I.

1987 Philippine Constitution

ARTICLE III BILL OF RIGHTS
Section 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the laws.

ARTICLE XV THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the
family and shall be protected by the State.
Section 3. The State shall defend:
(1) The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood;
(2) The right of children to assistance, including proper care and nutrition, and
special protection from all forms of neglect, abuse, cruelty, exploitation and other
conditions prejudicial to their development;
(3) The right of the family to a family living wage and income; and
(4) The right of families or family associations to participate in the planning and
implementation of policies and programs that affect them.
Section 4. The family has the duty to care for its elderly members but the State may
also do so through just programs of social security.



II. International Law
A. Universal Declaration of Human Rights
Article 1.
All human beings are born free and equal in dignity and rights. They are endowed
with reason and conscience and should act towards one another in a spirit of
brotherhood.
Article 2.
Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political,
jurisdictional or international status of the country or territory to which a person
belongs, whether it be independent, trust, non-self-governing or under any other
limitation of sovereignty.
Article 3.
Everyone has the right to life, liberty and security of person.

Article 12.
No one shall be subjected to arbitrary interference with his privacy, family, home
or correspondence, nor to attacks upon his honour and reputation. Everyone has
the right to the protection of the law against such interference or attacks.

Article 16.
(1) Men and women of full age, without any limitation due to race, nationality or
religion, have the right to marry and to found a family. They are entitled to equal
rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the
intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled
to protection by society and the State

Article 23.
(1) Everyone has the right to work, to free choice of employment, to just and
favourable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal
work.
(3) Everyone who works has the right to just and favourable remuneration
ensuring for himself and his family an existence worthy of human dignity, and
supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of
his interests.

Article 25.
(1) Everyone has the right to a standard of living adequate for the health and well-
being of himself and of his family, including food, clothing, housing and medical
care and necessary social services, and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack of
livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All
children, whether born in or out of wedlock, shall enjoy the same social
protection.
Article 26.
(1) Everyone has the right to education. Education shall be free, at least in the
elementary and fundamental stages. Elementary education shall be compulsory.
Technical and professional education shall be made generally available and higher
education shall be equally accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human personality
and to the strengthening of respect for human rights and fundamental freedoms. It
shall promote understanding, tolerance and friendship among all nations, racial or
religious groups, and shall further the activities of the United Nations for the
maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to
their children.

B. International Covenant on Civil and Political Rights
Article 10
1. All persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person.
C. International Covenant on Economic, Social and Cultural Rights
Article 17
1. The States Parties to the present Covenant shall furnish their reports in stages, in
accordance with a programme to be established by the Economic and Social Council
within one year of the entry into force of the present Covenant after consultation
with the States Parties and the specialized agencies concerned.
2. Reports may indicate factors and difficulties affecting the degree of fulfilment of
obligations under the present Covenant.
3. Where relevant information has previously been furnished to the United Nations
or to any specialized agency by any State Party to the present Covenant, it will not be
necessary to reproduce that information, but a precise reference to the information so
furnished will suffice.
Article 23
The States Parties to the present Covenant agree that international action for the
achievement of the rights recognized in the present Covenant includes such methods
as the conclusion of conventions, the adoption of recommendations, the furnishing of
technical assistance and the holding of regional meetings and technical meetings for
the purpose of consultation and study organized in conjunction with the
Governments concerned.
D. Convention on Elimination of All Forms of Discrimination Against Women
It is adopted in 1979 by the UN General Assembly, is often described as an
international bill of rights for women. Consisting of a preamble and 30 articles, it
defines what constitutes discrimination against women and sets up an agenda for
national action to end such discrimination.
The Convention defines discrimination against women as "...any distinction,
exclusion or restriction made on the basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of men and women, of
human rights and fundamental freedoms in the political, economic, social, cultural,
civil or any other field."
By accepting the Convention, States commit themselves to undertake a series of
measures to end discrimination against women in all forms, including:
to incorporate the principle of equality of men and women in their legal
system, abolish all discriminatory laws and adopt appropriate ones prohibiting
discrimination against women;
to establish tribunals and other public institutions to ensure the effective
protection of women against discrimination; and
to ensure elimination of all acts of discrimination against women by persons,
organizations or enterprises
E. Convention on the Rights of the Child
F. ASEAN Human Rights Declaration

