Furor over an Alabang ordinance – Fr. Bernas

By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 06:04:00 03/14/2011

I AM, of course, referring to an ordinance that bars distribution of contraceptive drugs and devices in Alabang village. In a copy of the ordinance which I have seen, the Alabang Barangay Council prohibits “Any natural or legal person to advertise within the territorial jurisdiction of the BARANGAY … or sell, offer for free or endorse, promote, prescribe or distribute abortifacients as defined” in the ordinance. The ordinance defines abortifacients as “any device, medicine, substance or practice which may damage, injure, interfere with the natural development, endanger or cause the expulsion or death of an unborn child … Abortifacients include Intrauterine Devices (IUDs), and hormonal contraceptives …” The ordinance lists what it prohibits in an Annex.

Purportedly, this is merely an implementation of Section 37 of RA 5921. What is this Section 37 all about? It is part of the law governing the practice of pharmacy. Specifically it enumerates what drugs and devices may not be sold without a doctor’s prescription. It says: “No drug or chemical product or device capable of provoking abortion or preventing conception as classified by the Food and Drug Administration shall be delivered or sold to any person without a proper prescription by a duly licensed physician.” Violation of this law is a criminal offense punishable by a penalty found in Section 40 of the same law.

It is important to note, therefore, that it is a penal law. Like any penal law it is limited strictly to what it prohibits. Thus, who are covered by it and what exactly does it prohibit?

Pharmacists are covered by the prohibition. RA 5921 is about the regulation of the practice of pharmacy. It is not a regulation of the activity of buyers of pharmaceutical goods but of the actions of pharmacists.

What does RA 5921 prohibit? What act does it punish? It does not prohibit the sale or dispensing without prescription of every contraceptive or abortive device. It prohibits the dispensing without prescription only of contraceptive or abortive drugs or devices “as classified by the Food and Drug Administration.” The FDA is the national body empowered to regulate drugs.

An interesting question is whether the Annex to the Alabang ordinance expands the list of drugs and devices listed by the Food and Drug Administration. It seems to me that the drugs and devices being currently sold over the counter are not on the FDA list. Interesting too is the question whether a barangay council can determine what doctors may or may not prescribe.

These, of course, are technical matters that can easily be verified. I believe, however, that there is something more eerily fundamental here. I see what is happening as an attempt by a sector of the Catholic Church to instrumentalize the power of the state to impose Catholic belief on all others. This is something which gives the Catholic religion a bad name. It is reminiscent of the Inquisition.

We might perhaps agree about the evil of abortion. But when it comes to contraception, the nation divides mainly along religious lines. The official Catholic teaching is that artificial contraception is immoral. Other religions believe in good faith otherwise. Seeking to impose Catholic belief and practices on non-Catholics and others violates freedom of religion. Freedom of religion does not merely mean freedom to believe. It also means freedom to act or not to act according to one’s belief. And this too is the teaching of Vatican II in its decree “Dignitatis Humanae.”

The Alabang ordinance is not far from a statute declared unconstitutional which said: “Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.”

Of course, the ordinance authors will say that they are not prohibiting the use but merely regulating the sale. But they insult the intelligence of villagers by thinking that the Alabang residents are village idiots who do not have enough brains to see the truth behind the pretense. One does not have to be a genius to understand that the curtailment of sale is intended to prevent the use of what is sold. And therein lies the gross offense. As one court said: “The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a ‘governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’ Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

Finally, the ordinance purports to prescribe a criminal penalty. Only a real court and not a village kangaroo court or vigilante may impose a criminal penalty, and only after trial.

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