Dissecting the Reproductive Health

LawPolicy Process

Albert Francis E. Domingo, MD, MSc26 January 2016 | Ateneo de Manila University

Dissecting the RH Law Policy Process: Outline

1. Review of the power play involved using the ‘health policy triangle’

2. Overcoming the legislation threshold

3. Values enshrined in law vs scientific evidence

1.Content, Context,Process and Actors

Review of the power play involved using the ‘health policy triangle’

Context

Actors

Content ProcessWalt and Gilson (1994), as cited in Buse et al. (2012)

Context

Actors

Content Process

Context

Actors

Content Process

1993 NDS 1998 NDHS 2006 FPS 2011 FHS0

50

100

150

200

250

300

Num

ber o

f mat

erna

l de

aths

pe

r 100

,000

live

birt

hs

Context

Actors

Content Process

Context

Actors

Content Process

Context

Actors

Content Processhttp://jsi.ge/eng/facts/birthcontrol.php

Context

Actors

Content Process

Context

Actors

Content Processhttp://www.gov.ph

Context

Actors

Content ProcessWalt and Gilson (1994), as cited in Buse et al. (2012)

Context

Actors

Content Process

Philippine Star/Boy Santos

“With the rise of the Hebrew state,

a new term had to be coined to describethe relation of the Hebrew state with the Mosaic religion: theocracy.

The authority and power of the state was ascribed to God.

The Mosaic creed was not merely regardedas the religion of the state,

it was (at least until Saul) the state itself…As man of God, Moses decided

when the people should travel and when to pitch camp,when they should make war and when peace...

religious motivation was primary and all-embracing:

sacrifices were made and Israel was prohibited from exacting usury, mistreating aliens or using false weights,

all because God commanded these. Estrada v. Escritor, A.M. No. P-02-1651 (2003)

“There was a union of church and stateand Catholicism was the state religion

under the Spanish Constitution of 1876. Civil authorities exercised religious functions

and the friars exercised civil powers...

The coming of the Americans to our country, however,changed this state-church scheme for with the advent of this

regime,the unique American experimentof separation of church and state

was transported to Philippine soil.Estrada v. Escritor, A.M. No. P-02-1651 (2003)

“

The Catholic Church hierarchy has maintainedits traditional stance against modern family planning (FP)

methods, particularly modern (also referred to as “artificial”) contraceptives…

Caught between a hard Church and a soft Stateare the overwhelming majority of Filipinos…

Pernia et al. (2008)

http://holesinthefoam.us/state-vs-church/

2.Dura lex, sed lex

Overcoming the legislation threshold

Factors in Health Policy Change

OLD POLICY

NEW POLICY

Ideologicalinspirations

Change in circumstances

Evidence

Common sense

From research

From experience

Reference: Gray, 2004 (Fig 7.8, p. 291; p. 292)

NOTE: Policy makers operate on a timescale that does not generally admit of delays that research will take.

The Legislation Threshold

LEGISLATION THRESHOLDOpp

ositi

on to

legi

slat

ion

Reference: Gray, 2004 (Fig 7.9, p. 296)

There is an inverse relationship between the magnitude of a health problem and the strength of opposition to legislation framed to prevent it.

Number of people affected

Media interestStrong evidence

Opposition by “industry”Policy has adverse effectsHigh cost of intervention

Values (?) Dominate Policy-making

▣ Politics tends to be driven by beliefs patronage

▣ It is the values returns on investment (ROI) politicians believe to be important that dominate decision-making about policy. Such decisions will be tempered by the availability of resources.

▣ But, resource allocation can also be based on beliefs and values patronage and ROI

▣ Can a shortage of resources force policy-makers to consider the evidence and alter policy as a result?

Reference: Gray, 2004 (p. 287)

3.Not Unconstitutional, but...

Values enshrined in law vs. scientific evidence

“...the issue before this honorable court

is not when life begins…The Constitution, in Article II, Section 12

textually commands the Stateto protect the life of the unborn from conception– but it does not define the term “conception”.

While delegates to the 1986 Constitutional Commissiondisagreed as to its meaning, they agreed that Article II, Section 12 was intended

to constitutionally bar any congress or any courtfrom ever adopting in this jurisdiction

the decision of the United States Supreme Courtin the case of Roe v. Wade.

Solicitor General Francis H. Jardeleza,at the Oral Arguments on Imbong v. Ochoa

“...when life begins is not the issue…

twenty-six years after the advent of Article II,Section 12 – and that is a quarter of a century of advances

in science and medicine, Congress passed the RH Law.

Even then, the Congress, just like the Constitutional Commission, was divided on the question of when life

begins. Congress chose not to answer the

question. Solicitor General Francis H. Jardeleza,

at the Oral Arguments on Imbong v. Ochoa

“The constitutional question at hand is:

whether or not the Congress,in the exercise of its police power,

enact[ed] the RH Law –a social legislation that provides womenwith universal access to effective, legal,

non-abortifacient contraceptive drugs and devices, and to services and information thereon.

Solicitor General Francis H. Jardeleza,at the Oral Arguments on Imbong v. Ochoa

“Majority of the Members of the Court

are of the position thatthe question of [when] life beginsis a scientific and medical issue

that should not be decided, at this stage,

without proper hearing and evidence…

From the Decision in Imbong v. Ochoa

The RH Law is Not Unconstitutional, but…

1. The requirement to refer patients seeking MFP methods is restricted

2. Parental consent is needed for minors to access MFP methods

3. Health care providers not disseminating information on RH cannot be punished

4. The consent of the spouse is required for married individuals to undergo RH procedures

5. Health care providers not referring non-emergent patients for RH services or information cannot be punished

6. Any public officer hindering full RH implementation or not supporting RH cannot be punished

7. Any conscientious objector cannot be required to render pro-bono service to be accredited by PhilHealth

8. An abortifacient is any drug or device that can destroy a fetus or prevent the implantation of a fertilized ovum

9. Health service providers who will require parental consent from minors not in emergencies or serious situations cannot be punished

Thanks!

Any questions?Facebook.com/aedomingoTwitter.com/AlbertDomingo

Credits

Special thanks to all the people who made and released these awesome resources for free:▣ Presentation template by SlidesCarnival▣ Justice icons by Arthur Shlain▣ Photographs by Unsplash