OVERVIEW of DUE PROCESS and EQUAL PROTECTION

Cases:
U.S. Supreme Court
Griswold v. Connecticut, 381 U.S. 479 (1965)
Griswold v. Connecticut
No. 496
Argued March 29-30, 1965
Decided June 7, 1965
381 U.S. 479
APPEAL FROM THE SUPREME COURT
OF ERRORS OF CONNECTICUT
Syllabus
Appellants, the Executive Director of the Planned Parenthood League of Connecticut,
and its medical director, a licensed physician, were convicted as accessories for giving
married persons information and medical advice on how to prevent conception and,
following examination, prescribing a contraceptive device or material for the wife's use.
A Connecticut statute makes it a crime for any person to use any drug or article to
prevent conception. Appellants claimed that the accessory statute, as applied, violated the
Fourteenth Amendment. An intermediate appellate court and the State's highest court
affirmed the judgment.
Held:
1. Appellants have standing to assert the constitutional rights of the married
people.Tileston v. Ullman, 318 U. S. 44, distinguished. P. 381 U. S. 481.
2. The Connecticut statute forbidding use of contraceptives violates the right of marital
privacy which is within the penumbra of specific guarantees of the Bill of Rights. Pp. 381
U. S. 481-486.
151 Conn. 544, 200 A.2d 479, reversed.
Page 381 U. S. 480
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Appellant Griswold is Executive Director of the Planned Parenthood League of
Connecticut. Appellant Buxton is a licensed physician and a professor at the Yale
Medical School who served as Medical Director for the League at its Center in New
Haven -- a center open and operating from November 1 to November 10, 1961, when
appellants were arrested.
They gave information, instruction, and medical advice to married persons as to the
means of preventing conception. They examined the wife and prescribed the best
contraceptive device or material for her use. Fees were usually charged, although some
couples were serviced free.
The statutes whose constitutionality is involved in this appeal are 53-32 and 54-196 of
the General Statutes of Connecticut (1958 rev.). The former provides:
"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."
Section 54-196 provides:
"Any person who assists, abets, counsels, causes, hires or commands another to commit
any offense may be prosecuted and punished as if he were the principal offender."
The appellants were found guilty as accessories and fined $100 each, against the claim
that the accessory statute, as so applied, violated the Fourteenth Amendment. The
Appellate Division of the Circuit Court affirmed. The Supreme Court of Errors affirmed
that judgment. 151 Conn. 544, 200 A.2d 479. We noted probable jurisdiction. 379 U.S.
926.
Page 381 U. S. 481
We think that appellants have standing to raise the constitutional rights of the married
people with whom they had a professional relationship. Tileston v. Ullman, 318 U. S. 44,
is different, for there the plaintiff seeking to represent others asked for a declaratory
Judgment. In that situation, we thought that the requirements of standing should be strict,
lest the standards of "case or controversy" in Article III of the Constitution become
blurred. Here, those doubts are removed by reason of a criminal conviction for serving
married couples in violation of an aiding-and-abetting statute. Certainly the accessory
should have standing to assert that the offense which he is charged with assisting is not,
or cannot constitutionally be, a crime.
This case is more akin to Truax v. Raich, 239 U. S. 33, where an employee was permitted
to assert the rights of his employer; to Pierce v. Society of Sisters, 268 U. S. 510, where
the owners of private schools were entitled to assert the rights of potential pupils and
their parents, and to Barrows v. Jackson, 346 U. S. 249, where a white defendant, party to
a racially restrictive covenant, who was being sued for damages by the covenantors
because she had conveyed her property to Negroes, was allowed to raise the issue that
enforcement of the covenant violated the rights of prospective Negro purchasers to equal
protection, although no Negro was a party to the suit. And see Meyer v. Nebraska, 262 U.
S. 390; Adler v. Board of Education, 342 U. S. 485;NAACP v. Alabama, 357 U. S.
449; NAACP v. Button, 371 U. S. 415. The rights of husband and wife, pressed here, are
likely to be diluted or adversely affected unless those rights are considered in a suit
involving those who have this kind of confidential relation to them.
Coming to the merits, we are met with a wide range of questions that implicate the Due
Process Clause of the Fourteenth Amendment. Overtones of some arguments
Page 381 U. S. 482
suggest that Lochner v. New York, 198 U. S. 45, should be our guide. But we decline that
invitation, as we did in West Coast Hotel Co. v. Parrish, 300 U. S. 379; Olsen v.
Nebraska, 313 U. S. 236; Lincoln Union v. Northwestern Co., 335 U. S. 525;Williamson
v. Lee Optical Co., 348 U. S. 483; Giboney v. Empire Storage Co., 336 U. S. 490. We do
not sit as a super-legislature to determine the wisdom, need, and propriety of laws that
touch economic problems, business affairs, or social conditions. This law, however,
operates directly on an intimate relation of husband and wife and their physician's role in
one aspect of that relation.
The association of people is not mentioned in the Constitution nor in the Bill of Rights.
The right to educate a child in a school of the parents' choice -- whether public or private
or parochial -- is also not mentioned. Nor is the right to study any particular subject or
any foreign language. Yet the First Amendment has been construed to include certain of
those rights.
By Pierce v. Society of Sisters, supra, the right to educate one's children as one chooses is
made applicable to the States by the force of the First and Fourteenth Amendments.
By Meyer v. Nebraska, supra, the same dignity is given the right to study the German
language in a private school. In other words, the State may not, consistently with the
spirit of the First Amendment, contract the spectrum of available knowledge. The right of
freedom of speech and press includes not only the right to utter or to print, but the right to
distribute, the right to receive, the right to read (Martin v. Struthers, 319 U. S. 141, 319
U. S. 143) and freedom of inquiry, freedom of thought, and freedom to teach (see
Wiemann v. Updegraff, 344 U. S. 183, 344 U. S. 195) -- indeed, the freedom of the entire
university community. Sweezy v. New Hampshire, 354 U. S. 234, 354 U. S. 249-250, 354
U. S. 261-263; Barenblatt v. United States, 360 U. S. 109, 360 U. S. 112; Baggett v.
Bullitt, 377 U. S. 360, 377 U. S. 369. Without
Page 381 U. S. 483
those peripheral rights, the specific rights would be less secure. And so we reaffirm the
principle of the Pierce and the Meyer cases.
In NAACP v. Alabama, 357 U. S. 449, 357 U. S. 462 we protected the "freedom to
associate and privacy in one's associations," noting that freedom of association was a
peripheral First Amendment right. Disclosure of membership lists of a constitutionally
valid association, we held, was invalid
"as entailing the likelihood of a substantial restraint upon the exercise by petitioner's
members of their right to freedom of association."
Ibid. In other words, the First Amendment has a penumbra where privacy is protected
from governmental intrusion. In like context, we have protected forms of "association"
that are not political in the customary sense, but pertain to the social, legal, and economic
benefit of the members. NAACP v. Button, 371 U. S. 415, 371 U. S. 430-431. In Schware
v. Board of Bar Examiners, 353 U. S. 232, we held it not permissible to bar a lawyer
from practice because he had once been a member of the Communist Party. The man's
"association with that Party" was not shown to be "anything more than a political faith in
a political party" (id. at 353 U. S. 244), and was not action of a kind proving bad moral
character. Id. at 353 U. S. 245-246.
Those cases involved more than the "right of assembly" -- a right that extends to all,
irrespective of their race or ideology. De Jonge v. Oregon, 299 U. S. 353. The right of
"association," like the right of belief (Board of Education v. Barnette, 319 U. S. 624), is
more than the right to attend a meeting; it includes the right to express one's attitudes or
philosophies by membership in a group or by affiliation with it or by other lawful means.
Association in that context is a form of expression of opinion, and, while it is not
expressly included in the First Amendment, its existence is necessary in making the
express guarantees fully meaningful.
Page 381 U. S. 484
The foregoing cases suggest that specific guarantees in the Bill of Rights have
penumbras, formed by emanations from those guarantees that help give them life and
substance. See Poe v. Ullman, 367 U. S. 497, 367 U. S. 516-522 (dissenting opinion).
Various guarantees create zones of privacy. The right of association contained in the
penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its
prohibition against the quartering of soldiers "in any house" in time of peace without the
consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly
affirms the "right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." The Fifth Amendment, in its Self-
Incrimination Clause, enables the citizen to create a zone of privacy which government
may not force him to surrender to his detriment. The Ninth Amendment provides: "The
enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people."
The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U. S.
616, 116 U. S. 630, as protection against all governmental invasions "of the sanctity of a
man's home and the privacies of life." * We recently referred
Page 381 U. S. 485
in Mapp v. Ohio, 367 U. S. 643, 367 U. S. 656, to the Fourth Amendment as creating a
"right to privacy, no less important than any other right carefully an particularly reserved
to the people." See Beaney, The Constitutional Right to Privacy, 1962 Sup.Ct.Rev. 212;
Griswold, The Right to be Let Alone, 55 Nw.U.L.Rev. 216 (1960).
We have had many controversies over these penumbral rights of "privacy and
repose."See, e.g., Breard v. Alexandria, 341 U. S. 622, 341 U. S. 626, 341 U. S.
644; Public Utilities Comm'n v. Pollak, 343 U. S. 451; Monroe v. Pape, 365 U. S.
167; Lanza v. New York, 370 U. S. 139; Frank v. Maryland, 359 U. S. 360; Skinner v.
Oklahoma, 316 U. S. 535, 316 U. S. 541. These cases bear witness that the right of
privacy which presses for recognition here is a legitimate one.
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."
NAACP v. Alabama, 377 U. S. 288, 377 U. S. 307. Would we allow the police to search
the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?
The
Page 381 U. S. 486
very idea is repulsive to the notions of privacy surrounding the marriage relationship.
We deal with a right of privacy older than the Bill of Rights -- older than our political
parties, older than our school system. Marriage is a coming together for better or for
worse, hopefully enduring, and intimate to the degree of being sacred. It is an association
that promotes a way of life, not causes; a harmony in living, not political faiths; a
bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a
purpose as any involved in our prior decisions.
Reversed.
* The Court said in full about this right of privacy:
"The principles laid down in this opinion [by Lord Camden in Entick v. Carrington, 19
How.St.Tr. 1029] affect the very essence of constitutional liberty and security. They
reach farther than the concrete form of the case then before the court, with its
adventitious circumstances; they apply to all invasions on the part of the government and
its employes of the sanctity of a man's home and the privacies of life. It is not the
breaking of his doors, and the rummaging of his drawers, that constitutes the essence of
the offence; but it is the invasion of his indefeasible right of personal security, personal
liberty and private property, where that right has never been forfeited by his conviction of
some public offence -- it is the invasion of this sacred right which underlies and
constitutes the essence of Lord Camden's judgment. Breaking into a house and opening
boxes and drawers are circumstances of aggravation; but any forcible and compulsory
extortion of a man's own testimony or of his private papers to be used as evidence to
convict him of crime or to forfeit his goods is within the condemnation of that judgment.
In this regard, the Fourth and Fifth Amendments run almost into each other."
116 U.S. at 116 U. S. 630.
MR. JUSTICE GOLDBERG, whom THE CHIEF JUSTICE and MR. JUSTICE
BRENNAN join, concurring.
I agree with the Court that Connecticut's birth control law unconstitutionally intrudes
upon the right of marital privacy, and I join in its opinion and judgment. Although I have
not accepted the view that "due process," as used in the Fourteenth Amendment,
incorporates all of the first eight Amendments (see my concurring opinion in Pointer v.
Texas, 380 U. S. 400, 380 U. S. 410, and the dissenting opinion of MR. JUSTICE
BRENNAN in Cohen v. Hurley, 366 U. S. 117, 366 U. S. 154), I do agree that the
concept of liberty protects those personal rights that are fundamental, and is not confined
to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not
so restricted, and that it embraces the right of marital privacy, though that right is not
mentioned explicitly in the Constitution, [Footnote 1] is supported both by numerous
Page 381 U. S. 487
decisions of this Court, referred to in the Court's opinion, and by the language and history
of the Ninth Amendment. In reaching the conclusion that the right of marital privacy is
protected as being within the protected penumbra of specific guarantees of the Bill of
Rights, the Court refers to the Ninth Amendment, ante at 381 U. S. 484. I add these
words to emphasize the relevance of that Amendment to the Court's holding.
The Court stated many years ago that the Due Process Clause protects those liberties that
are "so rooted in the traditions and conscience of our people as to be ranked as
fundamental." Snyder v. Massachusetts, 291 U. S. 7, 291 U. S. 105. In Gitlow v. New
York, 268 U. S. 652, 268 U. S. 666, the Court said:
"For present purposes, we may and do assume that freedom of speech and of the press --
which are protected by the First Amendment from abridgment by Congress -- are among
the fundamental personal rights and 'liberties' protected by the due process clause of the
Fourteenth Amendment from impairment by the States."
(Emphasis added.)
Page 381 U. S. 488
And, in Meyer v. Nebraska, 262 U. S. 390, 262 U. S. 399, the Court, referring to the
Fourteenth Amendment, stated:
"While this Court has not attempted to define with exactness the liberty thus guaranteed,
the term has received much consideration, and some of the included things have been
definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but
also [for example,] the right . . . to marry, establish a home and bring up children. . . ."
This Court, in a series of decisions, has held that the Fourteenth Amendment absorbs and
applies to the States those specifics of the first eight amendments which express
fundamental personal rights. [Footnote 2] The language and history of the Ninth
Amendment reveal that the Framers of the Constitution believed that there are additional
fundamental rights, protected from governmental infringement, which exist alongside
those fundamental rights specifically mentioned in the first eight constitutional
amendments. The Ninth Amendment reads, "The enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others retained by the people."
The Amendment is almost entirely the work of James Madison. It was introduced in
Congress by him, and passed the House and Senate with little or no debate and virtually
no change in language. It was proffered to quiet expressed fears that a bill of specifically
enumerated rights [Footnote 3] could not be sufficiently broad to cover all essential
Page 381 U. S. 489
rights, and that the specific mention of certain rights would be interpreted as a denial that
others were protected. [Footnote 4]
In presenting the proposed Amendment, Madison said:
"It has been objected also against a bill of rights that, by enumerating particular
exceptions to the grant of power, it would disparage those rights which were not placed in
that enumeration, and it might follow, by implication, that those rights which were not
singled out were intended to be assigned into the hands of the General Government, and
were consequently insecure. This is one of the most plausible arguments I have ever
heard urged against the admission of a bill of rights into this system, but I conceive that it
may be guarded against. I have attempted it, as gentlemen may see by turning to the
Page 381 U. S. 490
last clause of the fourth resolution [the Ninth Amendment]."
I Annals of Congress 439 (Gales and Seaton ed. 1834). Mr. Justice Story wrote of this
argument against a bill of rights and the meaning of the Ninth Amendment:
"In regard to . . . [a] suggestion, that the affirmance of certain rights might disparage
others, or might lead to argumentative implications in favor of other powers, it might be
sufficient to say that such a course of reasoning could never be sustained upon any solid
basis. . . . But a conclusive answer is that such an attempt may be interdicted (as it has
been) by a positive declaration in such a bill of rights that the enumeration of certain
rights shall not be construed to deny or disparage others retained by the people."
II Story, Commentaries on the Constitution of the United States 626-627 (5th ed. 1891).
He further stated, referring to the Ninth Amendment:
"This clause was manifestly introduced to prevent any perverse or ingenious
misapplication of the well known maxim that an affirmation in particular cases implies a
negation in all others, and, e converso, that a negation in particular cases implies an
affirmation in all others."
Id. at 651. These statements of Madison and Story make clear that the Framers did not
intend that the first eight amendments be construed to exhaust the basic and fundamental
rights which the Constitution guaranteed to the people. [Footnote 5]
While this Court has had little occasion to interpret the Ninth Amendment, [Footnote 6]
"[i]t cannot be presumed that any
Page 381 U. S. 491
clause in the constitution is intended to be without effect." Marbury v. Madison, 1 Cranch
137, 5 U. S. 174. In interpreting the Constitution, "real effect should be given to all the
words it uses." Myers v. United States, 272 U. S. 52, 272 U. S. 151. The Ninth
Amendment to the Constitution may be regarded by some as a recent discovery, and may
be forgotten by others, but, since 1791, it has been a basic part of the Constitution which
we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted
in our society as the right of privacy in marriage may be infringed because that right is
not guaranteed in so many words by the first eight amendments to the Constitution is to
ignore the Ninth Amendment, and to give it no effect whatsoever. Moreover, a judicial
construction that this fundamental right is not protected by the Constitution because it is
not mentioned in explicit terms by one of the first eight amendments or elsewhere in the
Constitution would violate the Ninth Amendment, which specifically states that
Page 381 U. S. 492
"[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people." (Emphasis added.)
A dissenting opinion suggests that my interpretation of the Ninth Amendment somehow
"broaden[s] the powers of this Court." Post at 381 U. S. 520. With all due respect, I
believe that it misses the import of what I am saying. I do not take the position of my
Brother BLACK in his dissent in Adamson v. California, 332 U. S. 46,332 U. S. 68, that
the entire Bill of Rights is incorporated in the Fourteenth Amendment, and I do not mean
to imply that the Ninth Amendment is applied against the States by the Fourteenth. Nor
do I mean to state that the Ninth Amendment constitutes an independent source of rights
protected from infringement by either the States or the Federal Government. Rather, the
Ninth Amendment shows a belief of the Constitution's authors that fundamental rights
exist that are not expressly enumerated in the first eight amendments, and an intent that
the list of rights included there not be deemed exhaustive. As any student of this Court's
opinions knows, this Court has held, often unanimously, that the Fifth and Fourteenth
Amendments protect certain fundamental personal liberties from abridgment by the
Federal Government or the States. See, e.g., Bolling v. Sharpe, 347 U. S. 497; Aptheker v.
Secretary of State, 378 U. S. 500; Kent v. Dulles, 357 U. S. 116, Cantwell v.
Connecticut, 310 U. S. 296;NAACP v. Alabama, 357 U. S. 449; Gideon v.
Wainwright, 372 U. S. 335; New York Times Co. v. Sullivan, 376 U. S. 254. The Ninth
Amendment simply shows the intent of the Constitution's authors that other fundamental
personal rights should not be denied such protection or disparaged in any other way
simply because they are not specifically listed in the first eight constitutional
amendments. I do not see how this broadens the authority
Page 381 U. S. 493
of the Court; rather it serves to support what this Court has been doing in protecting
fundamental rights.
Nor am I turning somersaults with history in arguing that the Ninth Amendment is
relevant in a case dealing with a State's infringement of a fundamental right. While the
Ninth Amendment -- and indeed the entire Bill of Rights -- originally concerned
restrictions upon federal power, the subsequently enacted Fourteenth Amendment
prohibits the States as well from abridging fundamental personal liberties. And the Ninth
Amendment, in indicating that not all such liberties are specifically mentioned in the first
eight amendments, is surely relevant in showing the existence of other fundamental
personal rights, now protected from state, as well as federal, infringement. In sum, the
Ninth Amendment simply lends strong support to the view that the "liberty" protected by
the Fifth and Fourteenth Amendments from infringement by the Federal Government or
the States is not restricted to rights specifically mentioned in the first eight
amendments. Cf. United Public Workers v. Mitchell, 330 U. S. 75, 330 U. S. 94-95.
In determining which rights are fundamental, judges are not left at large to decide cases
in light of their personal and private notions. Rather, they must look to the "traditions and
[collective] conscience of our people" to determine whether a principle is "so rooted
[there] . . . as to be ranked as fundamental." Snyder v. Massachusetts, 291 U. S. 97,291 U.
S. 105. The inquiry is whether a right involved
"is of such a character that it cannot be denied without violating those 'fundamental
principles of liberty and justice which lie at the base of all our civil and political
institutions.' . . ."
Powell v. Alabama, 287 U. S. 45, 287 U. S. 67. "Liberty" also "gains content from the
emanations of . . . specific [constitutional] guarantees," and "from experience with the
requirements of a free society." Poe
Page 381 U. S. 494
v. Ullman, 367 U. S. 497, 367 U. S. 517 (dissenting opinion of MR. JUSTICE
DOUGLAS). [Footnote 7]
I agree fully with the Court that, applying these tests, the right of privacy is a
fundamental personal right, emanating "from the totality of the constitutional scheme
under which we live." Id. at 367 U. S. 521. Mr. Justice Brandeis, dissenting in Olmstead
v. United States, 277 U. S. 438, 277 U. S. 478, comprehensively summarized the
principles underlying the Constitution's guarantees of privacy:
"The protection guaranteed by the [Fourth and Fifth] Amendments is much broader in
scope. The makers of our Constitution undertook to secure conditions favorable to the
pursuit of happiness. They recognized the significance of man's spiritual nature of his
feelings and of his intellect. They knew that only a part of the pain, pleasure and
satisfactions of life are to be found in material things. They sought to protect Americans
in their beliefs, their thoughts, their emotions and their sensations. They conferred, as
against the Government, the right to be let alone -- the most comprehensive of rights and
the right most valued by civilized men. "
Page 381 U. S. 495
The Connecticut statutes here involved deal with a particularly important and sensitive
area of privacy -- that of the marital relation and the marital home. This Court recognized
in Meyer v. Nebraska, supra, that the right "to marry, establish a home and bring up
children" was an essential part of the liberty guaranteed by the Fourteenth Amendment.
262 U.S. at 262 U. S. 399. In Pierce v. Society of Sisters, 268 U. S. 510, the Court held
unconstitutional an Oregon Act which forbade parents from sending their children to
private schools because such an act "unreasonably interferes with the liberty of parents
and guardians to direct the upbringing and education of children under their control." 268
U.S. at 268 U. S. 534-535. As this Court said in Prince v. Massachusetts,321 U. S. 158,
at 321 U. S. 166, the Meyer and Pierce decisions "have respected the private realm of
family life which the state cannot enter."
I agree with MR. JUSTICE HARLAN's statement in his dissenting opinion in Poe v.
Ullman, 367 U. S. 497, 367 U. S. 551-552:
"Certainly the safeguarding of the home does not follow merely from the sanctity of
property rights. The home derives its preeminence as the seat of family life. And the
integrity of that life is something so fundamental that it has been found to draw to its
protection the principles of more than one explicitly granted Constitutional right. . . . Of
this whole 'private realm of family life,' it is difficult to imagine what is more private or
more intimate than a husband and wife's marital relations."
The entire fabric of the Constitution and the purposes that clearly underlie its specific
guarantees demonstrate that the rights to marital privacy and to marry and raise a family
are of similar order and magnitude as the fundamental rights specifically protected.
Although the Constitution does not speak in so many words of the right of privacy in
marriage, I cannot believe that it offers these fundamental rights no protection. The fact
that no particular provision of the Constitution
Page 381 U. S. 496
explicitly forbids the State from disrupting the traditional relation of the family -- a
relation as old and as fundamental as our entire civilization -- surely does not show that
the Government was meant to have the power to do so. Rather, as the Ninth Amendment
expressly recognizes, there are fundamental personal rights such as this one, which are
protected from abridgment by the Government, though not specifically mentioned in the
Constitution.
My Brother STEWART, while characterizing the Connecticut birth control law as "an
uncommonly silly law," post at 381 U. S. 527, would nevertheless let it stand on the
ground that it is not for the courts to "substitute their social and economic beliefs for the
judgment of legislative bodies, who are elected to pass laws.'" Post at 381 U. S. 528.
Elsewhere, I have stated that,
"[w]hile I quite agree with Mr. Justice Brandeis that . . . 'a . . . State may . . . serve as a
laboratory, and try novel social and economic experiments,' New State Ice Co. v.
Liebmann, 285 U. S. 262, 285 U. S. 280, 285 U. S. 311 (dissenting opinion), I do not
believe that this includes the power to experiment with the fundamental liberties of
citizens. . . . [Footnote 8]"
The vice of the dissenters' views is that it would permit such experimentation by the
States in the area of the fundamental personal rights of its citizens. I cannot agree that the
Constitution grants such power either to the States or to the Federal Government.
The logic of the dissents would sanction federal or state legislation that seems to me even
more plainly unconstitutional than the statute before us. Surely the Government, absent a
showing of a compelling subordinating state interest, could not decree that all husbands
and wives must be sterilized after two children have been born
Page 381 U. S. 497
to them. Yet, by their reasoning, such an invasion of marital privacy would not be subject
to constitutional challenge, because, while it might be "silly," no provision of the
Constitution specifically prevents the Government from curtailing the marital right to
bear children and raise a family. While it may shock some of my Brethren that the Court
today holds that the Constitution protects the right of marital privacy, in my view, it is far
more shocking to believe that the personal liberty guaranteed by the Constitution does not
include protection against such totalitarian limitation of family size, which is at complete
variance with our constitutional concepts. Yet if, upon a showing of a slender basis of
rationality, a law outlawing voluntary birth control by married persons is valid, then, by
the same reasoning, a law requiring compulsory birth control also would seem to be
valid. In my view, however, both types of law would unjustifiably intrude upon rights of
marital privacy which are constitutionally protected.
In a long series of cases, this Court has held that, where fundamental personal liberties
are involved, they may not be abridged by the States simply on a showing that a
regulatory statute has some rational relationship to the effectuation of a proper state
purpose.
"Where there is a significant encroachment upon personal liberty, the State may prevail
only upon showing a subordinating interest which is compelling,"
Bates v. Little Rock, 361 U. S. 516, 361 U. S. 524. The law must be shown "necessary,
and not merely rationally related, to the accomplishment of a permissible state
policy."McLaughlin v. Florida, 379 U. S. 184, 379 U. S. 196. See Schneider v.
Irvington, 308 U. S. 147, 308 U. S. 161.
Although the Connecticut birth control law obviously encroaches upon a fundamental
personal liberty, the State does not show that the law serves any "subordinating [state]
interest which is compelling," or that it is "necessary
Page 381 U. S. 498
. . . to the accomplishment of a permissible state policy." The State, at most, argues that
there is some rational relation between this statute and what is admittedly a legitimate
subject of state concern -- the discouraging of extramarital relations. It says that
preventing the use of birth control devices by married persons helps prevent the
indulgence by some in such extramarital relations. The rationality of this justification is
dubious, particularly in light of the admitted widespread availability to all persons in the
State of Connecticut. unmarried as well as married, of birth control devices for the
prevention of disease, as distinguished from the prevention of conception, see Tileston v.
Ullman, 129 Conn. 84, 26 A.2d 582. But, in any event, it is clear that the state interest in
safeguarding marital fidelity can be served by a more discriminately tailored statute
which does not, like the present one, sweep unnecessarily broadly, reaching far beyond
the evil sought to be dealt with and intruding upon the privacy of all married couples. See
Aptheker v. Secretary of State, 378 U. S. 500, 378 U. S. 514; NAACP v. Alabama, 377 U.
S. 288, 377 U. S. 307-308; McLaughlin v. Florida, supra, at 379 U. S. 196. Here, as
elsewhere, "[p]recision of regulation must be the touchstone in an area so closely
touching our most precious freedoms." NAACP v. Button, 371 U. S. 415, 371 U. S. 438.
The State of Connecticut does have statutes, the constitutionality of which is beyond
doubt, which prohibit adultery and fornication. See Conn.Gen.Stat. 53-218, 53-219 et
seq. These statutes demonstrate that means for achieving the same basic purpose of
protecting marital fidelity are available to Connecticut without the need to "invade the
area of protected freedoms." NAACP v. Alabama, supra, at 377 U. S. 307.See
McLaughlin v. Florida, supra, at 379 U. S. 196.
Finally, it should be said of the Court's holding today that it in no way interferes with a
State's proper regulation
Page 381 U. S. 499
of sexual promiscuity or misconduct. As my Brother HARLAN so well stated in his
dissenting opinion in Poe v. Ullman, supra, at 367 U. S. 553.
"Adultery, homosexuality and the like are sexual intimacies which the State forbids . . . ,
but the intimacy of husband and wife is necessarily an essential and accepted feature of
the institution of marriage, an institution which the State not only must allow, but which,
always and in every age, it has fostered and protected. It is one thing when the State
exerts its power either to forbid extramarital sexuality . . . or to say who may marry, but it
is quite another when, having acknowledged a marriage and the intimacies inherent in it,
it undertakes to regulate by means of the criminal law the details of that intimacy."
In sum, I believe that the right of privacy in the marital relation is fundamental and basic
-- a personal right "retained by the people" within the meaning of the Ninth Amendment.
Connecticut cannot constitutionally abridge this fundamental right, which is protected by
the Fourteenth Amendment from infringement by the States. I agree with the Court that
petitioners' convictions must therefore be reversed.
[Footnote 1]
My Brother STEWART dissents on the ground that he
"can find no . . . general right of privacy in the Bill of Rights, in any other part of the
Constitution, or in any case ever before decided by this Court."
Post at 381 U. S. 530. He would require a more explicit guarantee than the one which the
Court derives from several constitutional amendments. This Court, however, has never
held that the Bill of Rights or the Fourteenth Amendment protects only those rights that
the Constitution specifically mentions by name. See, e.g., Bolling v. Sharpe,347 U. S.
497; Aptheker v. Secretary of State, 378 U. S. 500; Kent v. Dulles, 357 U. S.
116; Carrington v. Rash, 380 U. S. 89, 380 U. S. 96; Schware v. Board of Bar
Examiners, 353 U. S. 232; NAACP v. Alabama, 360 U. S. 240; Pierce v. Society of
Sisters, 268 U. S. 510; Meyer v. Nebraska, 262 U. S. 390. To the contrary, this Court, for
example, in Bolling v. Sharpe, supra, while recognizing that the Fifth Amendment does
not contain the "explicit safeguard" of an equal protection clause, id. at 347 U. S. 499,
nevertheless derived an equal protection principle from that Amendment's Due Process
Clause. And in Schware v. Board of Bar Examiners, supra, the Court held that the
Fourteenth Amendment protects from arbitrary state action the right to pursue an
occupation, such as the practice of law.
[Footnote 2]
See, e.g., Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226; Gitlow v. New York, supra;
Cantwell v. Connecticut, 310 U. S. 296; Wolf v. Colorado, 338 U. S. 25;Robinson v.
California, 370 U. S. 660; Gideon v. Wainwright, 372 U. S. 335; Malloy v. Hogan, 378
U. S. 1; Pointer v. Texas, supra; Griffin v. California, 380 U. S. 609.
[Footnote 3]
Madison himself had previously pointed out the dangers of inaccuracy resulting from the
fact that "no language is so copious as to supply words and phrases for every complex
idea." The Federalist, No. 37 (Cooke ed.1961) at 236.
[Footnote 4]
Alexander Hamilton was opposed to a bill of rights on the ground that it was
unnecessary, because the Federal Government was a government of delegated powers,
and it was not granted the power to intrude upon fundamental personal rights. The
Federalist, No. 84 (Cooke ed.1961), at 578-579. He also argued,
"I go further, and affirm that bills of rights, in the sense and in the extent in which they
