannot be made to say something against his will or violative of his
beliefs. The Government may not require a person to subscribe to and promote
the Government's ideology. Government action that stifles speech on account
of its message, or that requires the utterance of a particular message
favored by the Government, contravenes freedom of exprcssion.52
Indeed, "a society that tells its doctors under pain of
criminal penalty what they may not tell their patients is not a free
The RH Law, however, precisely does that to our society. It dictates upon
the doctor what to tell his/her patients in matters of family planning, and
threatens the doctor with criminal prosecution in case of non-compliance.
Laws of this sort pose the inherent risk that the Government seeks not to
advance a legitimate regulatory goal, but to suppress unpopular ideas or
information or to manipulate the public debate through coercion rather than
The value of free speech concerning the matter of the RH
Law for health care providers in the marketplace of ideas is significant:
The driving force and strongest argument for retaining
room for moral refusers in the profession is the fact that many or the
issues facing physicians raises metaphysical questions entirely immune to
empirical testing or any other comprehensive doctrine for distinguishing
right from wrong .... We benefit from maintaining diverse viewpoints,
excluding [P. 35] only arguments that are entirely illogical, for the ensuing debate
will help siphon out the most accurate version of moral truth as errors are
revealed and persuasive arguments are strengthened through their collision
Chavez v. Gonzales56
further expounds on the constitutional value or free speech:
Freedom of speech and or the press means something more
than the right to approve existing political beliefs or economic
arrangements, to lend support to official measures, and to take refuge in
the existing climate of opinion on any matter of public consequence. When
atrophied, the right becomes meaningless. The right belongs as well -- if
not more -- to those who question, who do not conform, who differ. The ideas
that may be expressed under this freedom are confined not only to those that
are conventional or acceptable to the majority. To be truly meaningful,
freedom of speech and of the press should allow and even encourage the
articulation of the unorthodox view, though it be hostile to or derided by
others; or though such view "induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger."
To paraphrase Justice Holmes, it is freedom for the thought that we hate, no
less than for the thought that agrees with us.57
To allow the Government to target particular views or
subjects permits the Government to greatly distort the marketplace of ideas.58
Worse, to impose the Government's ideology and restrict the available speech
in the market only to Government-manufactured and mandated speech is a
monopoly of ideas that is anathema to and destructive of a marketplace. It
defeats the public good, particularly that of a free and diverse civil
society whose institutions help shape individuals and provide alternatives
to publicly defined conceptions of the human and civic good.59
Thus, information on RH matters that is strictly regimented and severely
regulated by the Government stunts rather than promotes fully informed
The rule is that a content-based regulation "bears a
heavy presumption of invalidity and is measured against the clear and
present danger rule." It will pass constitutional muster only if justified by a
[P. 36] compelling reason, and the restrictions imposed are neither overbroad
Section 23(a)(1), a content-based regulation, is heavily
burdened by a presumption of unconstitutionality. Placed under the test of
the Government miserably failed to advance a compelling reason that would
overcome the presumption of the RH Law's invalidity. The Government simply
invokes the universal access policy but such policy may be advanced without
unnecessarily curtailing the right of the doctors or health care service
providers to speak their minds freely, and not what the Government commands.
In particular, doctors or health care service providers could have been
allowed to express their considered professional opinion with the
requirement to disclose the fact that their opinion differs from the
Government's stand or policy in order to ensure a free and well-informed
decision on the matter. Moreover, the overly broad and vague language of
Section 23(a)(1) primarily contributes to the negative chilling impact of
that provision on even the health care service provider's "speech as a
The Government also failed to show that speech may be
compelled or restrained because there is substantial danger that the speech
will likely lead to an evil the government has a right to prevent. There is
no demonstration of evil consequences sought to be prevented which are
substantive, extremely serious and highly imminent.62
In other words, no clear and present danger to be prevented has been
All told, Section 23(a)(1) of the RH Law, a tool to
promote the universal access policy established in Section 7 of that law,
constitutes an undue and unconstitutional restriction of the freedom of
Section 23(a)(1) of the RH Law is constitutionally
infirm on another ground. It defeats and contradicts the RH Law's own
declared policy in the first paragraph of its Section 2 that the State
recognizes and guarantees the right of all persons "to education and
information, and the right to choose and make decisions for themselves in
accordance with their religious convictions, ethics, cultural beliefs, and
the demands of responsible parenthood," as well as the guiding principle in
its Section 3 that the "right to make free and informed decisions, which is
central to the exercise of any right, shall not be subjected to any form of
coercion and must be fully guaranteed by the State, like the right itself."