are contended for, are not only unnecessary in the proposed constitution, but would even
be dangerous. They would contain various exceptions to powers which are not granted,
and, on this very account, would afford a colourable pretext to claim more than were
granted. For why declare that things shall not be done which there is no power to do?
Why, for instance, should it be said that the liberty of the press shall not be restrained
when no power is given by which restrictions may be imposed? I will not contend that
such a provision would confer a regulating power; but it is evident that it would furnish,
to men disposed to usurp, a plausible pretence for claiming that power."
Id. at 579. The Ninth Amendment, and the Tenth Amendment, which provides,
The powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people,
were apparently also designed in part to meet the above-quoted argument of Hamilton.
[Footnote 5]
The Tenth Amendment similarly made clear that the States and the people retained all
those powers not expressly delegated to the Federal Government.
[Footnote 6]
This Amendment has been referred to as "The Forgotten Ninth Amendment," in a book
with that title by Bennett B. Patterson (1955). Other commentary on the Ninth
Amendment includes Redlich, Are There "Certain Rights . . . Retained by the People"?
37 N.Y.U.L.Rev. 787 (1962), and Kelsey, The Ninth Amendment of the Federal
Constitution, 11 Ind.L.J. 309 (1936). As far as I am aware, until today, this Court has
referred to the Ninth Amendment only in United Public Workers v. Mitchell, 330 U. S.
75, 330 U. S. 94-95; Tennessee Electric Power Co. v. TVA, 306 U. S. 118, 306 U. S. 143-
144, and Ashwander v. TVA, 297 U. S. 288, 297 U. S. 330-331. See also Calder v. Bull, 3
Dall. 386, 3 U. S. 388; Loan Assn. v. Topeka, 20 Wall. 655, 87 U. S. 662-663.
In United Public Workers v. Mitchell, supra, at 330 U. S. 94-95, the Court stated:
"We accept appellants' contention that the nature of political rights reserved to the people
by the Ninth and Tenth Amendments [is] involved. The right claimed as inviolate may be
stated as the right of a citizen to act as a party official or worker to further his own
political views. Thus, we have a measure of interference by the Hatch Act and the Rules
with what otherwise would be the freedom of the civil servant under the First, Ninth and
Tenth Amendments. And, if we look upon due process as a guarantee of freedom in those
fields, there is a corresponding impairment of that right under the Fifth Amendment."
[Footnote 7]
In light of the tests enunciated in these cases, it cannot be said that a judge's responsibility
to determine whether a right is basic and fundamental in this sense vests him with
unrestricted personal discretion. In fact, a hesitancy to allow too broad a discretion was a
substantial reason leading me to conclude, in Pointer v. Texas, supra,at 380 U. S. 413-
414, that those rights absorbed by the Fourteenth Amendment and applied to the States
because they are fundamental apply with equal force and to the same extent against both
federal and state governments. In Pointer, I said that the contrary view would require
"this Court to make the extremely subjective and excessively discretionary determination
as to whether a practice, forbidden the Federal Government by a fundamental
constitutional guarantee, is, as viewed in the factual circumstances surrounding each
individual case, sufficiently repugnant to the notion of due process as to be forbidden the
States."
Id. at 380 U. S. 413.
[Footnote 8]
Pointer v. Texas, supra at 380 U. S. 413. See also the discussion of my Brother
DOUGLAS, Poe v. Ullman, supra, at 367 U. S. 517-518 (dissenting opinion).
MR. JUSTICE HARLAN, concurring in the judgment.
I fully agree with the judgment of reversal, but find myself unable to join the Court's
opinion. The reason is that it seems to me to evince an approach to this case very much
like that taken by my Brothers BLACK and STEWART in dissent, namely: the Due
Process Clause of the Fourteenth Amendment does not touch this Connecticut statute
unless the enactment is found to violate some right assured by the letter or penumbra of
the Bill of Rights.
Page 381 U. S. 500
In other words, what I find implicit in the Court's opinion is that the "incorporation"
doctrine may be used to restrict the reach of Fourteenth Amendment Due Process. For
me, this is just as unacceptable constitutional doctrine as is the use of the "incorporation"
approach to impose upon the States all the requirements of the Bill of Rights as found in
the provisions of the first eight amendments and in the decisions of this Court interpreting
them. See, e.g., my concurring opinions in Pointer v. Texas, 380 U. S. 400, 380 U. S. 408,
and Griffin v. California, 380 U. S. 609, 380 U. S. 615, and my dissenting opinion in Poe
v. Ullman, 367 U. S. 497, 367 U. S. 522, at pp. 381 U. S. 539-545.
In my view, the proper constitutional inquiry in this case is whether this Connecticut
statute infringes the Due Process Clause of the Fourteenth Amendment because the
enactment violates basic values "implicit in the concept of ordered liberty," Palko v.
Connecticut, 302 U. S. 319, 302 U. S. 325. For reasons stated at length in my dissenting
opinion in Poe v. Ullman, supra, I believe that it does. While the relevant inquiry may be
aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent
on them or any of their radiations. The Due Process Clause of the Fourteenth Amendment
stands, in my opinion, on its own bottom.
A further observation seems in order respecting the justification of my Brothers BLACK
and STEWART for their "incorporation" approach to this case. Their approach does not
rest on historical reasons, which are, of course, wholly lacking (see Fairman, Does the
Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2
Stan.L.Rev. 5 (1949)), but on the thesis that, by limiting the content of the Due Process
Clause of the Fourteenth Amendment to the protection of rights which can be found
elsewhere in the Constitution, in this instance, in the Bill of Rights, judges will thus be
confined to "interpretation" of specific constitutional
Page 381 U. S. 501
provisions, and will thereby be restrained from introducing their own notions of
constitutional right and wrong into the "vague contours of the Due Process
Clause."Rochin v. California, 342 U. S. 165, 342 U. S. 170. While I could not more
heartily agree that judicial "self-restraint" is an indispensable ingredient of sound
constitutional adjudication, I do submit that the formula suggested for achieving it is
more hollow than real. "Specific" provisions of the Constitution, no less than "due
process," lend themselves as readily to "personal" interpretations by judges whose
constitutional outlook is simply to keep the Constitution in supposed "tune with the
times" (post, p.381 U. S. 522). Need one go further than to recall last Term's
reapportionment cases,Wesberry v. Sanders, 376 U. S. 1, and Reynolds v. Sims, 377 U. S.
533, where a majority of the Court "interpreted" "by the People" (Art. I, 2) and "equal
protection" (Amdt. 14) to command "one person, one vote," an interpretation that was
made in the face of irrefutable and still unanswered history to the contrary? See my
dissenting opinions in those cases, 376 U.S. at 376 U. S. 20; 377 U.S. at 377 U. S. 589.
Judicial self-restraint will not, I suggest, be brought about in the "due process" area by
the historically unfounded incorporation formula long advanced by my Brother BLACK,
and now in part espoused by my Brother STEWART. It will be achieved in this area, as
in other constitutional areas, only by continual insistence upon respect for the teachings
of history, solid recognition of the basic values that underlie our society, and wise
appreciation of the great roles that the doctrines of federalism and separation of powers
have played in establishing and preserving American freedoms. See Adamson v.
California, 332 U. S. 46, 332 U. S. 59 (Mr. Justice Frankfurter, concurring). Adherence
to these principles will not, of course, obviate all constitutional differences of opinion
among judges, nor should it. Their continued recognition
Page 381 U. S. 502
will, however, go farther toward keeping most judges from roaming at large in the
constitutional field than will the interpolation into the Constitution of an artificial and
largely illusory restriction on the content of the Due Process Clause.*
* Indeed, my Brother BLACK, in arguing his thesis, is forced to lay aside a host of cases
in which the Court has recognized fundamental rights in the Fourteenth Amendment
without specific reliance upon the Bill of Rights. Post, p. 381 U. S. 512, n. 4.
MR. JUSTICE WHITE, concurring in the judgment.
In my view, this Connecticut law, as applied to married couples, deprives them of
"liberty" without due process of law, as that concept is used in the Fourteenth
Amendment. I therefore concur in the judgment of the Court reversing these convictions
under Connecticut's aiding and abetting statute.
It would be unduly repetitious, and belaboring the obvious, to expound on the impact of
this statute on the liberty guaranteed by the Fourteenth Amendment against arbitrary or
capricious denials or on the nature of this liberty. Suffice it to say that this is not the first
time this Court has had occasion to articulate that the liberty entitled to protection under
the Fourteenth Amendment includes the right "to marry, establish a home and bring up
children," Meyer v. Nebraska, 262 U. S. 390, 262 U. S. 399, and "the liberty . . . to direct
the upbringing and education of children," Pierce v. Society of Sisters, 268 U. S. 510, 268
U. S. 534-535, and that these are among "the basic civil rights of man." Skinner v.
Oklahoma, 316 U. S. 535, 316 U. S. 541. These decisions affirm that there is a "realm of
family life which the state cannot enter" without substantial justification. Prince v.
Massachusetts, 321 U. S. 158, 321 U. S. 166. Surely the right invoked in this case, to be
free of regulation of the intimacies of
Page 381 U. S. 503
the marriage relationship,
come[s] to this Court with a momentum for respect lacking when appeal is made to
liberties which derive merely from shifting economic arrangements.
Kovacs v. Cooper, 336 U. S. 77, 336 U. S. 95 (opinion of Frankfurter, J.).
The Connecticut anti-contraceptive statute deals rather substantially with this
relationship. For it forbids all married persons the right to use birth control devices,
regardless of whether their use is dictated by considerations of family planning, Trubek v.
Ullman, 147 Conn. 633, 165 A.2d 158, health, or indeed even of life itself. Buxton v.
Ullman, 147 Conn. 48, 156 A.2d 508. The anti-use statute, together with the general
aiding and abetting statute, prohibits doctors from affording advice to married persons on
proper and effective methods of birth control. Tileston v. Ullman, 129 Conn. 84, 26 A.2d
582. And the clear effect of these statutes, as enforced, is to deny disadvantaged citizens
of Connecticut, those without either adequate knowledge or resources to obtain private
counseling, access to medical assistance and up-to-date information in respect to proper
methods of birth control. State v. Nelson, 126 Conn. 412, 11 A.2d 856; State v.
Griswold, 151 Conn. 544, 200 A.2d 479. In my view, a statute with these effects bears a
substantial burden of justification when attacked under the Fourteenth Amendment. Yick
Wo v. Hopkins, 118 U. S. 356; Skinner v. Oklahoma, 316 U. S. 535;Schware v. Board of
Bar Examiners, 353 U. S. 232; McLaughlin v. Florida, 379 U. S. 184, 379 U. S. 192.
An examination of the justification offered, however, cannot be avoided by saying that
the Connecticut anti-use statute invades a protected area of privacy and association or
that it demeans the marriage relationship. The nature of the right invaded is pertinent, to
be sure, for statutes regulating sensitive areas of liberty do, under
Page 381 U. S. 504
the cases of this Court, require "strict scrutiny," Skinner v. Oklahoma, 316 U. S. 535,316
U. S. 541, and "must be viewed in the light of less drastic means for achieving the same
basic purpose." Shelton v. Tucker, 364 U. S. 479, 364 U. S. 488.
"Where there is a significant encroachment upon personal liberty, the State may prevail
only upon showing a subordinating interest which is compelling."
Bates v. Little Rock, 361 U. S. 516, 361 U. S. 524. See also McLaughlin v. Florida, 379
U. S. 184. But such statutes, if reasonably necessary for the effectuation of a legitimate
and substantial state interest, and not arbitrary or capricious in application, are not invalid
under the Due Process Clause. Zemel v. Rusk, 381 U. S. 1.*
Page 381 U. S. 505
As I read the opinions of the Connecticut courts and the argument of Connecticut in this
Court, the State claims but one justification for its anti-use statute. Cf. Allied Stores of
Ohio v. Bowers, 358 U. S. 522, 358 U. S. 530; Martin v. Walton, 368 U. S. 25, 368 U. S.
28 (DOUGLAS, J., dissenting). There is no serious contention that Connecticut thinks the
use of artificial or external methods of contraception immoral or unwise in itself, or that
the anti-use statute is founded upon any policy of promoting population expansion.
Rather, the statute is said to serve the State's policy against all forms of promiscuous or
illicit sexual relationships, be they premarital or extramarital, concededly a permissible
and legitimate legislative goal.
Without taking issue with the premise that the fear of conception operates as a deterrent
to such relationships in addition to the criminal proscriptions Connecticut has against
such conduct, I wholly fail to see how the ban on the use of contraceptives by married
couples in any way reinforces the State's ban on illicit sexual relationships. See Schware
v. Board of Bar Examiners, 353 U. S. 232, 353 U. S. 239. Connecticut does not bar the
importation or possession of contraceptive devices; they are not considered contraband
material under state law, State v. Certain Contraceptive Materials, 126 Conn. 428, 11
A.2d 863, and their availability in that State is not seriously disputed. The only way
Connecticut seeks to limit or control the availability of such devices is through its general
aiding and abetting statute, whose operation in this context has
Page 381 U. S. 506
been quite obviously ineffective, and whose most serious use has been against birth
control clinics rendering advice to married, rather than unmarried, persons. Cf. Yick Wo v.
Hopkins, 118 U. S. 356. Indeed, after over 80 years of the State's proscription of use, the
legality of the sale of such devices to prevent disease has never been expressly passed
upon, although it appears that sales have long occurred and have only infrequently been
challenged. This "undeviating policy . . . throughout all the long years . . . bespeaks more
than prosecutorial paralysis." Poe v. Ullman, 367 U. S. 497, 367 U. S. 502. Moreover, it
would appear that the sale of contraceptives to prevent disease is plainly legal under
Connecticut law.
In these circumstances, one is rather hard pressed to explain how the ban on use by
married persons in any way prevents use of such devices by persons engaging in illicit
sexual relations, and thereby contributes to the State's policy against such relationships.
Neither the state courts nor the State before the bar of this Court has tendered such an
explanation. It is purely fanciful to believe that the broad proscription on use facilitates
discovery of use by persons engaging in a prohibited relationship, or for some other
reason makes such use more unlikely, and thus can be supported by any sort of
administrative consideration. Perhaps the theory is that the flat ban on use prevents
married people from possessing contraceptives and, without the ready availability of such
devices for use in the marital relationship, there will be no or less temptation to use them
in extramarital ones. This reasoning rests on the premise that married people will comply
with the ban in regard to their marital relationship, notwithstanding total nonenforcement
in this context and apparent nonenforcibility, but will not comply with criminal statutes
prohibiting extramarital affairs and the anti-use statute in respect to illicit sexual
relationships, a premise whose validity has not been
Page 381 U. S. 507
demonstrated and whose intrinsic validity is not very evident. At most, the broad ban is
of marginal utility to the declared objective. A statute limiting its prohibition on use to
persons engaging in the prohibited relationship would serve the end posited by
Connecticut in the same way, and with the same effectiveness or ineffectiveness, as the
broad anti-use statute under attack in this case. I find nothing in this record justifying the
sweeping scope of this statute, with its telling effect on the freedoms of married persons,
and therefore conclude that it deprives such persons of liberty without due process of law.
* Dissenting opinions assert that the liberty guaranteed by the Due Process Clause is
limited to a guarantee against unduly vague statutes and against procedural unfairness at
trial. Under this view, the Court is without authority to ascertain whether a challenged
statute, or its application, has a permissible purpose, and whether the manner of
regulation bears a rational or justifying relationship to this purpose. A long line of cases
makes very clear that this has not been the view of this Court. Dent v. West Virginia, 129
U. S. 114; Jacobson v. Massachusetts, 197 U. S. 11; Douglas v. Noble, 261 U. S.
165; Meyer v. Nebraska, 262 U. S. 390; Pierce v. Society of Sisters,268 U. S.
510; Schware v. Board of Bar Examiners, 353 U. S. 232; Aptheker v. Secretary of
State, 378 U. S. 500; Zemel v. Rusk, 381 U. S. 1.
The traditional due process test was well articulated and applied in Schware v. Board of
Bar Examiners, supra, a case which placed no reliance on the specific guarantees of the
Bill of Rights.
"A State cannot exclude a person from the practice of law or from any other occupation
in a manner or for reasons that contravene the Due Process or Equal Protection Clause of
the Fourteenth Amendment. Dent v. West Virginia, 129 U. S. 114. Cf. Slochower v.
Board of Education, 350 U. S. 551; Wieman v. Updegraff, 344 U. S. 183. And see 60 U.
S. 19 How. 9, 60 U. S. 13. A State can require high standards of qualification, such as
good moral character or proficiency in its law, before it admits an applicant to the bar, but
any qualification must have a rational connection with the applicant's fitness or capacity
to practice law. Douglas v. Noble, 261 U. S. 165; Cummings v. Missouri, 4 Wall. 277, 71
U. S. 319-320. Cf. Nebbia v. New York, 291 U. S. 502. Obviously an applicant could not
be excluded merely because he was a Republican, or a Negro, or a member of a particular
church. Even in applying permissible standards, officers of a State cannot exclude an
applicant when there is no basis for their finding that he fails to meet these standards, or
when their action is invidiously discriminatory."
353 U.S. at 353 U. S. 238-239. Cf. Martin v. Walton, 368 U. S. 25, 368 U. S.
26(DOUGLAS, J., dissenting).
MR. JUSTICE BLACK, with whom MR. JUSTICE STEWART joins, dissenting.
I agree with my Brother STEWART's dissenting opinion. And, like him, I do not to any
extent whatever base my view that this Connecticut law is constitutional on a belief that
the law is wise, or that its policy is a good one. In order that there may be no room at all
to doubt why I vote as I do, I feel constrained to add that the law is every bit as offensive
to me as it is to my Brethren of the majority and my Brothers HARLAN, WHITE and
GOLDBERG, who, reciting reasons why it is offensive to them, hold it unconstitutional.
There is no single one of the graphic and eloquent strictures and criticisms fired at the
policy of this Connecticut law either by the Court's opinion or by those of my concurring
Brethren to which I cannot subscribe -- except their conclusion that the evil qualities they
see in the law make it unconstitutional.
Had the doctor defendant here, or even the nondoctor defendant, been convicted for
doing nothing more than expressing opinions to persons coming to the clinic that certain
contraceptive devices, medicines or practices would do them good and would be
desirable, or for telling people how devices could be used, I can think of no reasons at
this time why their expressions of views would not be
Page 381 U. S. 508
protected by the First and Fourteenth Amendments, which guarantee freedom of
speech. Cf. Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377
U. S. 1; NAACP v. Button, 371 U. S. 415. But speech is one thing; conduct and physical
activities are quite another. See, e.g., Cox v. Louisiana, 379 U. S. 536, 379 U. S. 554-
555; Cox v. Louisiana, 379 U. S. 559, 379 U. S. 563-564; id. 379 U. S. 575-584
(concurring opinion); Giboney v. Empire Storage & Ice Co., 336 U. S. 490; cf. Reynolds
v. United States, 98 U. S. 145, 98 U. S. 163-164. The two defendants here were active
participants in an organization which gave physical examinations to women, advised
them what kind of contraceptive devices or medicines would most likely be satisfactory
for them, and then supplied the devices themselves, all for a graduated scale of fees,
based on the family income. Thus, these defendants admittedly engaged with others in a
planned course of conduct to help people violate the Connecticut law. Merely because
some speech was used in carrying on that conduct -- just as, in ordinary life, some speech
accompanies most kinds of conduct -- we are not, in my view, justified in holding that the
First Amendment forbids the State to punish their conduct. Strongly as I desire to protect
all First Amendment freedoms, I am unable to stretch the Amendment so as to afford
protection to the conduct of these defendants in violating the Connecticut law. What
would be the constitutional fate of the law if hereafter applied to punish nothing but
speech is, as I have said, quite another matter. The Court talks about a constitutional
"right of privacy" as though there is some constitutional provision or provisions
forbidding any law ever to be passed which might abridge the "privacy" of individuals.
But there is not. There are, of course, guarantees in certain specific constitutional
provisions which are designed in part to protect privacy at certain times and places with
respect to certain activities. Such, for example, is the Fourth
Page 381 U. S. 509
Amendment's guarantee against "unreasonable searches and seizures." But I think it
belittles that Amendment to talk about it as though it protects nothing but "privacy." To
treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I
think any Bill of Rights provision should be given. The average man would very likely
not have his feelings soothed any more by having his property seized openly than by
having it seized privately and by stealth. He simply wants his property left alone. And a
person can be just as much, if not more, irritated, annoyed and injured by an
unceremonious public arrest by a policeman as he is by a seizure in the privacy of his
office or home.
One of the most effective ways of diluting or expanding a constitutionally guaranteed
right is to substitute for the crucial word or words of a constitutional guarantee another
word or words, more or less flexible and more or less restricted in meaning. This fact is
well illustrated by the use of the term "right of privacy" as a comprehensive substitute for
the Fourth Amendment's guarantee against "unreasonable searches and seizures."
"Privacy" is a broad, abstract and ambiguous concept which can easily be shrunken in
meaning but which can also, on the other hand, easily be interpreted as a constitutional
ban against many things other than searches and seizures. I have expressed the view
many times that First Amendment freedoms, for example, have suffered from a failure of
the courts to stick to the simple language of the First Amendment in construing it, instead
of invoking multitudes of words substituted for those the Framers used. See, e.g., New
York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 293 (concurring opinion); cases
collected in City of El Paso v. Simmons, 379 U. S. 497, 379 U. S. 517, n. 1 (dissenting
opinion); Black, The Bill of Rights, 35 N.Y.U.L.Rev. 865. For these reasons, I get
nowhere in this case by talk about a constitutional "right of privacy" as an emanation
from
Page 381 U. S. 510
one or more constitutional provisions. [Footnote 2/1] I like my privacy as well as the next
one, but I am nevertheless compelled to admit that government has a right to. invade it
unless prohibited by some specific constitutional provision. For these reasons, I cannot
agree with the Court's judgment and the reasons it gives for holding this Connecticut law
unconstitutional.
This brings me to the arguments made by my Brothers HARLAN, WHITE and
GOLDBERG for invalidating the Connecticut law. Brothers HARLAN [Footnote 2/2]
and WHITE would invalidate it by reliance on the Due Process Clause of the Fourteenth
Amendment, but Brother GOLDBERG, while agreeing with Brother HARLAN, relies
also on the Ninth Amendment. I have no doubt that the Connecticut law could be applied
in such a way as to abridge freedom of
Page 381 U. S. 511
speech and press, and therefore violate the First and Fourteenth Amendments. My
disagreement with the Court's opinion holding that there is such a violation here is a
narrow one, relating to the application of the First Amendment to the facts and
circumstances of this particular case. But my disagreement with Brothers HARLAN,
WHITE and GOLDBERG is more basic. I think that, if properly construed, neither the
Due Process Clause nor the Ninth Amendment, nor both together, could under any
circumstances be a proper basis for invalidating the Connecticut law. I discuss the due
process and Ninth Amendment arguments together because, on analysis, they turn out to
be the same thing -- merely using different words to claim for this Court and the federal
judiciary power to invalidate any legislative act which the judges find irrational,
unreasonable or offensive.
The due process argument which my Brothers HARLAN and WHITE adopt here is
based, as their opinions indicate, on the premise that this Court is vested with power to
invalidate all state laws that it considers to be arbitrary, capricious, unreasonable, or
oppressive, or on this Court's belief that a particular state law under scrutiny has no
"rational or justifying" purpose, or is offensive to a "sense of fairness and justice."
[Footnote 2/3] If these formulas based on "natural justice," or others which mean the
same thing, [Footnote 2/4] are to prevail, they require judges to determine
Page 381 U. S. 512
what is or is not constitutional on the basis of their own appraisal of what laws are unwise
or unnecessary. The power to make such decisions is, of course, that of a legislative
body. Surely it has to be admitted that no provision of the Constitution specifically gives
such blanket power to courts to exercise such a supervisory veto over the wisdom and
value of legislative policies and to hold unconstitutional those laws which they believe
unwise or dangerous. I readily admit that no legislative body, state or national, should
pass laws that can justly be given any
Page 381 U. S. 513
of the invidious labels invoked as constitutional excuses to strike down state laws. But
perhaps it is not too much to say that no legislative body ever does pass laws without
believing that they will accomplish a sane, rational, wise and justifiable purpose. While I
completely subscribe to the holding of Marbury v. Madison, 1 Cranch 137, and
subsequent cases, that our Court has constitutional power to strike down statutes, state or
federal, that violate commands of the Federal Constitution, I do not believe that we are
granted power by the Due Process Clause or any other constitutional provision or
provisions to measure constitutionality by our belief that legislation is arbitrary,
capricious or unreasonable, or accomplishes no justifiable purpose, or is offensive to our
own notions of "civilized standards of conduct." [Footnote 2/5] Such an appraisal of the
wisdom of legislation is an attribute of the power to make laws, not of the power to
interpret them. The use by federal courts of such a formula or doctrine or whatnot to veto
federal or state laws simply takes away from Congress and States the power to make laws
based on their own judgment of fairness and wisdom, and transfers that power to this
Court for ultimate determination -- a power which was specifically denied to federal
courts by the convention that framed the Constitution. [Footnote 2/6]
Page 381 U. S. 514
Of the cases on which my Brothers WHITE and GOLDBERG rely so heavily,
undoubtedly the reasoning of two of them supports their result here -- as would that of a
number of others which they do not bother to name, e.g.,
Page 381 U. S. 515
Lochner v. New York, 198 U. S. 45, Coppage v. Kansas, 236 U. S. 1, Jay Burns Baking
Co. v. Bryan, 264 U. S. 504, and Adkins v. Children's Hospital, 261 U. S. 525. The two
they do cite and quote from, Meyer v. Nebraska, 262 U. S. 390, and Pierce v. Society of
Sisters, 268 U. S. 510, were both decided in opinions by Mr. Justice McReynolds which
elaborated the same natural law due process philosophy found in Lochner v. New York,
supra, one of the cases on which he relied in Meyer, along with such other long-
discredited decisions as, e.g., Adams v. Tanner, 244 U. S. 590, and Adkins v. Children's
Hospital, supra. Meyer held unconstitutional, as an "arbitrary" and unreasonable
interference with the right of a teacher to carry on his occupation and of parents to hire
him, a
Page 381 U. S. 516
state law forbidding the teaching of modern foreign languages to young children in the
schools. [Footnote 2/7] And in Pierce, relying principally on Meyer, Mr. Justice
McReynolds said that a state law requiring that all children attend public schools
interfered unconstitutionally with the property rights of private school corporations
because it was an "arbitrary, unreasonable and unlawful interference" which threatened
"destruction of their business and property." 268 U.S. at 268 U. S. 536. Without
expressing an opinion as to whether either of those cases reached a correct result in light
of our later decisions applying the First Amendment to the States through the Fourteenth,
[Footnote 2/8] I merely point out that the reasoning stated in Meyer andPierce was the
same natural law due process philosophy which many later opinions repudiated, and
which I cannot accept. Brothers WHITE and GOLDBERG also cite other cases, such
as NAACP v. Button, 371 U. S. 415, Shelton v. Tucker, 364 U. S. 479, andSchneider v.
State, 308 U. S. 147, which held that States in regulating conduct could not, consistently
with the First Amendment as applied to them by the Fourteenth, pass unnecessarily broad
laws which might indirectly infringe on First Amendment freedoms. [Footnote
2/9] See Brotherhood of Railroad Trainmen v. Virginia ex rel.
Page 381 U. S. 517
Virginia State Bar, 377 U. S. 1, 377 U. S. 7-8. [Footnote 2/10] Brothers WHITE and
GOLDBERG now apparently would start from this requirement that laws be narrowly
drafted so as not to curtail free speech and assembly, and extend it limitlessly to require
States to justify any law restricting "liberty" as my Brethren define "liberty." This would
mean at the
Page 381 U. S. 518
very least, I suppose, that every state criminal statute -- since it must inevitably curtail
"liberty" to some extent -- would be suspect, and would have to be Justified to this Court.
[Footnote 2/11]
My Brother GOLDBERG has adopted the recent discovery [Footnote 2/12] that the Ninth
Amendment as well as the Due Process Clause can be used by this Court as authority to
strike down all state legislation which this Court thinks
Page 381 U. S. 519
violates "fundamental principles of liberty and justice," or is contrary to the "traditions
and [collective] conscience of our people." He also states, without proof satisfactory to
me, that, in making decisions on this basis, judges will not consider "their personal and
private notions." One may ask how they can avoid considering them. Our Court certainly
has no machinery with which to take a Gallup Poll. [Footnote 2/13] And the scientific
miracles of this age have not yet produced a gadget which the Court can use to determine
what traditions are rooted in the "[collective] conscience of our people." Moreover, one
would certainly have to look far beyond the language of the Ninth Amendment [Footnote
2/14] to find that the Framers vested in this Court any such awesome veto powers over
lawmaking, either by the States or by the Congress. Nor does anything in the history of
the Amendment offer any support for such a shocking doctrine. The whole history of the
adoption of the Constitution and Bill of Rights points the other way, and the very material
quoted by my Brother GOLDBERG shows that the Ninth Amendment was intended to
protect against the idea that, "by enumerating particular exceptions to the grant of power"
to the Federal Government, "those rights which were not singled out were intended to be
assigned into the hands of the General Government [the United States], and were
consequently
Page 381 U. S. 520
insecure." [Footnote 2/15] That Amendment was passed not to broaden the powers of this
Court or any other department of "the General Government," but, as every student of
history knows, to assure the people that the Constitution in all its provisions was intended
to limit the Federal Government to the powers granted expressly or by necessary
implication. If any broad, unlimited power to hold laws unconstitutional because they
offend what this Court conceives to be the "[collective] conscience of our people" is
vested in this Court by the Ninth Amendment, the Fourteenth Amendment, or any other
provision of the Constitution, it was not given by the Framers, but rather has been
bestowed on the Court by the Court. This fact is perhaps responsible for the peculiar
phenomenon that, for a period of a century and a half, no serious suggestion was ever
made that the Ninth Amendment, enacted to protect state powers against federal invasion,
could be used as a weapon of federal power to prevent state legislatures from passing
laws they consider appropriate to govern local affairs. Use of any such broad, unbounded
judicial authority would make of this Court's members a day-to-day constitutional
convention.
I repeat, so as not to be misunderstood, that this Court does have power, which it should
exercise, to hold laws unconstitutional where they are forbidden by the Federal
Constitution. My point is that there is no provision
Page 381 U. S. 521
of the Constitution which either expressly or impliedly vests power in this Court to sit as
a supervisory agency over acts of duly constituted legislative bodies and set aside their
laws because of the Court's belief that the legislative policies adopted are unreasonable,
unwise, arbitrary, capricious or irrational. The adoption of such a loose flexible.
uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will
amount to a great unconstitutional shift of power to the courts which I believe and am
constrained to say will be bad for the courts, and worse for the country. Subjecting
federal and state laws to such an unrestrained and unrestrainable judicial control as to the
wisdom of legislative enactments would, I fear, jeopardize the separation of
governmental powers that the Framers set up, and, at the same time, threaten to take away
much of the power of States to govern themselves which the Constitution plainly
intended them to have. [Footnote 2/16]
Page 381 U. S. 522
I realize that many good and able men have eloquently spoken and written, sometimes in
rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the
times. The idea is that the Constitution must be changed from time to time, and that this
Court is charged with a duty to make those changes. For myself, I must, with all
deference, reject that philosophy. The Constitution makers knew the need for change, and
provided for it. Amendments suggested by the people's elected representatives can be
submitted to the people or their selected agents for ratification. That method of change
was good for our Fathers, and, being somewhat old-fashioned, I must add it is good
enough for me. And so I cannot rely on the Due Process Clause or the Ninth Amendment
or any mysterious and uncertain natural law concept as a reason for striking down this
state law. The Due Process Clause, with an "arbitrary and capricious" or "shocking to the
conscience" formula, was liberally used by this Court to strike down economic legislation
in the early decades of this century, threatening, many people thought, the tranquility and
stability of the Nation. See, e.g., Lochner v. New York, 198 U. S. 45. That formula, based
on subjective considerations of "natural justice," is no less dangerous when used to
enforce this Court's views about personal rights than those about economic rights. I had
thought that we had laid that formula, as a means for striking down state legislation, to
rest once and for all in cases like West Coast Hotel Co. v. Parrish, 300 U. S. 379; Olsen
v. Nebraska ex rel. Western Reference & Bond Assn., 313 U. S. 236, and many other
Page 381 U. S. 523
opinions. [Footnote 2/17] See also Lochner v. New York, 198 U. S. 45, 198 U. S.
74(Holmes, J., dissenting).
In Ferguson v. Skrupa, 372 U. S. 726, 372 U. S. 730, this Court two years ago said, in an
opinion joined by all the Justices but one, [Footnote 2/18] that
"The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases -- that
due process authorizes courts to hold laws unconstitutional when they believe the
legislature has acted unwisely -- has long since been discarded. We have returned to the
original constitutional proposition that courts do not substitute their social and economic
beliefs for the judgment of legislative bodies, who are elected to pass laws."
And only six weeks ago, without even bothering to hear argument, this Court
overruledTyson & Brother v. Banton, 273 U. S. 418, which had held state laws regulating
ticket brokers to be a denial of due process of law. [Footnote 2/19] Gold
Page 381 U. S. 524
v. DiCarlo, 380 U. S. 520. I find April's holding hard to square with what my concurring
Brethren urge today. They would reinstate the Lochner, Coppage, Adkins, Burns line of
cases, cases from which this Court recoiled after the 1930's, and which had been, I
thought, totally discredited until now. Apparently my Brethren have less quarrel with
state economic regulations than former Justices of their persuasion had. But any
limitation upon their using the natural law due process philosophy to strike down any
state law, dealing with any activity whatever, will obviously be only self-imposed.
[Footnote 2/20]
In 1798, when this Court was asked to hold another Connecticut law unconstitutional,
Justice Iredell said:
"[I]t has been the policy of all the American states which have individually framed their
state constitutions since the revolution, and of the people of the United States when they
framed the Federal Constitution, to define with precision the objects of the legislative
power, and to restrain its exercise within marked and settled boundaries. If any act of
Congress, or of the Legislature of a state, violates those constitutional provisions, it is
unquestionably void, though I admit that, as the authority to declare it void is of a delicate
and awful nature, the Court will never resort to that authority but in a clear and urgent
case. If, on the other hand, the Legislature of the Union, or the Legislature of any member
of the Union, shall pass a law within the
Page 381 U. S. 525
general scope of their constitutional power, the Court cannot pronounce it to be void,
merely because it is, in their judgment, contrary to the principles of natural justice. The
ideas of natural justice are regulated by no fixed standard: the ablest and the purest men
have differed upon the subject, and all that the Court could properly say in such an event
would be that the Legislature (possessed of an equal right of opinion) had passed an act
which, in the opinion of the judges, was inconsistent with the abstract principles of
natural justice."
Calder v. Bull, 3 Dall. 386, 3 U. S. 399 (emphasis in original). I would adhere to that
constitutional philosophy in passing on this Connecticut law today. I am not persuaded to
deviate from the view which I stated in 1947 in Adamson v. California, 332 U. S. 46,332
U. S. 90-92 (dissenting opinion):
"Since Marbury v. Madison, 1 Cranch 137, was decided, the practice has been firmly
established, for better or worse, that courts can strike down legislative enactments which
violate the Constitution. This process, of course, involves interpretation, and since words
can have many meanings, interpretation obviously may result in contraction or extension
of the original purpose of a constitutional provision, thereby affecting policy. But to pass
upon the constitutionality of statutes by looking to the particular standards enumerated in
the Bill of Rights and other parts of the Constitution is one thing; to invalidate statutes
because of application of 'natural law' deemed to be above and undefined by the
Constitution is another."
"In the one instance, courts, proceeding within clearly marked constitutional boundaries,
seek to execute policies written into the Constitution; in the other, they roam at will in the
limitless
Page 381 U. S. 526
area of their own beliefs as to reasonableness, and actually select policies, a responsibility
which the Constitution entrusts to the legislative representatives of the people."
"Federal Power Commission v. Pipeline Co., 315 U. S. 575, 315 U. S. 599, 315 U. S.
601, n.4. [Footnote 2/21]"
(Footnotes omitted.) The late Judge Learned Hand, after emphasizing his view that
judges should not use the due process formula suggested in the concurring opinions today
or any other formula like it to invalidate legislation offensive to their "personal
preferences," [Footnote 2/22] made the statement, with which I fully agree, that:
"For myself, it would be most irksome to be ruled by a bevy of Platonic Guardians, even
if I
Page 381 U. S. 527
knew how to choose them, which I assuredly do not. [Footnote 2/23]"
So far as I am concerned, Connecticut's law, as applied here, is not forbidden by any
provision of the Federal Constitution as that Constitution was written, and I would
therefore affirm.
[Footnote 2/1]
The phrase "right to privacy" appears first to have gained currency from an article written
by Messrs. Warren and (later Mr. Justice) Brandeis in 1890 which urged that States
should give some form of tort relief to persons whose private affairs were exploited by
others. The Right to Privacy, 4 Harv.L.Rev.193. Largely as a result of this article, some
States have passed statutes creating such a cause of action, and, in others, state courts
have done the same thing by exercising their powers as courts of common law. See
generally, 41 Am.Jur. 926-927. Thus, the Supreme Court of Georgia, in granting a cause
of action for damages to a man whose picture had been used in a newspaper
advertisement without his consent, said that "A right of privacy in matters purely private
is . . . derived from natural law," and that
"The conclusion reached by us seems to be . . . thoroughly in accord with natural justice,
with the principles of the law of every civilized nation, and especially with the elastic
principles of the common law. . . ."
Pavesich v. New England Life Ins. Co., 122 Ga.190, 194, 218, 50 S.E. 68, 70, 80.
Observing that "the right of privacy . . . presses for recognition here," today this Court,
which I did not understand to have power to sit as a court of common law, now appears
to be exalting a phrase which Warren and Brandeis used in discussing grounds for tort
relief, to the level of a constitutional rule which prevents state legislatures from passing
any law deemed by this Court to interfere with "privacy."
[Footnote 2/2]
Brother HARLAN's views are spelled out at greater length in his dissenting opinion
inPoe v. Ullman, 367 U. S. 497, 367 U. S. 539-555.
[Footnote 2/3]
Indeed, Brother WHITE appears to have gone beyond past pronouncements of the natural
law due process theory, which at least said that the Court should exercise this unlimited
power to declare state acts unconstitutional with "restraint." He now says that, instead of
being presumed constitutional (see Munn v. Illinois, 94 U. S. 113, 94 U. S. 123; compare
Adkins v. Children's Hospital, 261 U. S. 525, 261 U. S. 544), the statute here "bears a
substantial burden of justification when attacked under the Fourteenth Amendment."
[Footnote 2/4]
A collection of the catchwords and catch phrases invoked by judges who would strike
down under the Fourteenth Amendment laws which offend their notions of natural justice
would fill many pages. Thus, it has been said that this Court can forbid state action which
"shocks the conscience," Rochin v. California, 342 U. S. 165, 342 U. S. 172, sufficiently
to "shock itself into the protective arms of the Constitution," Irvine v. California, 347 U.
S. 128, 347 U. S. 138 (concurring opinion). It has been urged that States may not run
counter to the "decencies of civilized conduct," Rochin, supra, at342 U. S. 173, or "some
principle of justice so rooted in the traditions and conscience of our people as to be
ranked as fundamental," Snyder v. Massachusetts, 291 U. S. 97,291 U. S. 105, or to
"those canons of decency and fairness which express the notions of justice of English-
speaking peoples," Malinski v. New York, 324 U. S. 401, 324 U. S. 417 (concurring
opinion), or to "the community's sense of fair play and decency,"Rochin, supra, at 342 U.
S. 173. It has been said that we must decide whether a state law is "fair, reasonable and
appropriate," or is rather
"an unreasonable, unnecessary and arbitrary interference with the right of the individual
to his personal liberty or to enter into . . . contracts,"
Lochner v. New York, 198 U. S. 45, 198 U. S. 56. States, under this philosophy, cannot
act in conflict with "deeply rooted feelings of the community," Haley v. Ohio, 332 U. S.
596, 332 U. S. 604 (separate opinion), or with "fundamental notions of fairness and
justice," id. 332 U. S. 607. See also, e.g., Wolf v. Colorado, 338 U. S. 25, 338 U. S.
27("rights . . . basic to our free society"); Hebert v. Louisiana, 272 U. S. 312, 272 U. S.
316 ("fundamental principles of liberty and justice"); Adkins v. Children's Hospital, 261
U. S. 525, 261 U. S. 561 ("arbitrary restraint of . . . liberties"); Betts v. Brady, 316 U. S.
455, 316 U. S. 462 ("denial of fundamental fairness, shocking to the universal sense of
justice"); Poe v. Ullman, 367 U. S. 497, 367 U. S. 539 (dissenting opinion) ("intolerable
and unjustifiable"). Perhaps the clearest, frankest, and briefest explanation of how this
due process approach works is the statement in another case handed down today that this
Court is to invoke the Due Process Clause to strike down state procedures or laws which
it can "not tolerate." Linkletter v. Walker, post, p. 381 U. S. 618, at 381 U. S. 631.
[Footnote 2/5]
See Hand, The Bill of Rights (1958) 70: .
"[J]udges are seldom content merely to annul the particular solution before them; they do
not, indeed they may not, say that, taking all things into consideration, the legislators'
solution is too strong for the judicial stomach. On the contrary, they wrap up their veto in
a protective veil of adjectives such as 'arbitrary,' 'artificial,' 'normal,' 'reasonable,'
'inherent,' 'fundamental,' or 'essential,' whose office usually, though quite innocently, is to
disguise what they are doing and impute to it a derivation far more impressive than their
personal preferences, which are all that, in fact, lie behind the decision."
See also Rochin v. California, 342 U. S. 165, 342 U. S. 174 (concurring opinion). But see
Linkletter v. Walker, supra, n. 4, at 631.
[Footnote 2/6]
This Court held in Marbury v. Madison, 1 Cranch 137, that this Court has power to
invalidate laws on the ground that they exceed the constitutional power of Congress or
violate some specific prohibition of the Constitution. See also Fletcher v. Peck, 6 Cranch
87. But the Constitutional Convention did, on at least two occasions, reject proposals
which would have given the federal judiciary a part in recommending laws or in vetoing
as bad or unwise the legislation passed by the Congress. Edmund Randolph of Virginia
proposed that the President
". . . and a convenient number of the National Judiciary ought to compose a council of
revision with authority to examine every act of the National Legislature before it shall
operate, & every act of a particular Legislature before a Negative thereon shall be final,
and that the dissent of the said Council shall amount to a rejection, unless the Act of the
National Legislature be again passed, or that of a particular Legislature be again
negatived by ___ [original wording illegible] of the members of each branch."
1 The Records of the Federal Convention of 1787 (Farrand ed.1911) 21.
In support of a plan of this kind, James Wilson of Pennsylvania argued that:
". . . It had been said that the Judges, as expositors of the Laws, would have an
opportunity of defending their constitutional rights. There was weight in this observation;
but this power of the Judges did not go far enough. Laws may be unjust, may be unwise,
may be dangerous, may be destructive, and yet not be so unconstitutional as to justify the
Judges in refusing to give them effect. Let them have a share in the Revisionary power,
and they will have an opportunity of taking notice of these characters of a law, and of
counteracting, by the weight of their opinions the improper views of the Legislature."
2 id. at 73.
Nathaniel Gorham of Massachusetts
"did not see the advantage of employing the Judges in this way. As Judges, they are not
to be presumed to possess any peculiar knowledge of the mere policy of public
measures."
Ibid. Elbridge Gerry of Massachusetts likewise opposed the proposal for a council of
revision:
". . . He relied, for his part, on the Representatives of the people as the guardians of their
Rights & interests. It [the proposal] was making the Expositors of the Laws the
Legislators, which ought never to be done."
Id. at 75. And, at another point:
"Mr. Gerry doubts whether the Judiciary ought to form a part of it [the proposed council
of revision], as they will have a sufficient check agst. encroachments on their own
department by their exposition of the laws, which involved a power of deciding on their
Constitutionality. . . . It was quite foreign from the nature of ye. office to make them
judges of the policy of public measures."
1 Id. at 97-98. Madison supported the proposal on the ground that "a Check [on the
legislature] is necessary." Id. at 108. John Dickinson of Delaware opposed it on the
ground that "the Judges must interpret the Laws; they ought not to be
legislators."Ibid. The proposal for a council of revision was defeated. The following
proposal was also advanced:
"To assist the President in conducting the Public affairs, there shall be a Council of State
composed of the following officers -- 1. The Chief Justice of the Supreme Court, who
shall from time to time recommend such alterations of and additions to the laws of the
U.S. as may in his opinion be necessary to the due administration of Justice, and such as
may promote useful learning and inculcate sound morality throughout the Union. . . ."
2 id. at 342. This proposal too was rejected.
[Footnote 2/7]
In Meyer, in the very same sentence quoted in part by my Brethren in which he asserted
that the Due Process Clause gave an abstract and inviolable right "to marry, establish a
home and bring up children," Mr. Justice McReynolds also asserted the heretofore
discredited doctrine that the Due Process Clause prevented States from interfering with
"the right of the individual to contract." 262 U.S. at 262 U. S. 399.
[Footnote 2/8]
Compare Poe v. Ullman, 367 U.S. at 367 U. S. 53-54 (HARLAN, J., dissenting).
[Footnote 2/9]
The Court has also said that, in view of the Fourteenth Amendment's major purpose of
eliminating state-enforced racial discrimination, this Court will scrutinize carefully any
law embodying a racial classification to make sure that it does not deny equal protection
of the laws. See McLaughlin v. Florida, 379 U. S. 184.
[Footnote 2/10]
None of the other cases decided in the past 25 years which Brothers WHITE and
GOLDBERG cite can justly be read as holding that judges have power to use a natural
law due process formula to strike down all state laws which they think are unwise,
dangerous, or irrational. Prince v. Massachusetts, 321 U. S. 158, upheld a state law
forbidding minors from selling publications on the streets. Kent v. Dulles, 357 U. S. 116,
recognized the power of Congress to restrict travel outside the country so long as it
accorded persons the procedural safeguards of due process and did not violate any other
specific constitutional provision. Schware v. Board of Bar Examiners, 353 U. S. 232,
held simply that a State could not, consistently with due process, refuse a lawyer a license
to practice law on the basis of a finding that he was morally unfit when there was no
evidence in the record, 353 U.S. at 353 U. S. 246-247, to support such a finding.Compare
Thompson v. City of Louisville, 362 U. S. 199, in which the Court relied in part
on Schware. See also Konigsberg v. State Bar, 353 U. S. 252. And Bolling v. Sharpe, 347
U. S. 497, merely recognized what had been the understanding from the beginning of the
country, an understanding shared by many of the draftsmen of the Fourteenth
Amendment, that the whole Bill of Rights, including the Due Process Clause of the Fifth
Amendment, was a guarantee that all persons would receive equal treatment under the
law. Compare Chambers v. Florida, 309 U. S. 227, 309 U. S. 240-241. With one
exception, the other modern cases relied on by my Brethren were decided either solely
under the Equal Protection Clause of the Fourteenth Amendment or under the First
Amendment, made applicable to the States by the Fourteenth, some of the latter group
involving the right of association which this Court has held to be a part of the rights of
speech, press and assembly guaranteed by the First Amendment. As for Aptheker v.
Secretary of State, 378 U. S. 500, I am compelled to say that, if that decision was written
or intended to bring about the abrupt and drastic reversal in the course of constitutional
adjudication which is now attributed to it, the change was certainly made in a very quiet
and unprovocative manner, without any attempt to justify it.
[Footnote 2/11]
Compare Adkins v. Children's Hospital, 261 U. S. 525, 261 U. S. 568 (Holmes, J.,
dissenting):
"The earlier decisions upon the same words [the Due Process Clause] in the Fourteenth
Amendment began within our memory, and went no farther than an unpretentious
assertion of the liberty to follow the ordinary callings. Later, that innocuous generality
was expanded into the dogma, Liberty of Contract. Contract is not specially mentioned in
the text that we have to construe. It is merely an example of doing what you want to do,
embodied in the word liberty. But pretty much all law consists in forbidding men to do
some things that they want to do, and contract is no more exempt from law than other
acts."
[Footnote 2/12]
See Patterson, The Forgotten Ninth Amendment (1955). Mr. Patterson urges that the
Ninth Amendment be used to protect unspecified "natural and inalienable rights." P. 4.
The Introduction by Roscoe Pound states that "there is a marked revival of natural law
ideas throughout the world. Interest in the Ninth Amendment is a symptom of that
revival." P. iii.
In Redlich, Are There "Certain Rights . . . Retained by the People"?, 37 N.Y.U.L.Rev.
787, Professor Redlich, in advocating reliance on the Ninth and Tenth Amendments to
invalidate the Connecticut law before us, frankly states:
"But for one who feels that the marriage relationship should be beyond the reach of a
state law forbidding the use of contraceptives, the birth control case poses a troublesome
and challenging problem of constitutional interpretation. He may find himself saying,
'The law is unconstitutional -- but why?' There are two possible paths to travel in finding
the answer. One is to revert to a frankly flexible due process concept even on matters that
do not involve specific constitutional prohibitions. The other is to attempt to evolve a
new constitutional framework within which to meet this and similar problems which are
likely to arise."
Id. at 798.
[Footnote 2/13]
Of course, one cannot be oblivious to the fact that Mr. Gallup has already published the
results of a poll which he says show that 46% of the people in this country believe
schools should teach about birth control. Washington Post, May 21, 1965, p. 2, col. 1. I
can hardly believe, however, that Brother GOLDBERG would view 46% of the persons
polled as so overwhelming a proportion that this Court may now rely on it to declare that
the Connecticut law infringes "fundamental" rights, and overrule the longstanding view
of the people of Connecticut expressed through their elected representatives.
[Footnote 2/14]
U.S.Const., Amend. IX, provides:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people."
[Footnote 2/15]
1 Annals of Congress 439. See also II Story, Commentaries on the Constitution of the
United States (5th ed. 1891):
"This clause was manifestly introduced to prevent any perverse or ingenious
misapplication of the well known maxim that an affirmation in particular cases implies a
negation in all others; and, e converso, that a negation in particular cases implies an
affirmation in all others. The maxim, rightly understood, is perfectly sound and safe; but
it has often been strangely forced from its natural meaning into the support of the most
dangerous political heresies."
Id. at 651 (footnote omitted).
[Footnote 2/16]
Justice Holmes, in one of his last dissents, written in reply to Mr. Justice McReynolds'
opinion for the Court in Baldwin v. Missouri, 281 U. S. 586, solemnly warned against a
due process formula apparently approved by my concurring Brethren today. He said:
"I have not yet adequately expressed the more than anxiety that I feel at the ever
increasing scope given to the Fourteenth Amendment in cutting down what I believe to
be the constitutional rights of the States. As the decisions now stand, I see hardly any
limit but the sky to the invalidating of those rights if they happen to strike a majority of
this Court as for any reason undesirable. I cannot believe that the Amendment was
intended to give us carte blanche to embody our economic or moral beliefs in its
prohibitions. Yet I can think of no narrower reason that seems to me to justify the present
and the earlier decisions to which I have referred. Of course, the words 'due process of
law,' if taken in their literal meaning, have no application to this case, and while it is too
late to deny that they have been given a much more extended and artificial signification,
still we ought to remember the great caution shown by the Constitution in limiting the
power of the States, and should be slow to construe the clause in the Fourteenth
Amendment as committing to the Court, with no guide but the Court's own discretion, the
validity of whatever laws the States may pass."
281 U.S. at 281 U. S. 595. See 2 Holmes-Pollock Letters (Howe ed.1941) 267-268.
[Footnote 2/17]
E.g., in Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 342 U. S. 423, this Court
held that
"Our recent decisions make plain that we do not sit as a superlegislature to weigh the
wisdom of legislation nor to decide whether the policy which it expresses offends the
public welfare."
Compare Gardner v. Massachusetts, 305 U.S. 559, which the Court today apparently
overrules, which held that a challenge under the Federal Constitution to a state law
forbidding the sale or furnishing of contraceptives did not raise a substantial federal
question.
[Footnote 2/18]
Brother HARLAN, who has consistently stated his belief in the power of courts to strike
down laws which they consider arbitrary or unreasonable, see, e.g., Poe v. Ullman, 367
U. S. 497, 367 U. S. 539-555 (dissenting opinion), did not join the Court's opinion
inFerguson v. Skrupa.
[Footnote 2/19]
Justice Holmes, dissenting in Tyson, said:
"I think the proper course is to recognize that a state legislature can do whatever it sees fit
to do unless it is restrained by some express prohibition in the Constitution of the United
States or of the State, and that Courts should be careful not to extend such prohibitions
beyond their obvious meaning by reading into them conceptions of public policy that the
particular Court may happen to entertain."
273 U.S. at 273 U. S. 446.
[Footnote 2/20]
Compare Nicchia v. New York, 254 U. S. 228, 254 U. S. 231, upholding a New York
dog-licensing statute on the ground that it did not "deprive dog owners of liberty without
due process of law." And, as I said concurring in Rochin v. California, 342 U. S. 165, 342
U. S. 175,
"I believe that faithful adherence to the specific guarantees in the Bill of Rights insures a
more permanent protection of individual liberty than that which can be afforded by the
nebulous standards"
urged by my concurring Brethren today.
[Footnote 2/21]
Gideon v. Wainwright, 372 U. S. 335, and similar cases applying specific Bill of Rights
provisions to the States do not, in my view, stand for the proposition that this Court can
rely on its own concept of "ordered liberty" or "shocking the conscience" or natural law
to decide what laws it will permit state legislatures to enact. Gideon, in applying to state
prosecutions the Sixth Amendment's guarantee of right to counsel, followed Palko v.
Connecticut, 302 U. S. 319, which had held that specific provisions of the Bill of Rights,
rather than the Bill of Rights as a whole, would be selectively applied to the States. While
expressing my own belief (not shared by MR. JUSTICE STEWART) that all the
provisions of the Bill of Rights were made applicable to the States by the Fourteenth
Amendment, in my dissent in Adamson v. California, 332 U. S. 46, 332 U. S. 89, I also
said:
"If the choice must be between the selective process of the Palko decision applying some
of the Bill of Rights to the States, or the Twining rule applying none of them, I would
choose the Palko selective process."
Gideon and similar cases merely followed the Palko rule, which, in Adamson, I agreed to
follow if necessary to make Bill of Rights safeguards applicable to the States. See also
Pointer v. Texas, 380 U. S. 400; Malloy v. Hogan, 378 U. S. 1.
[Footnote 2/22]
Hand, The Bill of Rights (1958) 70. See note 5, supra. See generally id. at 35-45.
[Footnote 2/23]
Id. at 73. While Judge Hand condemned as unjustified the invalidation of state laws under
the natural law due process formula, see id. at 35-45, he also expressed the view that this
Court, in a number of cases, had gone too far in holding legislation to be in violation of
specific guarantees of the Bill of Rights. Although I agree with his criticism of use of the
due process formula, I do not agree with all the views he expressed about construing the
specific guarantees of the Bill of Rights.
MR. JUSTICE STEWART, whom MR. JUSTICE BLACK joins, dissenting.
Since 1879, Connecticut has had on its books a law which forbids the use of
contraceptives by anyone. I think this is an uncommonly silly law. As a practical matter,
the law is obviously unenforceable, except in the oblique context of the present case. As a
philosophical matter, I believe the use of contraceptives in the relationship of marriage
should be left to personal and private choice, based upon each individual's moral, ethical,
and religious beliefs. As a matter of social policy, I think professional counsel about
methods of birth control should be available to all, so that each individual's choice can be
meaningfully made. But we are not asked in this case to say whether we think this law is
unwise, or even asinine. We are asked to hold that it violates the United States
Constitution. And that I cannot do.
In the course of its opinion, the Court refers to no less than six Amendments to the
Constitution: the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth.
Page 381 U. S. 528
But the Court does not say which of these Amendments, if any, it thinks is infringed by
this Connecticut law.
We are told that the Due Process Clause of the Fourteenth Amendment is not, as such, the
"guide" in this case. With that much, I agree. There is no claim that this law, duly enacted
by the Connecticut Legislature, is unconstitutionally vague. There is no claim that the
appellants were denied any of the elements of procedural due process at their trial, so as
to make their convictions constitutionally invalid. And, as the Court says, the day has
long passed since the Due Process Clause was regarded as a proper instrument for
determining "the wisdom, need, and propriety" of state laws. Compare Lochner v. New
York, 198 U. S. 45, with Ferguson v. Skrupa, 372 U. S. 726. My Brothers HARLAN and
WHITE to the contrary,
"[w]e have returned to the original constitutional proposition that courts do not substitute
their social and economic beliefs for the judgment of legislative bodies, who are elected
to pass laws."
Ferguson v. Skrupa, supra, at 372 U. S. 730
As to the First, Third, Fourth, and Fifth Amendments, I can find nothing in any of them
to invalidate this Connecticut law, even assuming that all those Amendments are fully
applicable against the States. [Footnote 3/1] It has
Page 381 U. S. 529
not even been argued that this is a law "respecting an establishment of religion, or
prohibiting the free exercise thereof." [Footnote 3/2] And surely, unless the solemn
process of constitutional adjudication is to descend to the level of a play on words, there
is not involved here any abridgment of
"the freedom of speech, or of the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances. [Footnote 3/3]"
No soldier has been quartered in any house. [Footnote 3/4] There has been no search, and
no seizure. [Footnote 3/5] Nobody has been compelled to be a witness against himself.
[Footnote 3/6]
The Court also quotes the Ninth Amendment, and my Brother GOLDBERG's concurring
opinion relies heavily upon it. But to say that the Ninth Amendment has anything to do
with this case is to turn somersaults with history. The Ninth Amendment, like its
companion, the Tenth, which this Court held "states but a truism that all is retained which
has not been surrendered," United States v. Darby, 312 U. S. 100, 312 U. S. 124, was
framed by James Madison and adopted by the States simply to make clear that the
adoption of the Bill of Rights did not alter the plan that
Page 381 U. S. 530
the Federal Government was to be a government of express and limited powers, and that
all rights and powers not delegated to it were retained by the people and the individual
States. Until today, no member of this Court has ever suggested that the Ninth
Amendment meant anything else, and the idea that a federal court could ever use the
Ninth Amendment to annul a law passed by the elected representatives of the people of
the State of Connecticut would have caused James Madison no little wonder.
What provision of the Constitution, then, does make this state law invalid? The Court
says it is the right of privacy "created by several fundamental constitutional guarantees."
With all deference, I can find no such general right of privacy in the Bill of Rights, in any
other part of the Constitution, or in any case ever before decided by this Court. [Footnote
3/7]
At the oral argument in this case, we were told that the Connecticut law does not
"conform to current community standards." But it is not the function of this Court to
decide cases on the basis of community standards. We are here to decide cases "agreeably
to the Constitution and laws of the United States." It is the essence of judicial
Page 381 U. S. 531
duty to subordinate our own personal views, our own ideas of what legislation is wise and
what is not. If, as I should surely hope, the law before us does not reflect he standards of
the people of Connecticut, the people of Connecticut can freely exercise their true Ninth
and Tenth Amendment rights to persuade their elected representatives to repeal it. That is
the constitutional way to take this law off the books. [Footnote 3/8]
[Footnote 3/1]
The Amendments in question were, as everyone knows, originally adopted as limitations
upon the power of the newly created Federal Government, not as limitations upon the
powers of the individual States. But the Court has held that many of the provisions of the
first eight amendments are fully embraced by the Fourteenth Amendment as limitations
upon state action, and some members of the Court have held the view that the adoption of
the Fourteenth Amendment made every provision of the first eight amendments fully
applicable against the States. See Adamson v. California, 332 U. S. 46, 332 U. S.
68 (dissenting opinion of MR. JUSTICE BLACK).
[Footnote 3/2]
U.S. Constitution, Amendment I. To be sure, the injunction contained in the Connecticut
statute coincides with the doctrine of certain religious faiths. But if that were enough to
invalidate a law under the provisions of the First Amendment relating to religion, then
most criminal laws would be invalidated. See, e.g., the Ten Commandments. The Bible,
Exodus 20:2-17 (King James).
[Footnote 3/3]
U.S. Constitution, Amendment I. If all the appellants had done was to advise people that
they thought the use of contraceptives was desirable, or even to counsel their use, the
appellants would, of course, have a substantial First Amendment claim. But their
activities went far beyond mere advocacy. They prescribed specific contraceptive devices
and furnished patients with the prescribed contraceptive materials.
[Footnote 3/4]
U.S. Constitution, Amendment III.
[Footnote 3/5]
U.S. Constitution, Amendment IV.
[Footnote 3/6]
U.S. Constitution, Amendment V.
[Footnote 3/7]
Cases like Shelton v. Tucker, 364 U. S. 479 and Bates v. Little Rock, 361 U. S. 516, relied
upon in the concurring opinions today, dealt with true First Amendment rights of
association, and are wholly inapposite here. See also, e.g., NAACP v. Alabama, 357 U. S.
449; Edwards v. South Carolina, 372 U. S. 229. Our decision in McLaughlin v.
Florida, 379 U. S. 184, is equally far afield. That case held invalid under the Equal
Protection Clause, a state criminal law which discriminated against Negroes.
The Court does not say how far the new constitutional right of privacy announced today
extends. See, e.g., Mueller, Legal Regulation of Sexual Conduct, at 127; Ploscowe, Sex
and the Law, at 189. I suppose, however, that, even after today, a State can
constitutionally still punish at least some offenses which are not committed in public.
[Footnote 3/8]
See Reynolds v. Sims, 377 U. S. 533, 377 U. S. 562. The Connecticut House of
Representatives recently passed a bill (House Bill No. 2462) repealing the birth control
law. The State Senate has apparently not yet acted on the measure, and today is relieved
of that responsibility by the Court. New Haven Journal-Courier, Wed., May 19, 1965, p.
1, col. 4, and p. 13, col. 7.