More importantly, it deprives the people of their constitutional right to
information on matters of public concern, which is guaranteed under Section
7, Article III of the 1987 Constitution. The doctors are being coerced to
toe the line in RH matters by compelling them, under pain of criminal
sanction, to promote the Government's RH Law program and prohibiting them
from contradicting the said government-sponsored RH Law program, even if it
may go against his well-studied professional opinion. It therefore denies
the target beneficiary of the program, the recipients of contraceptive drugs
and devices, of valuable information that is the premise of the right to
make a truly free and fully informed decision on a matter affecting the
right to life of the unborn and a woman's right to health. Informed
decision-making involves informed consent and there can be no real informed
consent until and unless one is provided full information about the
benefits, risks and alternatives, taking into account the person's physical
well-being, personal circumstances, beliefs, and priorities.
35. Consolidated Comment, pp. 56-58.
36. Id. at 58.
37. Id. at 58-59.
38. Id. at 59-62.
39. A.M. No. P-02-1651 (Formerly OCA I.P.I No.
00-1021-P), June 22, 2006.
40. Volokh Eugene,
What is the Religious Freedom Restoration Act?, citing Sherbert v.
Verner (374 U.S. 398 ) and Wisconsin v. Yoder (406 U.S.
205 ), posted on December 2, 2013, last visited April 7, 2014.
41. Volokh Eugene,
Brief Note on the "Substantial Burden" Requirement, citing United
States v. Lee ( 455 U.S. 252 ) and Hernandez v. Commissioner
(490 U.S. 680 ), posted on December 5, 2013, last visited April 7,
42. Id. quoting Thomas v. Review Board of
the Indiana Employment Security Division (450 U.S. 707 ).
43. Volokh Eugene,
Hobby Lobby, the Employer Mandate, and Religious Exemptions,
posted on December 2, 2013, last visited April 7, 2014.
44. Galston, William and Melissa Rogers,
Health Care Providers' Consciences and Patients' Needs: The Quest for
Balance, last accessed on November 11, 2013.
45. See Social Weather Stations, Inc. v.
Commission on Elections, 409 Phil. 571, 590 (2001), speaking of the
"fundamental right of expression"; and, MVRS Publications, Inc. v.
Islamic Da'wah Council of the Philippines, Inc., 444 Phil. 230, 253
(2003), speaking of the "fundamental right to free speech".
46. Consolidated Comment, pp. 79-82.
47. See Post, Robert, Informed Consent to
Abortion: A First Amendment Analysis of Compelled Physician Speech, U.
ILL. L.REV. 939, 947 (2007).
50. Consolidated Comment, pp. 79-82.
51. Wooley v. Maynard, 430 U.S. 705,
52. Turner Broadcasting System v. Federal
Communication Commission, 512 U.S. 622, 640 (1994).
53. Poe v. Ullman, 367 U.S. 497 (1961),
Douglas, J., dissenting.
54. Turner Broadcasting System v. Federal
Communication Commission, supra note 52 at 641.
55. Holly Fernandez Lynch, CONFLICTS OF
CONSCIENCE IN HEALTH CARE: AN INSTITUTIONAL COMPROMISE, pp. 84-85, cited in
Galston and Rogers, supra note 44.
56. 569 Phil. 155 (2008).
57. Id. at 197-198.
58. Chemerinsky, Erwin, CONSTITUTIONAL LAWS:
PRINCIPLES AND POLICIES, p. 934 (2006).
59. Galston and Rogers, supra note 44.
60. Chavez v. Gonzales, supra note 56
61. See Newsounds Broadcasting Network, Inc.
v. Dy, G.R. Nos. 170270 & 179411, April 2, 2009, 583 SCRA 333, 355. In
particular, the Court said in this case:
The Court is of the position that the actions of the
respondents warrant heightened or
strict scrutiny from the Court, the
test which we have deemed appropriate in assessing content based
restrictions on free speech, as well as for laws dealing with freedom of the
mind or restricting the political process, of laws dealing with the
regulation of speech, gender, or race as well as other fundamental rights as
expansion from its earlier applications to equal protection. The immediate
implication of the application of the "strict scrutiny"test is that the
burden falls upon respondents as agents of government to prove that their
actions do not infringe upon petitioners' constitutional rights. As content
regulation cannot be done in the absence of any compelling reason, the
burden lies with the government to establish such compelling reason to
infringe the right to free expression.
62. Chavez v. Gonzales, supra note 56