U.S. Supreme Court
Eisenstadt v. Baird, 405 U.S. 438 (1972)
Eisenstadt v. Baird
No. 70-17
Argued November 17-18, 1971
Decided March 22, 1972
405 U.S. 438
APPEAL FROM THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Syllabus
Appellee attacks his conviction of violating Massachusetts law for giving a woman a
contraceptive foam at the close of his lecture to students on contraception. That law
makes it a felony for anyone to give away a drug, medicine, instrument, or article for the
prevention of conception except in the case of (1) a registered physician administering or
prescribing it for a married person or (2) an active registered pharmacist furnishing it to a
married person presenting a registered physician's prescription. The District Court
dismissed appellee's petition for a writ of habeas corpus. The Court of Appeals vacated
the dismissal, holding that the statute is a prohibition on contraception per se, and
conflicts "with fundamental human rights" under Griswold v. Connecticut, 381 U. S. 479.
Appellant, inter alia, argues that appellee lacks standing to assert the rights of unmarried
persons denied access to contraceptives because he was neither an authorized distributor
under the statute nor a single person unable to obtain contraceptives.
Held:
1. If, as the Court of Appeals held, the statute under which appellee was convicted is not
a health measure, appellee may not be prevented, because he was not an authorized
distributor, from attacking the statute in its alleged discriminatory application to potential
distributees. Appellee, furthermore, has standing to assert the rights of unmarried persons
denied access to contraceptives because their ability to obtain them will be materially
impaired by enforcement of the statute. Cf. Griswold, supra; Barrows v. Jackson, 346 U.
S. 249. Pp. 405 U. S. 443-446.
2. By providing dissimilar treatment for married and unmarried persons who are similarly
situated, the statute violates the Equal Protection Clause of the Fourteenth Amendment.
Pp. 405 U. S. 446-455.
(a) The deterrence of fornication, a 90-day misdemeanor under Massachusetts law,
cannot reasonably be regarded as the purpose of the statute, since the statute is riddled
with exceptions making contraceptives freely available for use in premarital sexual
Page 405 U. S. 439
relations and its scope and penalty structure are inconsistent with that purpose. Pp.405 U.
S. 447-450.
(b) Similarly, the protection of public health through the regulation of the distribution of
potentially harmful articles cannot reasonably be regarded as the purpose of the law,
since, if health were the rationale, the statute would be both discriminatory and
overbroad, and federal and state laws already regulate the distribution of drugs unsafe for
use except under the supervision of a licensed physician. Pp. 405 U. S. 450-452.
(c) Nor can the statute be sustained simply as a prohibition on contraception per se,for,
whatever the rights of the individual to access to contraceptives may be, the rights must
be the same for the unmarried and the married alike. If, under Griswold, supra,the
distribution of contraceptives to married persons cannot be prohibited, a ban on
distribution to unmarried persons would be equally impermissible, since the
constitutionally protected right of privacy inheres in the individual, not the marital
couple. If, on the other hand, Griswold is no bar to a prohibition on the distribution of
contraceptives, a prohibition limited to unmarried persons would be underinclusive, and
invidiously discriminator. Pp. 405 U. S. 452-455.
429 F.2d 1398, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, STEWART,
and MARSHALL JJ., joined. DOUGLAS, J., filed a concurring opinion, post, p. 405 U.
S. 455. WHITE, J., filed an opinion concurring in the result, in which BLACKMUN, J.,
joined, post,p. 405 U. S. 460. BURGER, C.J., filed a dissenting opinion, post, p. 405 U.
S. 465. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of
the case.
Page 405 U. S. 440
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Appellee William Baird was convicted at a bench trial in the Massachusetts Superior
Court under Massachusetts General Laws Ann., c. 272, 21, first, for exhibiting
contraceptive articles in the course of delivering a lecture on contraception to a group of
students at Boston University and, second, for giving a young woman a package of Emko
vaginal foam at the close of his address. [Footnote 1] The Massachusetts Supreme
Judicial Court unanimously set aside the conviction for exhibiting contraceptives on the
ground that it violated Baird's First Amendment rights, but, by a four-to-three vote,
sustained the conviction for giving away the foam. Commonwealth v. Baird, 355 Mass.
746, 247 N.E.2d 574 (1969). Baird subsequently filed a petition for a federal writ of
habeas corpus, which the District Court dismissed. 310 F.Supp. 951 (1970). On appeal,
however, the Court of Appeals for the First Circuit vacated the dismissal and remanded
the action with directions to grant the writ discharging Baird. 429 F.2d 1398 (1970). This
appeal by the Sheriff of Suffolk County, Massachusetts, followed, and we noted probable
jurisdiction. 401 U.S. 934 (1971). We affirm.
Massachusetts General Laws Ann., c. 272, 21, under which Baird was convicted,
provides a maximum five-year term of imprisonment for "whoever . . . gives away . . .
any drug, medicine, instrument or article whatever
Page 405 U. S. 441
for the prevention of conception," except as authorized in 21A. Under 21A,
"[a] registered physician may administer to or prescribe for any married person drugs or
articles intended for the prevention of pregnancy or conception. [And a] registered
pharmacist actually engaged in the business of pharmacy may furnish such drugs or
articles to any married person presenting a prescription from a registered physician.
[Footnote 2]"
As interpreted by the State Supreme Judicial
Page 405 U. S. 442
Court, these provisions make it a felony for anyone, other than a registered physician or
pharmacist acting in accordance with the terms of 21A, to dispense any article with the
intention that it be used for the prevention of conception. The statutory scheme
distinguishes among three distinct classes of distributees -- first, married persons may
obtain contraceptives to prevent pregnancy, but only from doctors or druggists on
prescription; second, single persons may not obtain contraceptives from anyone to
prevent pregnancy; and, third, married or single persons may obtain contraceptives from
anyone to prevent not pregnancy, but the spread of disease. This construction of state law
is, of course, binding on us. E.g., Groppi v. Wisconsin, 400 U. S. 505, 400 U. S.
507 (1971).
The legislative purposes that the statute is meant to serve are not altogether clear.
InCommonwealth v. Bard, supra, the Supreme Judicial Court noted only the State's
interest in protecting the health of its citizens: "[T]he prohibition in 21," the court
declared, "is directly related to" the State's goal of
"preventing the distribution of articles designed to prevent conception which may have
undesirable, if not dangerous, physical consequences."
355 Mass. at 753, 247 N.E.2d at 578. In a subsequent decision, Sturgis v. Attorney
General, 358 Mass. 37, ___, 260 N.E.2d 687, 690 (1970), the court, however, found "a
second and more compelling ground for upholding the statute" -- namely, to protect
morals through "regulating the private sexual lives of single persons." [Footnote 3] The
Court of Appeals, for reasons that will
Page 405 U. S. 443
appear, did not consider the promotion of health or the protection of morals through the
deterrence of fornication to be the legislative aim. Instead, the court concluded that the
statutory goal was to limit contraception in and of itself -- a purpose that the court held
conflicted "with fundamental human rights" under Griswold v. Connecticut, 381 U. S.
479 (1965), where this Court struck down Connecticut's prohibition against the use of
contraceptives as an unconstitutional infringement of the right of marital privacy. 429
F.2d at 1401-1402.
We agree that the goals of deterring premarital sex and regulating the distribution of
potentially harmful articles cannot reasonably be regarded as legislative aims of 21
and 21A. And we hold that the statute, viewed as a prohibition on contraception per
se,violates the rights of single persons under the Equal Protection Clause of the
Fourteenth Amendment.
I
We address at the outset appellant's contention that Baird does not have standing to assert
the rights of unmarried persons denied access to contraceptives, because he was neither
an authorized distributor under 21A nor a single person unable to obtain contraceptives.
There can be no question, of course, that Baird has sufficient interest in challenging the
statute's validity to satisfy the "case or controversy" requirement of Article III of the
Constitution. [Footnote 4] Appellant's argument, however, is that
Page 405 U. S. 444
this case is governed by the Court's self-imposed rules of restraint, first, that
"one to whom application of a statute is constitutional will not be heard to attack the
statute on the ground that impliedly it might also be taken as applying to other persons or
other situations in which its application might be unconstitutional,"
United States v. Raines, 362 U. S. 17, 362 U. S. 21 (1960), and, second, the "closely
related corollary that a litigant may only assert his own constitutional rights or
immunities," id. at 362 U. S. 22. Here, appellant contends that Baird's conviction rests on
the restriction in 21A on permissible distributors, and that that restriction serves a valid
health interest independent of the limitation on authorized distributees. Appellant urges,
therefore, that Baird's action in giving away the foam fell squarely within the conduct that
the legislature meant and had power to prohibit, and that Baird should not be allowed to
attack the statute in its application to potential recipients. In any event, appellant
concludes, since Baird was not himself a single person denied access to contraceptives,
he should not be heard to assert their rights. We cannot agree.
The Court of Appeals held that the statute under which Baird was convicted is not a
health measure. If that view is correct, we do not see how Baird may be prevented,
because he was neither a doctor nor a druggist, from attacking the statute in its alleged
discriminatory application to potential distributees. We think, too, that our self-imposed
rule against the assertion of third-party rights must be relaxed in this case, just as
inGriswold v. Connecticut, supra. There, the Executive Director of the Planned
Parenthood League of Connecticut and a licensed physician who had prescribed
contraceptives for married persons and been convicted as accessories to the crime of
using contraceptives were held to have standing to raise the constitutional rights of the
patients with whom they had a professional relationship.
Page 405 U. S. 445
Appellant here argues that the absence of a professional or "aiding and abetting"
relationship distinguishes this case from Griswold. Yet, as the Court's discussion of prior
authority in Griswold, 381 U.S. at 381 U. S. 481, indicates, the doctor-patient and
accessory-principal relationships are not the only circumstances in which one person has
been found to have standing to assert the rights of another. Indeed, in Barrows v.
Jackson, 346 U. S. 249 (1953), a seller of land was entitled to defend against an action
for damages for breach of a racially restrictive covenant on the ground that enforcement
of the covenant violated the equal protection rights of prospective non-Caucasian
purchasers. The relationship there between the defendant and those whose rights he
sought to assert was not simply the fortuitous connection between a vendor and potential
vendees, but the relationship between one who acted to protect the rights of a minority
and the minority itself. Sedler, Standing to Assert Constitutional Jus Tertii in the
Supreme Court, 71 Yale L.J. 599, 631 (1962). And so here, the relationship between
Baird and those whose rights he seeks to assert is not simply that between a distributor
and potential distributees, but that between an advocate of the rights of persons to obtain
contraceptives and those desirous of doing so. The very point of Baird's giving away the
vaginal foam was to challenge the Massachusetts statute that limited access to
contraceptives.
In any event, more important than the nature of the relationship between the litigant and
those whose rights he seeks to assert is the impact of the litigation on the third-party
interests. [Footnote 5] In Griswold, 381 U.S. at 381 U. S. 481, the
Page 405 U. S. 446
Court stated:
"The rights of husband and wife, pressed here, are likely to be diluted or adversely
affected unless those rights are considered in a suit involving those who have this kind of
confidential relation to them."
A similar situation obtains here. Enforcement of the Massachusetts statute will materially
impair the ability of single persons to obtain contraceptives. In fact, the case for
according standing to assert third-party rights is stronger in this regard here than
in Griswold, because unmarried persons denied access to contraceptives in
Massachusetts, unlike the users of contraceptives in Connecticut, are not themselves
subject to prosecution, and, to that extent, are denied a forum in which to assert their own
rights. Cf. NAACP v. Alabama, 357 U. S. 449 (1958); Barrows v. Jackson,
supra.[Footnote 6] The Massachusetts statute, unlike the Connecticut law considered
inGriswold, prohibits, not use, but distribution.
For the foregoing reasons we hold that Baird, who is now in a position, and plainly has an
adequate incentive, to assert the rights of unmarried persons denied access to
contraceptives, has standing to do so. We turn to the merits.
II
The basic principles governing application of the Equal Protection Clause of the
Fourteenth Amendment are familiar. As THE CHIEF JUSTICE only recently explained
inReed v. Reed, 404 U. S. 71, 404 U. S. 75-76 (1971):
"In applying that clause, this Court has consistently recognized that the Fourteenth
Amendment
Page 405 U. S. 447
does not deny to States the power to treat different classes of persons in different
ways. Barbier v. Connolly, 113 U. S. 27 (1885); Lindsley v. Natural Carbonic Gas
Co.,220 U. S. 61 (1911); Railway Express Agency v. New York, 336 U. S.
106 (1949);McDonald v. Board of Election Commissioners, 394 U. S. 802 (1969). The
Equal Protection Clause of that amendment does, however, deny to States the power to
legislate that different treatment be accorded to persons placed by a statute into different
classes on the basis of criteria wholly unrelated to the objective of that statute. A
classification"
"must be reasonable, not arbitrary, and must rest upon some ground of difference having
a fair and substantial relation to the object of the legislation, so that all persons similarly
circumstanced shall be treated alike."
"Royster Guano Co. v. Virginia, 253 U. S. 412, 253 U. S. 415 (1920)."
The question for our determination in this case is whether there is some ground of
difference that rationally explains the different treatment accorded married and unmarried
persons under Massachusetts General Laws Ann., c. 272, 21 and 21A. [Footnote 7]
For the reasons that follow, we conclude that no such ground exists.
First. Section 21 stems from Mass.Stat. 1879, c. 159, 1, which prohibited, without
exception, distribution of articles intended to be used as contraceptives. InCommonwealth
v. Allison, 227 Mass. 57, 62, 116 N.E. 265,
Page 405 U. S. 448
266 (1917), the Massachusetts Supreme Judicial Court explained that the law's
"plain purpose is to protect purity, to preserve chastity, to encourage continence and self-
restraint, to defend the sanctity of the home, and thus to engender in the State and nation
a virile and virtuous race of men and women."
Although the State clearly abandoned that purpose with the enactment of 21A, at least
insofar as the illicit sexual activities of married persons are concerned, see n 3,supra, the
court reiterated in Sturgis v. Attorney General, supra, that the object of the legislation is
to discourage premarital sexual intercourse. Conceding that the State could, consistently
with the Equal Protection Clause, regard the problems of extramarital and premarital
sexual relations as "[e]vils . . . of different dimensions and proportions, requiring
different remedies," Williamson v. Lee Optical Co., 348 U. S. 483, 348 U. S. 489 (1955),
we cannot agree that the deterrence of premarital sex may reasonably be regarded as the
purpose of the Massachusetts law.
It would be plainly unreasonable to assume that Massachusetts has prescribed pregnancy
and the birth of an unwanted child as punishment for fornication, which is a misdemeanor
under Massachusetts General Laws Ann., c. 272, 18. Aside from the scheme of values
that assumption would attribute to the State, it is abundantly clear that the effect of the
ban on distribution of contraceptives to unmarried persons has, at best, a marginal
relation to the proffered objective. What Mr. Justice Goldberg said inGriswold v.
Connecticut, supra, at 381 U. S. 498 (concurring opinion), concerning the effect of
Connecticut's prohibition on the use of contraceptives in discouraging extramarital sexual
relations, is equally applicable here.
"The rationality of this justification is dubious, particularly in light of the admitted
widespread availability to all persons in the State of Connecticut, unmarried as well as
married, of birth control devices for the
Page 405 U. S. 449
prevention of disease, as distinguished from the prevention of conception."
See also id. at 381 U. S. 505-507 (WHITE, J., concurring in judgment). Like
Connecticut's laws, 21 and 21A do not at all regulate the distribution of contraceptives
when they are to be used to prevent, not pregnancy, but the spread of
disease. Commonwealth v. Corbett, 307 Mass. 7, 29 N.E.2d 151 (1940), cited with
approval in Commonwealth v. Baird, 355 Mass. at 754, 247 N.E.2d at 579. Nor, in
making contraceptives available to married persons without regard to their intended use,
does Massachusetts attempt to deter married persons from engaging in illicit sexual
relations with unmarried persons. Even on the assumption that the fear of pregnancy
operates as a deterrent to fornication, the Massachusetts statute is thus so riddled with
exceptions that deterrence of premarital sex cannot reasonably be regarded as its aim.
Moreover, 21 and 21A, on their face, have a dubious relation to the State's criminal
prohibition on fornication. As the Court of Appeals explained,
"Fornication is a misdemeanor [in Massachusetts], entailing a thirty dollar fine, or three
months in jail. Massachusetts General Laws Ann. c. 272 1. Violation of the present
statute is a felony, punishable by five years in prison. We find it hard to believe that the
legislature adopted a statute carrying a five-year penalty for its possible, obviously by no
means fully effective, deterrence of the commission of a ninety-day misdemeanor."
429 F.2d at 1401. Even conceding the legislature a full measure of discretion in
fashioning means to prevent fornication, and recognizing that the State may seek to deter
prohibited conduct by punishing more severely those who facilitate than those who
actually engage in its commission, we, like the Court of Appeals, cannot believe that, in
this instance, Massachusetts has chosen to expose the aider and abetter who simply gives
away a contraceptive to
Page 405 U. S. 450
20 times the 90-day sentence of the offender himself. The very terms of the State's
criminal statutes, coupled with the de minimis effect of 21 and 21A in deterring
fornication, thus compel the conclusion that such deterrence cannot reasonably be taken
as the purpose of the ban on distribution of contraceptives to unmarried persons.
Second. Section 21A was added to the Massachusetts General Laws by Stat. 1966, c. 265,
1. The Supreme Judicial Court, in Commonwealth v. Baird, supra, held that the purpose
of the amendment was to serve the health needs of the community by regulating the
distribution of potentially harmful articles. It is plain that Massachusetts had no such
purpose in mind before the enactment of 21A. As the Court of Appeals remarked,
"Consistent with the fact that the statute was contained in a chapter dealing with 'Crimes
Against Chastity, Morality, Decency and Good Order,' it was cast only in terms of
morals. A physician was forbidden to prescribe contraceptives even when needed for the
protection of health. Commonwealth v. Gardner, 1938, 300 Mass. 372, 15 N.E.2d 222."
429 F.2d at 1401. Nor did the Court of Appeals
"believe that the legislature [in enacting 21A] suddenly reversed its field and developed
an interest in health. Rather, it merely made what it thought to be the precise
accommodation necessary to escape the Griswold ruling."
Ibid.
Again, we must agree with the Court of Appeals. If health were the rationale of 21A,
the statute would be both discriminatory and overbroad. Dissenting in Commonwealth v.
Baird, 355 Mass. at 758, 247 N.E.2d at 581, Justices Whittemore and Cutter stated that
they saw
"in 21 and 21A, read together, no public health purpose. If there is need to have a
physician prescribe (and a pharmacist dispense) contraceptives, that need is as great for
unmarried persons as for married persons.
Page 405 U. S. 451
The Court of Appeals added:"
"If the prohibition [on distribution to unmarried persons] . . . is to be taken to mean that
the same physician who can prescribe for married patients does not have sufficient skill
to protect the health of patients who lack a marriage certificate, or who may be currently
divorced, it is illogical to the point of irrationality."
429 F.2d at 1401. [Footnote 8] Furthermore, we must join the Court of Appeals in noting
that not all contraceptives are potentially dangerous. [Footnote 9] As a result, if the
Massachusetts statute were a health measure, it would not only invidiously discriminate
against the unmarried, but also be overbroad with respect to the married, a fact that the
Supreme Judicial Court itself seems to have conceded in Sturgis v. Attorney General, 358
Mass. at ___, 260 N.E.2d at 690, where it noted that
"it may well be that certain contraceptive medication and devices constitute no hazard to
health, in which event it could be argued that the statute swept too broadly in its
prohibition."
"In this posture," as the Court of
Page 405 U. S. 452
Appeals concluded,
"it is impossible to think of the statute as intended as a health measure for the unmarried,
and it is almost as difficult to think of it as so intended even as to the married."
429 F.2d at 1401.
But if further proof that the Massachusetts statute is not a health measure is necessary, the
argument of Justice Spiegel, who also dissented in Commonwealth v. Baird, 355 Mass. at
759, 247 N.E.2d at 582, is conclusive:
"It is, at best, a strained conception to say that the Legislature intended to prevent the
distribution of articles 'which may have undesirable, if not dangerous, physical
consequences.' If that was the Legislature's goal, 21 is not required"
in view of the federal and state laws already regulating the distribution of harmful
drugs. See Federal Food, Drug, and Cosmetic Act, 503, 52 Stat. 1051, as amended, 21
U.S.C. 353; Mas.Gen.Laws Ann., c. 94, 187A, as amended. We conclude,
accordingly, that, despite the statute's superficial earmarks as a health measure, health, on
the face of the statute, may no more reasonably be regarded as its purpose than the
deterrence of premarital sexual relations.
Third. If the Massachusetts statute cannot be upheld as a deterrent to fornication or as a
health measure, may it, nevertheless, be sustained simply as a prohibition on
contraception? The Court of Appeals analysis
"led inevitably to the conclusion that, so far as morals are concerned, it is
contraceptives per se that are considered immoral -- to the extent that Griswold will
permit such a declaration."
429 F.2d at 1401-1402. The Court of Appeals went on to hold, id. at 1402:
"To say that contraceptives are immoral as such, and are to be forbidden to unmarried
persons who will nevertheless persist in having intercourse, means that such persons must
risk for themselves an unwanted pregnancy, for the child, illegitimacy, and,
Page 405 U. S. 453
for society, a possible obligation of support. Such a view of morality is not only the very
mirror image of sensible legislation; we consider that it conflicts with fundamental
human rights. In the absence of demonstrated harm, we hold it is beyond the competency
of the state."
We need not, and do not, however, decide that important question in this case, because,
whatever the rights of the individual to access to contraceptives may be, the rights must
be the same for the unmarried and the married alike.
If, under Griswold, the distribution of contraceptives to married persons cannot be
prohibited, a ban on distribution to unmarried persons would be equally impermissible. It
is true that, in Griswold, the right of privacy in question inhered in the marital
relationship. Yet the marital couple is not an independent entity, with a mind and heart of
its own, but an association of two individuals, each with a separate intellectual and
emotional makeup. If the right of privacy means anything, it is the right of the individual,
married or single, to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a child. See
Stanley v. Georgia, 394 U. S. 557 (1969). [Footnote 10] See also Skinner v. Oklahoma,
Page 405 U. S. 454
316 U. S. 535 (1942); Jacobson v. Massachusetts, 197 U. S. 11, 197 U. S. 29 (1905).
On the other hand, if Griswold is no bar to a prohibition on the distribution of
contraceptives, the State could not, consistently with the Equal Protection Clause, outlaw
distribution to unmarried, but not to married, persons. In each case, the evil, as perceived
by the State, would be identical, and the underinclusion would be invidious. Mr. Justice
Jackson, concurring in Railway Express Agency v. New York, 336 U. S. 106,336 U. S.
112-113 (1949), made the point:
"The framers of the Constitution knew, and we should not forget today, that there is no
more effective practical guaranty against arbitrary and unreasonable government than to
require that the principles of law which officials would impose upon a minority must be
imposed generally. Conversely, nothing opens the door to arbitrary action so effectively
as to allow those officials to pick and choose only a few to whom they will apply
legislation, and thus to escape the political retribution that might be visited upon them if
larger numbers were affected. Courts can take no better measure to assure that laws will
be just than to require that laws be equal in operation."
Although Mr. Justice Jackson's comments had reference to administrative regulations, the
principle he affirmed has equal application to the legislation here. We hold that, by
providing dissimilar treatment for married and unmarried persons who are similarly
situated, Massachusetts
Page 405 U. S. 455
General Laws Ann., c. 272, 21 and 21A, violate the Equal Protection Clause. The
judgment of the Court of Appeals is
Affirmed.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the
consideration or decision of this case.
[Footnote 1]
The Court of Appeals below described the recipient of the foam as "an unmarried adult
woman." 429 F.2d 1398, 1399 (1970). However, there is no evidence in the record about
her marital status.
[Footnote 2]
Section 21 provides in full:
"Except as provided in section twenty-one A, whoever sells, lends, gives away, exhibits
or offers to sell, lend or give away an instrument or other article intended to be used for
self-abuse, or any drug, medicine, instrument or article whatever for the prevention of
conception or for causing unlawful abortion, or advertises the same, or writes, prints, or
causes to be written or printed a card, circular, book, pamphlet, advertisement or notice of
any kind stating when, where, how, of whom or by what means such article can be
purchased or obtained, or manufactures or makes any such article shall be punished by
imprisonment in the state prison for not more than five years or in jail or the house of
correction for not more than two and one half years or by a fine of not less than one
hundred nor more than one thousand dollars."
Section 21A provides in full:
"A registered physician may administer to or prescribe for any married person drugs or
articles intended for the prevention of pregnancy or conception. A registered pharmacist
actually engaged in the business of pharmacy may furnish such drugs or articles to any
married person presenting a prescription from a registered physician."
"A public health agency, a registered nurse, or a maternity health clinic operated by or in
an accredited hospital may furnish information to any married person as to where
professional advice regarding such drugs or articles may be lawfully obtained."
"This section shall not be construed as affecting the provisions of sections twenty and
twenty-one relative to prohibition of advertising of drugs or articles intended for the
prevention of pregnancy or conception; nor shall this section be construed so as to permit
the sale or dispensing of such drugs or articles by means of any vending machine or
similar device."
[Footnote 3]
Appellant suggests that the purpose of the Massachusetts statute is to promote marital
fidelity, as well as to discourage premarital sex. Under 21A, however, contraceptives
may be made available to married persons without regard to whether they are living with
their spouses or the uses to which the contraceptives are to be put. Plainly, the legislation
has no deterrent effect on extramarital sexual relations.
[Footnote 4]
This factor decisively distinguishes Tileston v. Ullman, 318 U. S. 44 (1943), where the
Court held that a physician lacked standing to bring an action for declaratory relief to
challenge, on behalf of his patients, the Connecticut law prohibiting the use of
contraceptives. The patients were fully able to bring their own action. Underlying the
decision was the concern that "the standards of case or controversy' in Article III of the
Constitution [not] become blurred," Griswold v. Connecticut, 381 U. S. 479, 381 U. S.
481 (1965) -- a problem that is not at all involved in this case.
[Footnote 5]
Indeed, in First Amendment cases, we have relaxed our rules of standing without regard
to the relationship between the litigant and those whose rights he seeks to assert precisely
because application of those rules would have an intolerable inhibitory effect on freedom
of speech. E.g., Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 97-98 (1940). See United
States v. Raines, 362 U. S. 17, 362 U. S. 22 (1960).
[Footnote 6]
See also Prince v. Massachusetts, 321 U. S. 158 (1944), where a custodian, in violation
of state law, furnished a child with magazines to distribute on the streets. The Court there
implicitly held that the custodian had standing to assert alleged freedom of religion and
equal protection rights of the child that were threatened in the very litigation before the
Court, and that the child had no effective way of asserting herself.
[Footnote 7]
Of course, if we were to conclude that the Massachusetts statute impinges upon
fundamental freedoms under Griswold, the statutory classification would have to be not
merely rationally related to a valid public purpose, but necessary to the achievement of a
compelling state interest. E.g., Shapiro v. Thompson, 394 U. S. 618 (1969); Loving v.
Virginia, 388 U. S. 1 (1967). But just as in Reed v. Reed, 404 U. S. 71 (1971), we do not
have to address the statute's validity under that test, because the law fails to satisfy even
the more lenient equal protection standard.
[Footnote 8]
Appellant insists that the unmarried have no right to engage in sexual intercourse, and
hence no health interest in contraception that needs to be served. The short answer to this
contention is that the same devices, the distribution of which the State purports to
regulate when their asserted purpose is to forestall pregnancy, are available without any
controls whatsoever so long as their asserted purpose is to prevent the spread of disease.
It is inconceivable that the need for health controls varies with the purpose for which the
contraceptive is to be used when the physical act in all cases is one and the same.
[Footnote 9]
The Court of Appeals stated, 429 F.2d at 1401:
"[W]e must take notice that not all contraceptive devices risk 'undesirable . . . [or]
dangerous physical consequences.' It is 200 years since Casanova recorded the ubiquitous
article which, perhaps because of the birthplace of its inventor, he termed a 'redingote
anglais.' The reputed nationality of the condom has now changed, but we have never
heard criticism of it on the side of health. We cannot think that the legislature was
unaware of it, or could have thought that it needed a medical prescription. We believe the
same could be said of certain other products."
[Footnote 10]
In Stanley, 394 U.S. at 394 U. S. 564, the Court stated:
"[A]lso fundamental is the right to be free, except in very limited circumstances, from
unwanted governmental intrusions into one's privacy."
"'The makers of our Constitution undertook to secure conditions favorable to the pursuit
of happiness. They recognized the significance of man's spiritual nature, of his feelings
and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of
life are to be found in material things. They sought to protect Americans in their beliefs,
their thoughts, their emotions and their sensations. They conferred, as against the
Government, the right to be let alone -- the most comprehensive of rights and the right
most valued by civilized man.' Olmstead v. United States, 277 U. S. 438,277 U. S.
478 (1928) (Brandeis, J., dissenting)."
"See Griswold v. Connecticut, supra; cf. NAACP v. Alabama, 357 U. S. 449, 357 U. S.
462 (1958)."
MR. JUSTICE DOUGLAS, concurring.
While I join the opinion of the Court, there is for me a narrower ground for affirming the
Court of Appeals. This to me is a simple First Amendment case, that amendment being
applicable to the States by reason of the Fourteenth. Stromberg v. California,283 U. S.
359.
Under no stretch of the law as presently stated could Massachusetts require a license for
those who desire to lecture on planned parenthood, contraceptives, the rights of women,
birth control, or any allied subject, or place a tax on that privilege. As to license taxes on
First Amendment rights we said in Murdock v. Pennsylvania, 319 U. S. 105,319 U. S. 11:
"A license tax certainly does not acquire constitutional validity because it classifies the
privileges protected by the First Amendment along with the wares and merchandise of
hucksters and peddlers, and treats them all alike. Such equality in treatment does not save
the ordinance. Freedom of press, freedom of speech, freedom of religion are in a
preferred position."
We held in Thomas v. Collins, 323 U. S. 516, that a person speaking at a labor union rally
could not be required to register or obtain a license:
"As a matter of principle a requirement of registration in order to make a public speech
would seem generally incompatible with an exercise of the rights
Page 405 U. S. 456
of free speech and free assembly. Lawful public assemblies, involving no element of
grave and immediate danger to an interest the State is entitled to protect, are not
instruments of harm which require previous identification of the speakers. And the right
either of workmen or of unions under these conditions to assemble and discuss their own
affairs is as fully protected by the Constitution as the right of businessmen, farmers,
educators, political party members or others to assemble and discuss their affairs and to
enlist the support of others."
"* * * *"
". . . If one who solicits support for the cause of labor may be required to register as a
condition to the exercise of his right to make a public speech, so may he who seeks to
rally support for any social, business, religious or political cause. We think a requirement
that one must register before he undertakes to make a public speech to enlist support for a
lawful movement is quite incompatible with the requirements of the First Amendment."
Id. at 323 U. S. 539, 323 U. S. 540.
Baird addressed an audience of students and faculty at Boston University on the subject
of birth control and overpopulation. His address was approximately one hour in length,
and consisted of a discussion of various contraceptive devices displayed by means of
diagrams on two demonstration boards, as well as a display of contraceptive devices in
their original packages. In addition, Baird spoke of the respective merits of various
contraceptive devices; overpopulation in the world; crises throughout the world due to
overpopulation; the large number of abortions performed on unwed mothers; and quack
abortionists and the potential harm to women resulting from abortions performed by
quack abortionists. Baird also urged members of the audience to petition the
Massachusetts Legislature and to make known their feelings
Page 405 U. S. 457
with regard to birth control laws in order to bring about a change in the laws. At the close
of the address, Baird invited members of the audience to come to the stage and help
themselves to the contraceptive articles. We do not know how many accepted Baird's
invitation. We only know that Baird personally handed one woman a package of Emko
Vaginal Foam. He was then arrested and indicted (1) for exhibiting contraceptive devices
and (2) for giving one such device away. The conviction for the first offense was
reversed, the Supreme Judicial Court of Massachusetts holding that the display of the
articles was essential to a graphic representation of the lecture. But the conviction for the
giving away of one article was sustained. 355 Mass. 746, 247 N.E.2d 574. The case
reaches us by federal habeas corpus.
Had Baird not "given away" a sample of one of the devices whose use he advocated,
there could be no question about the protection afforded him by the First Amendment. A
State may not "contract the spectrum of available knowledge." Griswold v.
Connecticut, 381 U. S. 479, 381 U. S. 482. See also Thomas v. Collins, supra; Pierce v.
Society of Sisters, 268 U. S. 510; Meyer v. Nebraska, 262 U. S. 390. However noxious
Baird's ideas might have been to the authorities, the freedom to learn about them, fully to
comprehend their scope and portent, and to weigh them against the tenets of the
"conventional wisdom," may not be abridged. Terminiello v. Chicago, 337 U. S. 1. Our
system of government requires that we have faith in the ability of the individual to decide
wisely, if only he is fully apprised of the merits of a controversy.
"Freedom of discussion, if it would fulfill its historic function in this nation, must
embrace all issues about which information is needed or appropriate to enable the
members of society to cope with the exigencies of their period."
Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 102.
The teachings of Baird and those of Galileo might be
Page 405 U. S. 458
of a different order, but the suppression of either is equally repugnant.
As Milton said in the Areopagitica,"Give me the liberty to know, to utter, and to argue
freely according to conscience, above all liberties."
It is said that only Baird's conduct is involved, and United States v. O'Brien, 391 U. S.
367, is cited. That case involved a registrant under the Selective Service Act burning his
Selective Service draft card. When prosecuted for that act, he defended his conduct as
"symbolic speech." The Court held it was not.
Whatever may be thought of that decision on the merits, [Footnote 2/1] O'Brien is not
controlling here. The distinction between "speech" and "conduct" is a valid one insofar as
it helps to determine in a particular case whether the purpose of the activity was to aid in
the communication of ideas and whether the form of the communication so interferes
with the rights of others that reasonable regulations may be imposed. [Footnote 2/2] See
Public Utilities Comm'n v. Pollak, 343 U. S. 451, 343 U. S. 467(DOUGLAS, J.,
dissenting).
Page 405 U. S. 459
Thus, excessive noise might well be "conduct" -- a form of pollution -- which can be
made subject to precise, narrowly drawn regulations. See Adderley v. Florida, 385 U. S.
39, 385 U. S. 54 (DOUGLAS, J., dissenting). But
"this Court has repeatedly stated, [First Amendment] rights are not confined to verbal
expression. They embrace appropriate types of action. . . ."
Brown v. Louisiana, 383 U. S. 131, 383 U. S. 141-142.
Baird gave an hour's lecture on birth control, and, as an aid to understanding the ideas
which he was propagating, he handed out one sample of one of the devices whose use he
was endorsing. A person giving a lecture on coyote-getters would certainly improve his
teaching technique if he passed one out to the audience; and he would be protected in
doing so, unless, of course, the device was loaded and ready to explode, killing or
injuring people. The same holds true in my mind for mousetraps, spray guns, or any other
article not dangerous per se on which speakers give educational lectures.
It is irrelevant to the application of these principles that Baird went beyond the giving of
information about birth control and advocated the use of contraceptive articles. The First
Amendment protects the opportunity to persuade to action whether that action be unwise
or immoral, or whether the speech incites to action. See, e.g., Brandenburg v. Ohio, 395
U. S. 444; Edwards v. South Carolina, 372 U. S. 229; Terminiello v. Chicago, supra.
In this case, there was not even incitement to action. [Footnote 2/3] There is no evidence
or finding that Baird intended that the young lady take the foam home with her when he
handed it to her, or that she would not have examined the
Page 405 U. S. 460
article and then returned it to Baird, had he not been placed under arrest immediately
upon handing the article over. [Footnote 2/4]
First Amendment rights are not limited to verbal expression. [Footnote 2/5] The right to
petition often involves the right to walk. The right of assembly may mean pushing or
jostling. Picketing involves physical activity, as well as a display of a sign. A sit-in can
be a quiet, dignified protest that has First Amendment protection even though no speech
is involved, as we held in Brown v. Louisiana, supra. Putting contraceptives on display is
certainly an aid to speech and discussion. Handing an article under discussion to a
member of the audience is a technique known to all teachers, and is commonly used. A
handout may be on such a scale as to smack of a vendor's marketing scheme. But passing
one article to an audience is merely a projection of the visual aid, and should be a
permissible adjunct of free speech. Baird was not making a prescription, nor purporting
to give medical advice. Handing out the article was not even a suggestion that the lady
use it. At most, it suggested that she become familiar with the product line.
I do not see how we can have a Society of the Dialogue, which the First Amendment
envisages, if time-honored teaching techniques are barred to those who give educational
lectures.
[Footnote 2/1]
I have earlier expressed my reasons for believing that the O'Brien decision was not
consistent with First Amendment rights. See Brandenburg v. Ohio, 395 U. S. 444, 395 U.
S. 455 (concurring opinion).
[Footnote 2/2]
In Giboney v. Empire Storage Co., 336 U. S. 490, the Court upheld a state court
injunction against peaceful picketing carried on in violation of a state "anti-restraint-of-
trade" law. Giboney, however, is easily distinguished from the present case. Under the
circumstances there present,
"There was clear danger, imminent and immediate, that, unless restrained, appellants
would succeed in making [state antitrust] policy a dead letter. . . . They were exercising
their economic power, together with that of their allies, to compel Empire to abide by
union, rather than by state, regulation of trade."
Id. at 336 U. S. 503 (footnote omitted; emphasis supplied). There is no such coercion in
the instant case, nor is there a similar frustration of state policy, see text at n. 4,infra. For
an analysis of the state policies underlying the Massachusetts statute which Baird was
convicted of having violated, see Dienes, The Progeny of Comstockery -- Birth Control
Laws Return to Court, 21 Am.U.L.Rev. 1, 3-44 (1971).
[Footnote 2/3]
Even under the restrictive meaning which the Court has given the First Amendment, as
applied to the States by the Fourteenth, advocacy of law violation is permissible "except
where such advocacy is directed to inciting or producing imminent lawless action, and is
likely to incite or produce such action." Brandenburg v. Ohio, supra, n. 1, at 395 U. S.
447.
[Footnote 2/4]
This factor alone would seem to distinguish O'Brien, supra, as that case turned on the
Court's judgment that O'Brien's "conduct" frustrated a substantial governmental interest.
[Footnote 2/5]
For a partial collection of cases involving action that comes under First Amendment
protection see Brandenburg v. Ohio, supra, n. 1, at 405 U. S. 455-456 (concurring
opinion).
MR. JUSTICE WHITE, with whom MR. JUSTICE BLACKMUN joins, concurring in
the result.
In Griswold v. Connecticut, 381 U. S. 479 (1965), we reversed criminal convictions for
advising married persons
Page 405 U. S. 461
with respect to the use of contraceptives. As there applied, the Connecticut law, which
forbade using contraceptives or giving advice on the subject, unduly invaded a zone of
marital privacy protected by the Bill of Rights. The Connecticut law did not regulate the
manufacture or sale of such products, and we expressly left open any question concerning
the permissible scope of such legislation. 381 U.S. at 381 U. S. 485.
Chapter 272, 21, of the Massachusetts General Laws makes it a criminal offense to
distribute, sell, or give away any drug, medicine, or article for the prevention of
conception. Section 21A excepts from this prohibition registered physicians who
prescribe for and administer such articles to married persons and registered pharmacists
who dispense on medical prescription. [Footnote 3/1]
Page 405 U. S. 462
Appellee Baird was indicted for giving away Emko Vaginal Foam, a "medicine and
article for the prevention of conception. . . ." [Footnote 3/2] The State did not purport to
charge or convict Baird for distributing to an unmarried person. No proof was offered as
to the marital status of the recipient. The gravamen of the offense charged was that Baird
had no license, and therefore no authority to distribute to anyone. As the Supreme
Judicial Court of Massachusetts noted, the constitutional validity of Baird's conviction
rested upon his lack of status as a "distributor, and not . . . the marital status of the
recipient." Commonwealth v. Baird, 355 Mass. 746, 753, 247 N.E.2d 574, 578 (1969).
The Federal District Court was of the same view. [Footnote 3/3]
Page 405 U. S. 463
I assume that a State's interest in the health of its citizens empowers it to restrict to
medical channels the distribution of products whose use should be accompanied by
medical advice. I also do not doubt that various contraceptive medicines and articles are
properly available only on prescription, and I therefore have no difficulty with the
Massachusetts court's characterization of the statute at issue here as expressing
"a legitimate interest in preventing the distribution of articles designed to prevent
conception which may have undesirable, if not dangerous, physical consequences."
Id. at 753, 247 N.E.2d at 578. Had Baird distributed a supply of the so-called "pill," I
would sustain his conviction under this statute. [Footnote 3/4] Requiring a prescription to
obtain potentially dangerous contraceptive material may place a substantial burden upon
the right recognized in Griswold, but that burden is justified by a strong state interest, and
does not, as did the statute at issue in Griswold, sweep unnecessarily broadly, or seek "to
achieve its goals by means having a maximum destructive impact upon" a protected
relationship. Griswold v. Connecticut, 381 U.S. at 381 U. S. 485.
Baird, however, was found guilty of giving away vaginal foam. Inquiry into the validity
of this conviction does not come to an end merely because some contraceptives are
harmful and their distribution may be restricted. Our general reluctance to question a
State's judgment on matters of public health must give way where, as here, the restriction
at issue burdens the constitutional
Page 405 U. S. 464
rights of married persons to use contraceptives. In these circumstances, we may not
accept on faith the State's classification of a particular contraceptive as dangerous to
health. Due regard for protecting constitutional rights requires that the record contain
evidence that a restriction on distribution of vaginal foam is essential to achieve the
statutory purpose, or the relevant facts concerning the product must be such as to fall
within the range of judicial notice.
Neither requirement is met here. Nothing in the record even suggests that the distribution
of vaginal foam should be accompanied by medical advice in order to protect the user's
health. Nor does the opinion of the Massachusetts court or the State's brief filed here
marshal facts demonstrating that the hazards of using vaginal foam are common
knowledge, or so incontrovertible that they may be noticed judicially. On the contrary,
the State acknowledges that Emko is a product widely available without prescription.
Given Griswold v. Connecticut, supra, and absent proof of the probable hazards of using
vaginal foam, we could not sustain appellee's conviction had it been for selling or giving
away foam to a married person. Just as in Griswold, where the right of married persons to
use contraceptives was "diluted or adversely affected" by permitting a conviction for
giving advice as to its exercise, id. at 381 U. S. 481, so, here, to sanction a medical
restriction upon distribution of a contraceptive not proved hazardous to health would
impair the exercise of the constitutional right.
That Baird could not be convicted for distributing Emko to a married person disposes of
this case. Assuming, arguendo, that the result would be otherwise had the recipient been
unmarried, nothing has been placed in the record to indicate her marital status. The State
has maintained that marital status is irrelevant because an unlicensed person cannot
legally dispense vaginal foam
Page 405 U. S. 465
either to married or unmarried persons. This approach is plainly erroneous, and requires
the reversal of Baird's conviction, for, on the facts of this case, it deprives us of knowing
whether Baird was, in fact, convicted for making a constitutionally protected distribution
of Emko to a married person.
The principle established in Stromberg v. California, 283 U. S. 359 (1931), and
consistently adhered to is that a conviction cannot stand where the "record fail[s] to prove
that the conviction was not founded upon a theory which could not constitutionally
support a verdict." Street v. New York, 394 U. S. 576, 394 U. S. 586(1969). To uphold a
conviction even
"though we cannot know that it did not rest on the invalid constitutional ground . . .
would be to countenance a procedure which would cause a serious impairment of
constitutional rights."
Williams v. North Carolina, 317 U. S. 287, 317 U. S. 292 (1942).
Because this case can be disposed of on the basis of settled constitutional doctrine, I
perceive no reason for reaching the novel constitutional question whether a State may
restrict or forbid the distribution of contraceptives to the unmarried. Cf. Ashwander v.
Tennessee Valley Authority, 297 U. S. 288, 297 U. S. 345-348 (1936) (Brandeis, J.,
concurring).
[Footnote 3/1]
Section 21 provides as follows:
"Except as provided in section twenty-one A, whoever sells, lends, gives away, exhibits
or offers to sell, lend or give away an instrument or other article intended to be used for
self-abuse, or any drug, medicine; instrument or article whatever for the prevention of
conception or for causing unlawful abortion, or advertises the same, or writes, prints, or
causes to be written or printed a card; circular, book, pamphlet, advertisement or notice
of any kind stating when, where, how, of whom or by what means such article can be
purchased or obtained, or manufactures or makes any such article shall be punished by
imprisonment in the state prison for not more than five years or in jail or the house of
correction for not more than two and one half years or by a fine of not less than one
hundred nor more than one thousand dollars."
Section 21A makes these exceptions:
"A registered physician may administer to or prescribe for any married person drugs or
articles intended for the prevention of pregnancy or conception. A registered pharmacist
actually engaged in the business of pharmacy may furnish such drugs or articles to any
married person presenting a prescription from a registered physician."
"A public health agency, a registered nurse, or a maternity health clinic operated by or in
an accredited hospital may furnish information to any married person as to where
professional advice regarding such drugs or articles may be lawfully obtained."
"This section shall not be construed as affecting the provisions of sections twenty and
twenty-one relative to prohibition of advertising of drugs or articles intended for the
prevention of pregnancy or conception; nor shall this section be construed so as to permit
the sale or dispensing of such drugs or articles by means of any vending machine or
similar device."
[Footnote 3/2]
The indictment states:
"The Jurors for the Commonwealth of Massachusetts on their oath present that William
R. Baird, on the sixth day of April, in the year of our Lord one thousand nine hundred
and sixty-seven, did unlawfully give away a certain medicine and article for the
prevention of conception, to wit: Emko Vaginal Foam, the giving away of the said
medicine and article by the said William R. Baird not being in accordance with, or
authorized or permitted by, the provisions of Section 21A of Chapter 272, of the General
Laws of the said Commonwealth."
[Footnote 3/3]
"Had 21A authorized registered physicians to administer or prescribe contraceptives for
unmarried, as well as for married, persons, the legal position of the petitioner would not
have been in any way altered. Not being a physician, he would still have been prohibited
by 21 from 'giving away' the contraceptive."
310 F.Supp. 951, 954 (Mass.1970).
[Footnote 3/4]
The Food and Drug Administration has made a finding that birth control pills pose
possible hazards to health. It therefore restricts distribution and receipt of such products
in interstate commerce to properly labeled packages that must be sold pursuant to a
prescription. 21 CFR 130.45. A violation of this law is punishable by imprisonment for
one year, a fine of not more than $10,000, or both. 21 U.S.C. 331, 333.
MR. CHIEF JUSTICE BURGER, dissenting.
The judgment of the Supreme Judicial Court of Massachusetts in sustaining appellee's
conviction for dispensing medicinal material without a license seems eminently correct to
me, and I would not disturb it. It is undisputed that appellee is not a physician or
pharmacist, and was prohibited under Massachusetts law from dispensing contraceptives
to anyone, regardless of marital status. To my mind, the validity of this restriction on
dispensing medicinal substances is the only issue before the Court,
Page 405 U. S. 466
and appellee has no standing to challenge that part of the statute restricting the persons to
whom contraceptives are available. There is no need to labor this point, however, for
everyone seems to agree that, if Massachusetts has validly required, as a health measure,
that all contraceptives be dispensed by a physician or pursuant to a physician's
prescription, then the statutory distinction based on marital status has no bearing on this
case. United States v. Raines, 362 U. S. 17, 362 U. S. 21 (1960).
The opinion of the Court today brushes aside appellee's status as an unlicensed layman by
concluding that the Massachusetts Legislature was not really concerned with the
protection of health when it passed this statute. MR. JUSTICE WHITE acknowledges the
statutory concern with the protection of health, but finds the restriction on distributors
overly broad because the State has failed to adduce facts showing the health hazards of
the particular substance dispensed by appellee as distinguished from other contraceptives.
MR. JUSTICE DOUGLAS' concurring opinion does not directly challenge the power of
Massachusetts to prohibit laymen from dispensing contraceptives, but considers that
appellee, rather than dispensing the substance, was resorting to a "time-honored teaching
technique" by utilizing a "visual aid" as an adjunct to his protected speech. I am puzzled
by this third characterization of the case. If the suggestion is that appellee was merely
displaying the contraceptive material without relinquishing his ownership of it, then the
argument must be that the prosecution failed to prove that appellee had "given away" the
contraceptive material. But appellee does not challenge the sufficiency of the evidence,
and himself summarizes the record as showing that, "at the close of his lecture, he invited
members of the audience . . . to come and help themselves." On the other hand, if the
concurring opinion means that the First Amendment protects the distribution
Page 405 U. S. 467
of all articles "not dangerous per se" when the distribution is coupled with some form of
speech, then I must confess that I have misread certain cases in the area. See, e.g., United
States v. O'Brien, 391 U. S. 367, 391 U. S. 376 (1968); Cox v. Louisiana, 379 U. S.
536, 379 U. S. 555 (1965); Giboney v. Empire Storage Co., 336 U. S. 490, 336 U. S.
502 (1949).
My disagreement with the opinion of the Court and that of MR. JUSTICE WHITE goes
far beyond mere puzzlement, however, for these opinions seriously invade the
constitutional prerogatives of the States, and regrettably hark back to the heyday of
substantive due process.
In affirming appellee's conviction, the highest tribunal in Massachusetts held that the
statutory requirement that contraceptives be dispensed only through medical channels
served the legitimate interest of the State in protecting the health of its citizens. The Court
today blithely hurdles this authoritative state pronouncement and concludes that the
statute has no such purpose. Three basic arguments are advanced: first, since the
distribution of contraceptives was prohibited as a moral matter in Massachusetts prior to
1966, it is impossible to believe that the legislature was concerned with health when it
lifted the complete ban, but insisted on medical supervision. I fail to see why the
historical predominance of an unacceptable legislative purpose makes incredible the
emergence of a new and valid one. [Footnote 4/1] See McGowan
Page 405 U. S. 468
v. Maryland, 366 U. S. 420, 366 U. S. 445-449 (1961). The second argument, finding its
origin in a dissenting opinion in the Supreme Judicial Court of Massachusetts, rejects a
health purpose because,
"[i]f there is need to have a physician prescribe . . . contraceptives, that need is as great
for unmarried persons as for married persons."
355 Mass. 746, 758, 247 N.E.2d 574, 581. This argument confuses the validity of the
restriction on distributors with the validity of the further restriction on distributees, a part
of the statute not properly before the Court. Assuming the legislature too broadly
restricted the class of persons who could obtain contraceptives, it hardly follows that it
saw no need to protect the health of all persons to whom they are made available. Third,
the Court sees no health purpose underlying the restriction on distributors, because other
state and federal laws regulate the distribution of harmful drugs. I know of no rule that all
enactments relating to a particular purpose must be neatly consolidated in one package in
the statute books, for, if so, the United States Code will not pass muster. I am unable to
draw any inference as to legislative purpose from the fact that the restriction on
dispensing contraceptives was not codified with other statutory provisions regulating the
distribution of medicinal substances. And the existence of nonconflicting, nonpreemptive
federal laws is simply without significance in judging the validity or purpose of a state
law on the same subject matter.
It is possible, of course, that some members of the Massachusetts Legislature desired
contraceptives to be dispensed only through medical channels in order to minimize their
use, rather than to protect the health of their users, but I do not think it is the proper
function of this Court to dismiss, as dubious, a state court's explication of a state statute
absent overwhelming and irrefutable reasons for doing so.
Page 405 U. S. 469
MR. JUSTICE WHITE, while acknowledging a valid legislative purpose of protecting
health, concludes that the State lacks power to regulate the distribution of the
contraceptive involved in this case as a means of protecting health. [Footnote 4/2] The
opinion grants that appellee's conviction would be valid if he had given away a
potentially harmful substance, but rejects the State's placing this particular contraceptive
in that category. So far as I am aware, this Court has never before challenged the police
power of a State to protect the public from the risks of possibly spurious and deleterious
substances sold within its borders. Moreover, a statutory classification is not invalid
"simply because some innocent articles or transactions may be found within the
proscribed class. The inquiry must be whether, considering the end in view, the statute
passes the bounds of reason and assumes the character of a merely arbitrary fiat."
Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192, 226 U. S. 204 (1912). But since the
Massachusetts statute seeks to protect health by regulating contraceptives, the opinion
invokes Griswold v. Connecticut, 381 U. S. 479 (1965), and puts the statutory
classification to an unprecedented test: either the record must contain evidence
supporting the classification or the health hazards of the particular contraceptive must be
judicially noticeable. This is indeed a novel constitutional doctrine, and, not surprisingly,
no authority is cited for it.
Since the potential harmfulness of this particular medicinal substance has never been
placed in issue in the
Page 405 U. S. 470
state or federal courts, the State can hardly be faulted for its failure to build a record on
this point. And it totally mystifies me why, in the absence of some evidence in the record,
the factual underpinnings of the statutory classification must be "incontrovertible," or a
matter of "common knowledge."
The actual hazards of introducing a particular foreign substance into the human body are
frequently controverted, and I cannot believe that unanimity of expert opinion is a
prerequisite to a State's exercise of its police power, no matter what the subject matter of
the regulation. Even assuming no present dispute among medical authorities, we cannot
ignore that it has become commonplace for a drug or food additive to be universally
regarded as harmless on one day and to be condemned as perilous on the next. It is
inappropriate for this Court to overrule a legislative classification by relying on the
present consensus among leading authorities. The commands of the Constitution cannot
fluctuate with the shifting tides of scientific opinion.
Even if it were conclusively established once and for all that the product dispensed by
appellee is not actually or potentially dangerous in the somatic sense, I would still be
unable to agree that the restriction on dispensing it falls outside the State's power to
regulate in the area of health. The choice of a means of birth control, although a highly
personal matter, is also a health matter in a very real sense, and I see nothing arbitrary in
a requirement of medical supervision. [Footnote 4/3] It is generally acknowledged that
contraceptives vary in degree of effectiveness
Page 405 U. S. 471
and potential harmfulness. [Footnote 4/4] There may be compelling health reasons for
certain women to choose the most effective means of birth control available, no matter
how harmless the less effective alternatives. [Footnote 4/5] Others might be advised not
to use a highly effective means of contraception because of their peculiar susceptibility to
an adverse side effect. [Footnote 4/6] Moreover, there may be information known to the
medical profession that a particular brand of contraceptive is to be preferred or avoided,
or that it has not been adequately tested. Nonetheless, the concurring opinion would hold,
as a constitutional matter, that a State must allow someone without medical training the
same power to distribute this medicinal substance as is enjoyed by a physician.
It is revealing, I think, that those portions of the majority and concurring opinions
rejecting the statutory limitation on distributors rely on no particular provision of the
Constitution. I see nothing in the Fourteenth Amendment or any other part of the
Constitution
Page 405 U. S. 472
that even vaguely suggests that these medicinal forms of contraceptives must be available
in the open market. I do not challenge Griswold v. Connecticut, supra, despite its tenuous
moorings to the text of the Constitution, but I cannot view it as controlling authority for
this case. The Court was there confronted with a statute flatly prohibiting the use of
contraceptives, not one regulating their distribution. I simply cannot believe that the
limitation on the class of lawful distributors has significantly impaired the right to use
contraceptives in Massachusetts. By relying on Griswold in the present context, the Court
has passed beyond the penumbras of the specific guarantees into the uncircumscribed
area of personal predilections.
The need for dissemination of information on birth control is not impinged in the slightest
by limiting the distribution of medicinal substances to medical and pharmaceutical
channels, as Massachusetts has done by statute. The appellee has succeeded, it seems, in
cloaking his activities in some new permutation of the First Amendment, although his
conviction rests, in fact and law, on dispensing a medicinal substance without a license. I
am constrained to suggest that, if the Constitution can be strained to invalidate the
Massachusetts statute underlying appellee's conviction, we could quite as well employ it
for the protection of a "curbstone quack," reminiscent of the "medicine man" of times
past, who attracted a crowd of the curious with a soapbox lecture and then plied them
with "free samples" of some unproved remedy. Massachusetts presumably outlawed such
activities long ago, but today's holding seems to invite their return.
[Footnote 4/1]
The Court places some reliance on the opinion of the Supreme Judicial Court of
Massachusetts in Sturgis v. Attorney General, 358 Mass. ___, 260 N.E.2d 687 (1970), to
show that 21A is intended to regulate morals, rather than public health. In Sturgis,the
state court rejected a challenge by a group of physicians to that part of the statute
prohibiting the distribution of contraceptives to unmarried women. The court accepted
the State's interest in "regulating the private sexual lives of single persons," that interest
being expressed in the restriction on distributees. Id. at ___, 260 N.E.2d at 690. The
purpose of the restriction on distributors was not in issue.
[Footnote 4/2]
The opinion of the Court states, in passing, that, if the restriction on distributors were, in
fact, intended as a health measure, it would be overly broad. Since the Court does not
develop this argument in detail, my response is addressed solely to the reasoning in the
opinion of MR. JUSTICE WHITE, concurring in the result.
[Footnote 4/3]
For general discussions of the need for medical supervision before choosing a means of
birth control, see Manual of Family Planning and Contraceptive Practice 47-53 (M.
Calderone ed.1970); Advanced Concepts in Contraception 22-24 (F. Hoffman & R.
Kleinman ed.1968).
[Footnote 4/4]
See U.S. Commission on Population Growth and the American Future, Population and
the American Future, pt. II, pp. 38-39 (Mar. 16, 1972); Manual of Family
Planning,supra, at 268-274, 316, 320, 342, 346; Jaffe; Toward the Reduction of
Unwanted Pregnancy, 174 Science 119, 121 (Oct. 8, 1971); G. Hardin, Birth Control 128
(1970); E. Havemann, Birth Control (1967). The contraceptive substance dispensed by
appellee, vaginal foam, is thought to be between 70% and 80%
effective. See Jaffe, supra, at 121; Dingle & Tietze, Comparative Study of Three
Contraceptive Methods, 85 Amer.J.Obst. & Gyn. 1012, 1021 (1963). The birth control
pill, by contrast, is thought to be better than 99% effective. See Havemann, Birth
Control, supra.
[Footnote 4/5]
See Perkin, Assessment of Reproductive Risk in Nonpregnant Women -- A Guide to
Establishing Priorities for Contraceptive Care, 101 Amer.J.Obst. & Gyn. 709 (1968).
[Footnote 4/6]
See Manual of Family Planning, supra, at 301, 332-333, 336-340.
Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 204819 April 8, 2014
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in
behalf of their minor children, LUCIA CARLOS IMBONG and BERNADETTE
CARLOS IMBONG and MAGNIFICAT CHILD DEVELOPMENT CENTER,
INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B.
ABAD, Secretary, Department of Budget and Management, HON. ENRIQUE T.
ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education, Culture and Sports and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI],
represented by its President, Maria Concepcion S. Noche, Spouses Reynaldo S.
Luistro & Rosie B . Luistro, Jose S. Sandejas & Elenita S.A. Sandejas, Arturo M.
Gorrez & Marietta C. Gorrez, Salvador S. Mante, Jr. & Hazeleen L. Mante,
Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio Racho & Traquilina
Racho, F emand Antonio A. Tansingco & Carol Anne C. Tansingco for themselves
and on behalf of their minor children, Therese Antonette C. Tansingco, Lorenzo
Jose C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco
& Juan Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for
themselves and on behalf of their minor children, Ramon Carlos Z. Araneta &
Maya Angelica Z. Araneta, Spouses Renato C. Castor & Mildred C. Castor for
themselves and on behalf of their minor children, Renz Jeffrey C. Castor, Joseph
Ramil C. Castor, John Paul C. Castor & Raphael C. Castor, Spouses Alexander R.
Racho & Zara Z. Racho for themselves and on behalf of their minor children
Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho,
Spouses Alfred R. Racho & Francine V. Racho for themselves and on behalf of their
minor children Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, Chessie
Racho & Laura Racho, Spouses David R. Racho & Armilyn A. Racho for
themselves and on behalf of their minor child Gabriel Racho, Mindy M. Juatas and
on behalf of her minor children Elijah Gerald Juatas and Elian Gabriel Juatas,
Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws & Katrina R.
Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA,
Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education, Culture and Sports, HON. CORAZON SOLIMAN,
Secretary, Department of Social Welfare and Development, HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and Management, HON.
ARSENIO M. BALISACAN, Socio-Economic Planning Secretary and NEDA
Director-General, THE PHILIPPINE COMMISSION ON WOMEN, represented
by its Chairperson, Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH
INSURANCE CORPORATION, represented by its President Eduardo Banzon,
THE LEAGUE OF PROVINCES OF THE PHILIPPINES, represented by its
President Alfonso Umali, THE LEAGUE OF CITIES OF THE PHILIPPINES,
represented by its President Oscar Rodriguez, and THE LEAGUE OF
MUNICIPALITIES OF THE PHILIPPINES, represented by its President Donato
Marcos, Respondents.
x---------------------------------x
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S.
AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B.
ABAD, Secretary, Department of Budget and Management; HON. ENRIQUE T.
ONA, Secretary, Department of Education; and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B.
Lumicao, M.D., as President and in his personal capacity, ROSEVALE
FOUNDATION INC., represented by Dr. Rodrigo M. Alenton, M.D., as member of
the school board and in his personal capacity, ROSEMARIE R. ALENTON,
IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd., ANTHONY G. NAGAC,
EARL ANTHONY C. GAMBE and MARLON I. YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive Secretary,
HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management;
HON. ENRIQUE T. ONA, Secretary, Department of Health; HON. ARMIN A.
LUISTRO, Secretary, Department of Education and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
HON. SENATE PRESIDENT, HON. SPEAKER OF THE HOUSE OF
REPRESENTATIVES and HON. SOLICITOR GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE
OF THE PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO,
DBM SECRETARY FLORENCIO B. ABAD, DILG SECRETARY MANUELA.
ROXAS II, DECS SECRETARY ARMIN A. LUISTRO, Respondents.
x---------------------------------x
G.R. No. 205138
PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented
by its National President, Atty. Ricardo M . Ribo, and in his own behalf, Atty. Lino
E.A. Dumas, Romeo B. Almonte, Osmundo C. Orlanes, Arsenio Z. Menor, Samuel
J. Yap, Jaime F. Mateo, Rolly Siguan, Dante E. Magdangal, Michael Eugenio O.
Plana, Bienvenido C. Miguel, Jr., Landrito M. Diokno and Baldomero
Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B.
ABAD, Secretary, Department of Budget and Management, HON. ENRIQUE T.
ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education, HON. MANUELA. ROXAS II, Secretary, Department of
Interior and Local Government, HON. CORAZON J. SOLIMAN, Secretary,
Department of Social Welfare and Development, HON. ARSENIO BALISACAN,
Director-General, National Economic and Development Authority, HON.
SUZETTE H. LAZO, Director-General, Food and Drugs Administration, THE
BOARD OF DIRECTORS, Philippine Health Insurance Corporation, and THE
BOARD OF COMMISSIONERS, Philippine Commission on Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T.
DOMINGO, M.D., AND JOSEPHINE MILLADO-LUMITAO, M.D., collectively
known as Doctors For Life, and ANTHONY PEREZ, MICHAEL ANTHONY G.
MAPA, CARLOS ANTONIO PALAD, WILFREDO JOSE, CLAIRE NAVARRO,
ANNA COSIO, and GABRIEL DY LIACCO collectively known as Filipinos For
Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B.
ABAD, Secretary of the Department of Budget and Management; HON. ENRIQUE
T. ONA, Secretary of the Department of Health; HON. ARMIN A. LUISTRO,
Secretary of the Department of Education; and HON. MANUELA. ROXAS II,
Secretary of the Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F.
PAGUIA, for themselves, their Posterity, and the rest of Filipino
posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito,
as Executive Director, and in her personal capacity, JOSELYN B. BASILIO,
ROBERT Z. CORTES, ARIEL A. CRISOSTOMO, JEREMY I. GATDULA,
CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY, WINSTON CONRAD B.
PADOJINOG, RUFINO L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive Secretary,
HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management,
HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education and HON. MANUEL A. ROXAS
II, Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 206355
MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA,
ATTY. CITA BORROMEO-GARCIA, STELLAACEDERA, ATTY. BERTENI
CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY,
DEPARTMENT OF HEALTH, DEPARTMENT OF EDUCATION, Respondents.
x---------------------------------x
G.R. No. 207111
JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B.
LUMICAO, JOSEPH MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS and
LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
ABAD, Secretary, Department of Budget and Management, HON. ENRIQUE T.
ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education, Culture and Sports and HON. MANUEL A. ROXAS II,
Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS
ARTADI SARMIENTO AND FRANCESCA ISABELLE BESINGA-SARMIENTO,
AND SPOUSES LUIS FRANCIS A. RODRIGO, JR. and DEBORAH MARIE
VERONICA N. RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B.
ABAD, Secretary, Department of Budget and Management, HON. ENRIQUE T.
ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education, Culture and Sports and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA,
Secretary of the Department of Health, and HON. ARMIN A. LUISTRO,Secretary
of the Department of Budget and Management,Respondents.
D E C I S I O N
MENDOZA, J .:
Freedom of religion was accorded preferred status by the framers of our fundamental law.
And this Court has consistently affirmed this preferred status, well aware that it is
"designed to protect the broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs , and to live as he believes he
ought to live, consistent with the liberty of others and with the common good."
1

To this day, poverty is still a major stumbling block to the nation's emergence as a
developed country, leaving our people beleaguered in a state of hunger, illiteracy and
unemployment. While governmental policies have been geared towards the revitalization
of the economy, the bludgeoning dearth in social services remains to be a problem that
concerns not only the poor, but every member of society. The government continues to
tread on a trying path to the realization of its very purpose, that is, the general welfare of
the Filipino people and the development of the country as a whole. The legislative
branch, as the main facet of a representative government, endeavors to enact laws and
policies that aim to remedy looming societal woes, while the executive is closed set to
fully implement these measures and bring concrete and substantial solutions within the
reach of Juan dela Cruz. Seemingly distant is the judicial branch, oftentimes regarded as
an inert governmental body that merely casts its watchful eyes on clashing stakeholders
until it is called upon to adjudicate. Passive, yet reflexive when called into action, the
Judiciary then willingly embarks on its solemn duty to interpret legislation vis-a-vis the
most vital and enduring principle that holds Philippine society together - the supremacy
of the Philippine Constitution.
Nothing has polarized the nation more in recent years than the issues of population
growth control, abortion and contraception. As in every democratic society, diametrically
opposed views on the subjects and their perceived consequences freely circulate in
various media. From television debates
2
to sticker campaigns,
3
from rallies by socio-
political activists to mass gatherings organized by members of the clergy
4
- the clash
between the seemingly antithetical ideologies of the religious conservatives and
progressive liberals has caused a deep division in every level of the society. Despite calls
to withhold support thereto, however, Republic Act (R.A.) No. 10354, otherwise known
as the Responsible Parenthood and Reproductive Health Act of 2012 (RH Law), was
enacted by Congress on December 21, 2012.
Shortly after the President placed his imprimatur on the said law, challengers from
various sectors of society came knocking on the doors of the Court, beckoning it to wield
the sword that strikes down constitutional disobedience. Aware of the profound and
lasting impact that its decision may produce, the Court now faces the iuris controversy, as
presented in fourteen (14) petitions and two (2) petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,
5
filed by spouses Attys. James M.
Imbong and Lovely Ann C. Imbong, in their personal capacities as citizens,
lawyers and taxpayers and on behalf of their minor children; and the Magnificat
Child Leaming Center, Inc., a domestic, privately-owned educational institution
(Jmbong);
(2) Petition for Prohibition,
6
filed by the Alliance for the Family Foundation
Philippines, Inc., through its president, Atty. Maria Concepcion S. Noche
7
and
several others
8
in their personal capacities as citizens and on behalf of the
generations unborn (ALFI);
(3) Petition for Certiorari,
9
filed by the Task Force for Family and Life Visayas,
Inc., and Valeriano S. Avila, in their capacities as citizens and taxpayers (Task
Force Family);
(4) Petition for Certiorari and Prohibition,
10
filed by Serve Life Cagayan De Oro
City, Inc.,
11
Rosevale Foundation, Inc.,
12
a domestic, privately-owned
educational institution, and several others,
13
in their capacities as citizens (Serve
Life);
(5) Petition,
14
filed by Expedito A. Bugarin, Jr. in his capacity as a citizen
(Bugarin);
(6) Petition for Certiorari and Prohibition,
15
filed by Eduardo Olaguer and the
Catholic Xybrspace Apostolate of the Philippines,
16
in their capacities as a
citizens and taxpayers (Olaguer);
(7) Petition for Certiorari and Prohibition,
17
filed by the Philippine Alliance of
Xseminarians Inc.,
18
and several others
19
in their capacities as citizens and
taxpayers (PAX);
(8) Petition,
20
filed by Reynaldo J. Echavez, M.D. and several others,
21
in their
capacities as citizens and taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,
22
filed by spouses Francisco and
Maria Fenny C. Tatad and Atty. Alan F. Paguia, in their capacities as citizens,
taxpayers and on behalf of those yet unborn. Atty. Alan F. Paguia is also
proceeding in his capacity as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,
23
filed by Pro-Life Philippines
Foundation Inc.
24
and several others,
25
in their capacities as citizens and
taxpayers and on behalf of its associates who are members of the Bar (Pro-Life);
(11) Petition for Prohibition,
26
filed by Millennium Saint Foundation,
Inc.,
27
Attys. Ramon Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and
Berteni Catalufia Causing, in their capacities as citizens, taxpayers and members
of the Bar (MSF);
(12) Petition for Certiorari and Prohibition,
28
filed by John Walter B. Juat and
several others,
29
in their capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,
30
filed by Couples for Christ
Foundation, Inc. and several others,
31
in their capacities as citizens (CFC);
(14) Petition for Prohibition
32
filed by Almarim Centi Tillah and Abdulhussein
M. Kashim in their capacities as citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention,
33
filed by Atty. Samson S. Alcantara in his
capacity as a citizen and a taxpayer (Alcantara); and
(16) Petition-In-Intervention,
34
filed by Buhay Hayaang Yumabong (B UHAY) ,
an accredited political party.
A perusal of the foregoing petitions shows that the petitioners are assailing the
constitutionality of RH Law on the following GROUNDS:
The RH Law violates the right to life of the unborn. According to the
petitioners, notwithstanding its declared policy against abortion, the
implementation of the RH Law would authorize the purchase of hormonal
contraceptives, intra-uterine devices and injectables which are abortives, in
violation of Section 12, Article II of the Constitution which guarantees
protection of both the life of the mother and the life of the unborn from
conception.
35

The RH Law violates the right to health and the right to protection against
hazardous products. The petitioners posit that the RH Law provides universal
access to contraceptives which are hazardous to one's health, as it causes cancer
and other health problems.
36

The RH Law violates the right to religious freedom. The petitioners contend
that the RH Law violates the constitutional guarantee respecting religion as it
authorizes the use of public funds for the procurement of contraceptives. For the
petitioners, the use of public funds for purposes that are believed to be contrary
to their beliefs is included in the constitutional mandate ensuring religious
freedom.
37

It is also contended that the RH Law threatens conscientious objectors of criminal
prosecution, imprisonment and other forms of punishment, as it compels medical
practitioners 1] to refer patients who seek advice on reproductive health programs to
other doctors; and 2] to provide full and correct information on reproductive health
programs and service, although it is against their religious beliefs and convictions.
38

In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH
Law (RH-IRR),
39
provides that skilled health professionals who are public officers such
as, but not limited to, Provincial, City, or Municipal Health Officers, medical officers,
medical specialists, rural health physicians, hospital staff nurses, public health nurses, or
rural health midwives, who are specifically charged with the duty to implement these
Rules, cannot be considered as conscientious objectors.
40

It is also argued that the RH Law providing for the formulation of mandatory sex
education in schools should not be allowed as it is an affront to their religious beliefs.
41

While the petit10ners recognize that the guarantee of religious freedom is not absolute,
they argue that the RH Law fails to satisfy the "clear and present danger test" and the
"compelling state interest test" to justify the regulation of the right to free exercise of
religion and the right to free speech.
42

The RH Law violates the constitutional provision on involuntary servitude.
According to the petitioners, the RH Law subjects medical practitioners to
involuntary servitude because, to be accredited under the PhilHealth program,
they are compelled to provide forty-eight (48) hours of pro bona services for
indigent women, under threat of criminal prosecution, imprisonment and other
forms of punishment.
43

The petitioners explain that since a majority of patients are covered by PhilHealth, a
medical practitioner would effectively be forced to render reproductive health services
since the lack of PhilHealth accreditation would mean that the majority of the public
would no longer be able to avail of the practitioners services.
44

The RH Law violates the right to equal protection of the law. It is claimed that
the RH Law discriminates against the poor as it makes them the primary target
of the government program that promotes contraceptive use. The petitioners
argue that, rather than promoting reproductive health among the poor, the RH
Law seeks to introduce contraceptives that would effectively reduce the number
of the poor.
45

The RH Law is "void-for-vagueness" in violation of the due process clause of
the Constitution. In imposing the penalty of imprisonment and/or fine for "any
violation," it is vague because it does not define the type of conduct to be treated
as "violation" of the RH Law.
46

In this connection, it is claimed that "Section 7 of the RH Law violates the right to due
process by removing from them (the people) the right to manage their own affairs and to
decide what kind of health facility they shall be and what kind of services they shall
offer."
47
It ignores the management prerogative inherent in corporations for employers to
conduct their affairs in accordance with their own discretion and judgment.
The RH Law violates the right to free speech. To compel a person to explain a
full range of family planning methods is plainly to curtail his right to expound
only his own preferred way of family planning. The petitioners note that
although exemption is granted to institutions owned and operated by religious
groups, they are still forced to refer their patients to another healthcare facility
willing to perform the service or procedure.
48

The RH Law intrudes into the zone of privacy of one's family protected by the
Constitution. It is contended that the RH Law providing for mandatory
reproductive health education intrudes upon their constitutional right to raise
their children in accordance with their beliefs.
49

It is claimed that, by giving absolute authority to the person who will undergo
reproductive health procedure, the RH Law forsakes any real dialogue between the
spouses and impedes the right of spouses to mutually decide on matters pertaining to the
overall well-being of their family. In the same breath, it is also claimed that the parents of
a child who has suffered a miscarriage are deprived of parental authority to determine
whether their child should use contraceptives.
50

The RH Law violates the constitutional principle of non-delegation of
legislative authority. The petitioners question the delegation by Congress to the
FDA of the power to determine whether a product is non-abortifacient and to be
included in the Emergency Drugs List (EDL).
51

The RH Law violates the one subject/one bill rule provision under Section 26(
1 ), Article VI of the Constitution.
52

The RH Law violates Natural Law.
53

The RH Law violates the principle of Autonomy of Local Government Units
(LGUs) and the Autonomous Region of Muslim Mindanao {ARMM). It is
contended that the RH Law, providing for reproductive health measures at the
local government level and the ARMM, infringes upon the powers devolved to
LGUs and the ARMM under the Local Government Code and R.A . No. 9054.
54

Various parties also sought and were granted leave to file their respective comments-in-
intervention in defense of the constitutionality of the RH Law. Aside from the Office of
the Solicitor General (OSG) which commented on the petitions in behalf of the
respondents,
55
Congressman Edcel C. Lagman,
56
former officials of the Department of
Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and Dr. Alberto G. Romualdez,
57
the
Filipino Catholic Voices for Reproductive Health (C4RH),
58
Ana Theresa "Risa"
Hontiveros,
59
and Atty. Joan De Venecia
60
also filed their respective Comments-in-
Intervention in conjunction with several others. On June 4, 2013, Senator Pia Juliana S.
Cayetano was also granted leave to intervene.
61

The respondents, aside from traversing the substantive arguments of the petitioners, pray
for the dismissal of the petitions for the principal reasons that 1] there is no actual case or
controversy and, therefore, the issues are not yet ripe for judicial determination.; 2] some
petitioners lack standing to question the RH Law; and 3] the petitions are essentially
petitions for declaratory relief over which the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed
legislation took effect.
On March 19, 2013, after considering the issues and arguments raised, the Court issued
the Status Quo Ante Order (SQAO), enjoining the effects and implementation of the
assailed legislation for a period of one hundred and twenty (120) days, or until July 17,
2013.
62

On May 30, 2013, the Court held a preliminary conference with the counsels of the
parties to determine and/or identify the pertinent issues raised by the parties and the
sequence by which these issues were to be discussed in the oral arguments. On July 9 and
23, 2013, and on August 6, 13, and 27, 2013, the cases were heard on oral argument. On
July 16, 2013, the SQAO was ordered extended until further orders of the Court.
63

Thereafter, the Court directed the parties to submit their respective memoranda within
sixty (60) days and, at the same time posed several questions for their clarification on
some contentions of the parties.
64

The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale, dispensation
and distribution of contraceptive drugs and devices. As far back as June 18, 1966, the
country enacted R.A. No. 4729 entitled "An Act to Regu,late the Sale, Dispensation,
and/or Distribution of Contraceptive Drugs and Devices." Although contraceptive drugs
and devices were allowed, they could not be sold, dispensed or distributed "unless such
sale, dispensation and distribution is by a duly licensed drug store or pharmaceutical
company and with the prescription of a qualified medical practitioner."
65

In addition, R.A. No. 5921,
66
approved on June 21, 1969, contained provisions relative to
"dispensing of abortifacients or anti-conceptional substances and devices." Under Section
37 thereof, it was provided that "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."
On December 11, 1967, the Philippines, adhering to the UN Declaration on Population,
which recognized that the population problem should be considered as the principal
element for long-term economic development, enacted measures that promoted male
vasectomy and tubal ligation to mitigate population growth.
67
Among these measures
included R.A. No. 6365, approved on August 16, 1971, entitled "An Act Establishing a
National Policy on Population, Creating the Commission on Population and for Other
Purposes. " The law envisioned that "family planning will be made part of a broad
educational program; safe and effective means will be provided to couples desiring to
space or limit family size; mortality and morbidity rates will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued
Presidential Decree. (P.D.) No. 79,
68
dated December 8, 1972, which, among others,
made "family planning a part of a broad educational program," provided "family planning
services as a part of over-all health care," and made "available all acceptable methods of
contraception, except abortion, to all Filipino citizens desirous of spacing, limiting or
preventing pregnancies."
Through the years, however, the use of contraceptives and family planning methods
evolved from being a component of demographic management, to one centered on the
promotion of public health, particularly, reproductive health.
69
Under that policy, the
country gave priority to one's right to freely choose the method of family planning to be
adopted, in conformity with its adherence to the commitments made in the International
Conference on Population and Development.
70
Thus, on August 14, 2009, the country
enacted R.A. No. 9710 or "The Magna Carta for Women, " which, among others,
mandated the State to provide for comprehensive health services and programs for
women, including family planning and sex education.
71

The RH Law
Despite the foregoing legislative measures, the population of the country kept on
galloping at an uncontrollable pace. From a paltry number of just over 27 million
Filipinos in 1960, the population of the country reached over 76 million in the year 2000
and over 92 million in 2010.
72
The executive and the legislative, thus, felt that the
measures were still not adequate. To rein in the problem, the RH Law was enacted to
provide Filipinos, especially the poor and the marginalized, access and information to the
full range of modem family planning methods, and to ensure that its objective to provide
for the peoples' right to reproductive health be achieved. To make it more effective, the
RH Law made it mandatory for health providers to provide information on the full range
of modem family planning methods, supplies and services, and for schools to provide
reproductive health education. To put teeth to it, the RH Law criminalizes certain acts of
refusals to carry out its mandates.
Stated differently, the RH Law is an enhancement measure to fortify and make effective
the current laws on contraception, women's health and population control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared unconstitutional.
Petitioner ALFI, in particular, argues that the government sponsored contraception
program, the very essence of the RH Law, violates the right to health of women and the
sanctity of life, which the State is mandated to protect and promote. Thus, ALFI prays
that "the status quo ante - the situation prior to the passage of the RH Law - must be
maintained."
73
It explains:
x x x. The instant Petition does not question contraception and contraceptives per se. As
provided under Republic Act No. 5921 and Republic Act No. 4729, the sale and
distribution of contraceptives are prohibited unless dispensed by a prescription duly
licensed by a physician. What the Petitioners find deplorable and repugnant under the RH
Law is the role that the State and its agencies - the entire bureaucracy, from the cabinet
secretaries down to the barangay officials in the remotest areas of the country - is made to
play in the implementation of the contraception program to the fullest extent possible
using taxpayers' money. The State then will be the funder and provider of all forms of
family planning methods and the implementer of the program by ensuring the widespread
dissemination of, and universal access to, a full range of family planning methods,
devices and supplies.
74

ISSUES
After a scrutiny of the various arguments and contentions of the parties, the Court has
synthesized and refined them to the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the
controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its implementing rules, it
behooves the Court to resolve some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review
over the controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should
submit to the legislative and political wisdom of Congress and respect the compromises
made in the crafting of the RH Law, it being "a product of a majoritarian democratic
process"
75
and "characterized by an inordinate amount of transparency."
76
The OSG posits
that the authority of the Court to review social legislation like the RH Law by certiorari is
"weak," since the Constitution vests the discretion to implement the constitutional
policies and positive norms with the political departments, in particular, with
Congress.
77
It further asserts that in view of the Court's ruling in Southern Hemisphere v.
Anti-Terrorism Council,
78
the remedies of certiorari and prohibition utilized by the
petitioners are improper to assail the validity of the acts of the legislature.
79

Moreover, the OSG submits that as an "as applied challenge," it cannot prosper
considering that the assailed law has yet to be enforced and applied to the petitioners, and
that the government has yet to distribute reproductive health devices that are abortive. It
claims that the RH Law cannot be challenged "on its face" as it is not a speech-regulating
measure.
80

In many cases involving the determination of the constitutionality of the actions of the
Executive and the Legislature, it is often sought that the Court temper its exercise of
judicial power and accord due respect to the wisdom of its co-equal branch on the basis
of the principle of separation of powers. To be clear, the separation of powers is a
fundamental principle in our system of government, which obtains not through express
provision but by actual division in our Constitution. Each department of the government
has exclusive cognizance of matters within its jurisdiction and is supreme within its own
sphere.
81

Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the
Congress of the Philippines;
82
(b) the executive power shall be vested in the President of
the Philippines;
83
and (c) the judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
84
The Constitution has truly blocked out
with deft strokes and in bold lines, the allotment of powers among the three branches of
government.
85

In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of
powers which imposes upon the courts proper restraint, born of the nature of their
functions and of their respect for the other branches of government, in striking down the
acts of the Executive or the Legislature as unconstitutional. Verily, the policy is a
harmonious blend of courtesy and caution.
86

It has also long been observed, however, that in times of social disquietude or political
instability, the great landmarks of the Constitution are apt to be forgotten or marred, if
not entirely obliterated.
87
In order to address this, the Constitution impresses upon the
Court to respect the acts performed by a co-equal branch done within its sphere of
competence and authority, but at the same time, allows it to cross the line of separation -
but only at a very limited and specific point - to determine whether the acts of the
executive and the legislative branches are null because they were undertaken with grave
abuse of discretion.
88
Thus, while the Court may not pass upon questions of wisdom,
justice or expediency of the RH Law, it may do so where an attendant unconstitutionality
or grave abuse of discretion results.
89
The Court must demonstrate its unflinching
commitment to protect those cherished rights and principles embodied in the
Constitution.
In this connection, it bears adding that while the scope of judicial power of review may
be limited, the Constitution makes no distinction as to the kind of legislation that may be
subject to judicial scrutiny, be it in the form of social legislation or otherwise. The reason
is simple and goes back to the earlier point. The Court may pass upon the
constitutionality of acts of the legislative and the executive branches, since its duty is not
to review their collective wisdom but, rather, to make sure that they have acted in
consonance with their respective authorities and rights as mandated of them by the
Constitution. If after said review, the Court finds no constitutional violations of any sort,
then, it has no more authority of proscribing the actions under review.
90
This is in line
with Article VIII, Section 1 of the Constitution which expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. [Emphases
supplied]
As far back as Tanada v. Angara,
91
the Court has unequivocally declared that certiorari,
prohibition and mandamus are appropriate remedies to raise constitutional issues and to
review and/or prohibit/nullify, when proper, acts of legislative and executive officials, as
there is no other plain, speedy or adequate remedy in the ordinary course of law. This
ruling was later on applied in Macalintal v. COMELEC,
92
Aldaba v.
COMELEC,
93
Magallona v. Ermita,
94
and countless others. In Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the dispute. "The question thus
posed is judicial rather than political. The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld. " Once a "controversy as to the application or
interpretation of constitutional provision is raised before this Court (as in the instant
case), it becomes a legal issue which the Court is bound by constitutional mandate to
decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano,
"judicial review is essential for the maintenance and enforcement of the separation of
powers and the balancing of powers among the three great departments of government
through the definition and maintenance of the boundaries of authority and control
between them. To him, judicial review is the chief, indeed the only, medium of
participation - or instrument of intervention - of the judiciary in that balancing
operation.
95

Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled
authority to rule on just any and every claim of constitutional violation. Jurisprudence is
replete with the rule that the power of judicial review is limited by four exacting
requisites, viz : (a) there must be an actual case or controversy; (b) the petitioners must
possess locus standi; (c) the question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the lis mota of the case.
96

Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not present any actual
case or controversy because the RH Law has yet to be implemented.
97
They claim that the
questions raised by the petitions are not yet concrete and ripe for adjudication since no
one has been charged with violating any of its provisions and that there is no showing
that any of the petitioners' rights has been adversely affected by its operation.
98
In short, it
is contended that judicial review of the RH Law is premature.
An actual case or controversy means an existing case or controversy that is appropriate or
ripe for determination, not conjectural or anticipatory, lest the decision of the court would
amount to an advisory opinion.
99
The rule is that courts do not sit to adjudicate mere
academic questions to satisfy scholarly interest, however intellectually challenging. The
controversy must be justiciable-definite and concrete, touching on the legal relations of
parties having adverse legal interests. In other words, the pleadings must show an active
antagonistic assertion of a legal right, on the one hand, and a denial thereof, on the other;
that is, it must concern a real, tangible and not merely a theoretical question or issue.
There ought to be an actual and substantial controversy admitting of specific relief
through a decree conclusive in nature, as distinguished from an opinion advising what the
law would be upon a hypothetical state of facts.
100

Corollary to the requirement of an actual case or controversy is the requirement of
ripeness.
101
A question is ripe for adjudication when the act being challenged has had a
direct adverse effect on the individual challenging it. For a case to be considered ripe for
adjudication, it is a prerequisite that something has then been accomplished or performed
by either branch before a court may come into the picture, and the petitioner must allege
the existence of an immediate or threatened injury to himself as a result of the challenged
action. He must show that he has sustained or is immediately in danger of sustaining
some direct injury as a result of the act complained of
102

In The Province of North Cotabato v. The Government of the Republic of the
Philippines,
103
where the constitutionality of an unimplemented Memorandum of
Agreement on the Ancestral Domain (MOA-AD) was put in question, it was argued that
the Court has no authority to pass upon the issues raised as there was yet no concrete act
performed that could possibly violate the petitioners' and the intervenors' rights. Citing
precedents, the Court ruled that the fact of the law or act in question being not yet
effective does not negate ripeness. Concrete acts under a law are not necessary to render
the controversy ripe. Even a singular violation of the Constitution and/or the law is
enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or controversy exists and that the
same is ripe for judicial determination. Considering that the RH Law and its
implementing rules have already taken effect and that budgetary measures to carry out
the law have already been passed, it is evident that the subject petitions present a
justiciable controversy. As stated earlier, when an action of the legislative branch is
seriously alleged to have infringed the Constitution, it not only becomes a right, but also
a duty of the Judiciary to settle the dispute.
104

Moreover, the petitioners have shown that the case is so because medical practitioners or
medical providers are in danger of being criminally prosecuted under the RH Law for
vague violations thereof, particularly public health officers who are threatened to be
dismissed from the service with forfeiture of retirement and other benefits. They must, at
least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject petitions,
contending that the RH Law cannot be challenged "on its face" as it is not a speech
regulating measure.
105

The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a First
Amendment Challenge, is one that is launched to assail the validity of statutes concerning
not only protected speech, but also all other rights in the First Amendment.
106
These
include religious freedom, freedom of the press, and the right of the people to peaceably
assemble, and to petition the Government for a redress of grievances.
107
After all, the
fundamental right to religious freedom, freedom of the press and peaceful assembly are
but component rights of the right to one's freedom of expression, as they are modes
which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been
generally maintained, albeit with some modifications. While this Court has withheld the
application of facial challenges to strictly penal statues,
108
it has expanded its scope to
cover statutes not only regulating free speech, but also those involving religious freedom,
and other fundamental rights.
109
The underlying reason for this modification is simple.
For unlike its counterpart in the U.S., this Court, under its expanded jurisdiction, is
mandated by the Fundamental Law not only to settle actual controversies involving rights
which are legally demandable and enforceable, but also to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.
110
Verily, the framers of Our
Constitution envisioned a proactive Judiciary, ever vigilant with its duty to maintain the
supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that the
constitutional human rights to life, speech and religion and other fundamental rights
mentioned above have been violated by the assailed legislation, the Court has authority to
take cognizance of these kindred petitions and to determine if the RH Law can indeed
pass constitutional scrutiny. To dismiss these petitions on the simple expedient that there
exist no actual case or controversy, would diminish this Court as a reactive branch of
government, acting only when the Fundamental Law has been transgressed, to the
detriment of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file their respective
petitions. It contends that the "as applied challenge" lodged by the petitioners cannot
prosper as the assailed law has yet to be enforced and applied against them,
111
and the
government has yet to distribute reproductive health devices that are abortive.
112

The petitioners, for their part, invariably invoke the "transcendental importance" doctrine
and their status as citizens and taxpayers in establishing the requisite locus standi.
Locus standi or legal standing is defined as a personal and substantial interest in a case
such that the party has sustained or will sustain direct injury as a result of the challenged
governmental act.
113
It requires a personal stake in the outcome of the controversy as to
assure the concrete adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional questions.
114

In relation to locus standi, the "as applied challenge" embodies the rule that one can
challenge the constitutionality of a statute only if he asserts a violation of his own rights.
The rule prohibits one from challenging the constitutionality of the statute grounded on a
violation of the rights of third persons not before the court. This rule is also known as the
prohibition against third-party standing.
115

Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of
procedure, hence, can be relaxed for non-traditional plaintiffs like ordinary citizens,
taxpayers, and legislators when the public interest so requires, such as when the matter is
of transcendental importance, of overreaching significance to society, or of paramount
public interest."
116

In Coconut Oil Refiners Association, Inc. v. Torres,
117
the Court held that in cases of
paramount importance where serious constitutional questions are involved, the standing
requirement may be relaxed and a suit may be allowed to prosper even where there is no
direct injury to the party claiming the right of judicial review. In the first Emergency
Powers Cases,
118
ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders although they had only an indirect and
general interest shared in common with the public.
With these said, even if the constitutionality of the RH Law may not be assailed through
an "as-applied challenge, still, the Court has time and again acted liberally on the locus s
tandi requirement. It has accorded certain individuals standing to sue, not otherwise
directly injured or with material interest affected by a Government act, provided a
constitutional issue of transcendental importance is invoked. The rule on locus standi is,
after all, a procedural technicality which the Court has, on more than one occasion,
waived or relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens,
taxpayers, voters or legislators, to sue in the public interest, albeit they may not have been
directly injured by the operation of a law or any other government act. As held in
Jaworski v. PAGCOR:
119

Granting arguendo that the present action cannot be properly treated as a petition for
prohibition, the transcendental importance of the issues involved in this case warrants
that we set aside the technical defects and take primary jurisdiction over the petition at
bar. One cannot deny that the issues raised herein have potentially pervasive influence on
the social and moral well being of this nation, specially the youth; hence, their proper and
just determination is an imperative need. This is in accordance with the well-entrenched
principle that rules of procedure are not inflexible tools designed to hinder or delay, but
to facilitate and promote the administration of justice. Their strict and rigid application,
which would result in technicalities that tend to frustrate, rather than promote substantial
justice, must always be eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the public, but
also to the bench and bar, the issues raised must be resolved for the guidance of all. After
all, the RH Law drastically affects the constitutional provisions on the right to life and
health, the freedom of religion and expression and other constitutional rights. Mindful of
all these and the fact that the issues of contraception and reproductive health have already
caused deep division among a broad spectrum of society, the Court entertains no doubt
that the petitions raise issues of transcendental importance warranting immediate court
adjudication. More importantly, considering that it is the right to life of the mother and
the unborn which is primarily at issue, the Court need not wait for a life to be taken away
before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when rights
enshrined in the Constitution are being imperilled to be violated. To do so, when the life
of either the mother or her child is at stake, would lead to irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions for
declaratory relief over which the Court has no original jurisdiction.
120
Suffice it to state
that most of the petitions are praying for injunctive reliefs and so the Court would just
consider them as petitions for prohibition under Rule 65, over which it has original
jurisdiction. Where the case has far-reaching implications and prays for injunctive reliefs,
the Court may consider them as petitions for prohibition under Rule 65.
121

One Subject-One Title
The petitioners also question the constitutionality of the RH Law, claiming that it violates
Section 26(1 ), Article VI of the Constitution,
122
prescribing the one subject-one title rule.
According to them, being one for reproductive health with responsible parenthood, the
assailed legislation violates the constitutional standards of due process by concealing its
true intent - to act as a population control measure.
123

To belittle the challenge, the respondents insist that the RH Law is not a birth or
population control measure,
124
and that the concepts of "responsible parenthood" and
"reproductive health" are both interrelated as they are inseparable.
125

Despite efforts to push the RH Law as a reproductive health law, the Court sees it as
principally a population control measure. The corpus of the RH Law is geared towards
the reduction of the country's population. While it claims to save lives and keep our
women and children healthy, it also promotes pregnancy-preventing products. As stated
earlier, the RH Law emphasizes the need to provide Filipinos, especially the poor and the
marginalized, with access to information on the full range of modem family planning
products and methods. These family planning methods, natural or modem, however, are
clearly geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce the number
of births in the country.
It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as
well. A large portion of the law, however, covers the dissemination of information and
provisions on access to medically-safe, non-abortifacient, effective, legal, affordable, and
quality reproductive health care services, methods, devices, and supplies, which are all
intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of
contraception pervades the entire RH Law. It is, in fact, the central idea of the RH
Law.
126
Indeed, remove the provisions that refer to contraception or are related to it and
the RH Law loses its very foundation.
127
As earlier explained, "the other positive
provisions such as skilled birth attendance, maternal care including pre-and post-natal
services, prevention and management of reproductive tract infections including
HIV/AIDS are already provided for in the Magna Carta for Women."
128

Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin
E. Cawaling, Jr. v. The Commission on Elections and Rep. Francis Joseph G Escudero, it
was written:
It is well-settled that the "one title-one subject" rule does not require the Congress to
employ in the title of the enactment language of such precision as to mirror, fully index
or catalogue all the contents and the minute details therein. The rule is sufficiently
complied with if the title is comprehensive enough as to include the general object which
the statute seeks to effect, and where, as here, the persons interested are informed of the
nature, scope and consequences of the proposed law and its operation. Moreover, this
Court has invariably adopted a liberal rather than technical construction of the rule "so as
not to cripple or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that both
"reproductive health" and "responsible parenthood" are interrelated and germane to the
overriding objective to control the population growth. As expressed in the first paragraph
of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of
all persons including their right to equality and nondiscrimination of these rights, the
right to sustainable human development, the right to health which includes reproductive
health, the right 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.
The one subject/one title rule expresses the principle that the title of a law must not be "so
uncertain that the average person reading it would not be informed of the purpose of the
enactment or put on inquiry as to its contents, or which is misleading, either in referring
to or indicating one subject where another or different one is really embraced in the act,
or in omitting any expression or indication of the real subject or scope of the act."
129

Considering the close intimacy between "reproductive health" and "responsible
parenthood" which bears to the attainment of the goal of achieving "sustainable human
development" as stated under its terms, the Court finds no reason to believe that Congress
intentionally sought to deceive the public as to the contents of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and health of the
unborn child under Section 12, Article II of the Constitution. The assailed legislation
allowing access to abortifacients/abortives effectively sanctions abortion.
130

According to the petitioners, despite its express terms prohibiting abortion, Section 4(a)
of the RH Law considers contraceptives that prevent the fertilized ovum to reach and be
implanted in the mother's womb as an abortifacient; thus, sanctioning contraceptives that
take effect after fertilization and prior to implantation, contrary to the intent of the
Framers of the Constitution to afford protection to the fertilized ovum which already has
life.
They argue that even if Section 9 of the RH Law allows only "non-abortifacient"
hormonal contraceptives, intrauterine devices, injectables and other safe, legal, non-
abortifacient and effective family planning products and supplies, medical research
shows that contraceptives use results in abortion as they operate to kill the fertilized
ovum which already has life.
131

As it opposes the initiation of life, which is a fundamental human good, the petitioners
assert that the State sanction of contraceptive use contravenes natural law and is an
affront to the dignity of man.
132

Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug
Administration (FDA) to certify that the product or supply is not to be used as an
abortifacient, the assailed legislation effectively confirms that abortifacients are not
prohibited. Also considering that the FDA is not the agency that will actually supervise or
administer the use of these products and supplies to prospective patients, there is no way
it can truthfully make a certification that it shall not be used for abortifacient purposes.
133

Position of the Respondents
For their part, the defenders of the RH Law point out that the intent of the Framers of the
Constitution was simply the prohibition of abortion. They contend that the RH Law does
not violate the Constitution since the said law emphasizes that only "non-abortifacient"
reproductive health care services, methods, devices products and supplies shall be made
accessible to the public.
134

According to the OSG, Congress has made a legislative determination that contraceptives
are not abortifacients by enacting the RH Law. As the RH Law was enacted with due
consideration to various studies and consultations with the World Health Organization
(WHO) and other experts in the medical field, it is asserted that the Court afford
deference and respect to such a determination and pass judgment only when a particular
drug or device is later on determined as an abortive.
135

For his part, respondent Lagman argues that the constitutional protection of one's right to
life is not violated considering that various studies of the WHO show that life begins
from the implantation of the fertilized ovum. Consequently, he argues that the RH Law is
constitutional since the law specifically provides that only contraceptives that do not
prevent the implantation of the fertilized ovum are allowed.
136

The Court's Position
It is a universally accepted principle that every human being enjoys the right to life.
137

Even if not formally established, the right to life, being grounded on natural law, is
inherent and, therefore, not a creation of, or dependent upon a particular law, custom, or
belief. It precedes and transcends any authority or the laws of men.
In this jurisdiction, the right to life is given more than ample protection. Section 1, Article
III of the Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family planning methods in the
Philippines is not of recent vintage. From the enactment of R.A. No. 4729, entitled "An
Act To Regulate The Sale, Dispensation, and/or Distribution of Contraceptive Drugs and
Devices "on June 18, 1966, prescribing rules on contraceptive drugs and devices which
prevent fertilization,
138
to the promotion of male vasectomy and tubal ligation,
139
and the
ratification of numerous international agreements, the country has long recognized the
need to promote population control through the use of contraceptives in order to achieve
long-term economic development. Through the years, however, the use of contraceptives
and other family planning methods evolved from being a component of demographic
management, to one centered on the promotion of public health, particularly,
reproductive health.
140

This has resulted in the enactment of various measures promoting women's rights and
health and the overall promotion of the family's well-being. Thus, aside from R.A. No.
4729, R.A. No. 6365 or "The Population Act of the Philippines" and R.A. No. 9710,
otherwise known as the "The Magna Carta of Women" were legislated. Notwithstanding
this paradigm shift, the Philippine national population program has always been grounded
two cornerstone principles: "principle of no-abortion" and the "principle of non-
coercion."
141
As will be discussed later, these principles are not merely grounded on
administrative policy, but rather, originates from the constitutional protection expressly
provided to afford protection to life and guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the question of when life
begins is a scientific and medical issue that should not be decided, at this stage, without
proper hearing and evidence. During the deliberation, however, it was agreed upon that
the individual members of the Court could express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the particular
phrase of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally protect the
life of the mother and the life of the unborn from conception. The natural and primary
right and duty of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the Government.
Textually, the Constitution affords protection to the unborn from conception. This is
undisputable because before conception, there is no unborn to speak of. For said reason,
it is no surprise that the Constitution is mute as to any proscription prior to conception or
when life begins. The problem has arisen because, amazingly, there are quarters who
have conveniently disregarded the scientific fact that conception is reckoned from
fertilization. They are waving the view that life begins at implantation. Hence, the issue
of when life begins.
In a nutshell, those opposing the RH Law contend that conception is synonymous with
"fertilization" of the female ovum by the male sperm.
142
On the other side of the spectrum
are those who assert that conception refers to the "implantation" of the fertilized ovum in
the uterus.
143

Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution should be
interpreted in their plain and ordinary meaning. As held in the recent case of Chavez v.
Judicial Bar Council:
144

One of the primary and basic rules in statutory construction is that where the words of a
statute are clear, plain, and free from ambiguity, it must be given its literal meaning and
applied without attempted interpretation. It is a well-settled principle of constitutional
construction that the language employed in the Constitution must be given their ordinary
meaning except where technical terms are employed. As much as possible, the words of
the Constitution should be understood in the sense they have in common use. What it
says according to the text of the provision to be construed compels acceptance and
negates the power of the courts to alter it, based on the postulate that the framers and the
people mean what they say. Verba legis non est recedendum - from the words of a statute
there should be no departure.
The raison d' etre for the rule is essentially two-fold: First, because it is assumed that the
words in which constitutional provisions are couched express the objective sought to be
attained; and second, because the Constitution is not primarily a lawyer's document but
essentially that of the people, in whose consciousness it should ever be present as an
important condition for the rule of law to prevail.
In conformity with the above principle, the traditional meaning of the word "conception"
which, as described and defined by all reliable and reputable sources, means that life
begins at fertilization.
Webster's Third New International Dictionary describes it as the act of becoming
pregnant, formation of a viable zygote; the fertilization that results in a new entity
capable of developing into a being like its parents.
145

Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation
of the female ovum by the male spermatozoon resulting in human life capable of survival
and maturation under normal conditions.
146

Even in jurisprudence, an unborn child has already a legal personality. In Continental
Steel Manufacturing Corporation v. Hon. Accredited Voluntary Arbitrator Allan S.
Montano,
147
it was written:
Life is not synonymous with civil personality. One need not acquire civil personality first
before he/she could die. Even a child inside the womb already has life. No less than the
Constitution recognizes the life of the unborn from conception, that the State must protect
equally with the life of the mother. If the unborn already has life, then the cessation
thereof even prior to the child being delivered, qualifies as death. [Emphases in the
original]
In Gonzales v. Carhart,
148
Justice Anthony Kennedy, writing for the US Supreme Court,
said that the State "has respect for human life at all stages in the pregnancy" and "a
legitimate and substantial interest in preserving and promoting fetal life." Invariably, in
the decision, the fetus was referred to, or cited, as a baby or a child.
149

Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of the Framers
regarding the term "conception" used in Section 12, Article II of the Constitution. From
their deliberations, it clearly refers to the moment of "fertilization." The records reflect
the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the unborn from the
moment of conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized
by the sperm that there is human life. x x x.
150

xxx
As to why conception is reckoned from fertilization and, as such, the beginning of human
life, it was explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first question that
needs to be answered is: Is the fertilized ovum alive? Biologically categorically says yes,
the fertilized ovum is alive. First of all, like all living organisms, it takes in nutrients
which it processes by itself. It begins doing this upon fertilization. Secondly, as it takes in
these nutrients, it grows from within. Thirdly, it multiplies itself at a geometric rate in the
continuous process of cell division. All these processes are vital signs of life. Therefore,
there is no question that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical "yes." At the
moment of conception, the nuclei of the ovum and the sperm rupture. As this happens 23
chromosomes from the ovum combine with 23 chromosomes of the sperm to form a total
of 46 chromosomes. A chromosome count of 46 is found only - and I repeat, only in
human cells. Therefore, the fertilized ovum is human.
Since these questions have been answered affirmatively, we must conclude that if the
fertilized ovum is both alive and human, then, as night follows day, it must be human life.
Its nature is human.
151

Why the Constitution used the phrase "from the moment of conception" and not "from
the moment of fertilization" was not because of doubt when human life begins, but rather,
because:
Mr. Tingson: x x x x the phrase from the moment of conception" was described by us
here before with the scientific phrase "fertilized ovum" may be beyond the
comprehension of some people; we want to use the simpler phrase "from the moment of
conception."
152

Thus, in order to ensure that the fertilized ovum is given ample protection under the
Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing
a Constitution, without specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular view because according to the
Commissioner's own admission, he would leave it to Congress to define when life begins.
So, Congress can define life to begin from six months after fertilization; and that would
really be very, very, dangerous. It is now determined by science that life begins from the
moment of conception. There can be no doubt about it. So we should not give any doubt
to Congress, too.
153

Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually,
that is one of the questions I was going to raise during the period of interpellations but it
has been expressed already. The provision, as proposed right now states:
The State shall equally protect the life of the mother and the life of the unborn from the
moment of conception.
When it speaks of "from the moment of conception," does this mean when the egg meets
the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine whether
certain contraceptives that we know today are abortifacient or not because it is a fact that
some of the so-called contraceptives deter the rooting of the ovum in the uterus. If
fertilization has already occurred, the next process is for the fertilized ovum to travel
towards the uterus and to take root. What happens with some contraceptives is that they
stop the opportunity for the fertilized ovum to reach the uterus. Therefore, if we take the
provision as it is proposed, these so called contraceptives should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called
abortifacient and, therefore, would be unconstitutional and should be banned under this
provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether
or not these certain contraceptives are abortifacient. Scientifically and based on the
provision as it is now proposed, they are already considered abortifacient.
154

From the deliberations above-quoted, it is apparent that the Framers of the Constitution
emphasized that the State shall provide equal protection to both the mother and the
unborn child from the earliest opportunity of life, that is, upon fertilization or upon the
union of the male sperm and the female ovum. It is also apparent is that the Framers of
the Constitution intended that to prohibit Congress from enacting measures that would
allow it determine when life begins.
Equally apparent, however, is that the Framers of the Constitution did not intend to ban
all contraceptives for being unconstitutional. In fact, Commissioner Bernardo Villegas,
spearheading the need to have a constitutional provision on the right to life, recognized
that the determination of whether a contraceptive device is an abortifacient is a question
of fact which should be left to the courts to decide on based on established evidence.
155

From the discussions above, contraceptives that kill or destroy the fertilized ovum should
be deemed an abortive and thus prohibited. Conversely, contraceptives that actually
prevent the union of the male sperm and the female ovum, and those that similarly take
action prior to fertilization should be deemed non-abortive, and thus, constitutionally
permissible.
As emphasized by the Framers of the Constitution:
x x x x x x x x x
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to the
point that I would like not only to protect the life of the unborn, but also the lives of the
millions of people in the world by fighting for a nuclear-free world. I would just like to
be assured of the legal and pragmatic implications of the term "protection of the life of
the unborn from the moment of conception." I raised some of these implications this
afternoon when I interjected in the interpellation of Commissioner Regalado. I would like
to ask that question again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the unborn from the moment of
conception" we are also actually saying "no," not "maybe," to certain contraceptives
which are already being encouraged at this point in time. Is that the sense of the
committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive.
There is no unborn yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some
contraceptives, such as the intra-uterine device which actually stops the egg which has
already been fertilized from taking route to the uterus. So if we say "from the moment of
conception," what really occurs is that some of these contraceptives will have to be
unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.
156

The fact that not all contraceptives are prohibited by the 1987 Constitution is even
admitted by petitioners during the oral arguments. There it was conceded that tubal
ligation, vasectomy, even condoms are not classified as abortifacients.
157

Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin:
To be protected.
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
So you have no objection to condoms?
Atty. Noche:
Not under Section 12, Article II.
Justice Bersamin:
Even if there is already information that condoms sometimes have porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am
discussing here Section 12, Article II, Your Honor, yes.
Justice Bersamin:
Alright.
Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your Honor.
158

Medical Meaning
That conception begins at fertilization is not bereft of medical foundation. Mosby s
Medical, Nursing, and Allied Health Dictionary defines conception as "the beginning of
pregnancy usually taken to be the instant a spermatozoon enters an ovum and forms a
viable zygote."
159

It describes fertilization as "the union of male and female gametes to form a zygote from
which the embryo develops."
160

The Textbook of Obstetrics (Physiological & Pathological Obstetrics),
161
used by medical
schools in the Philippines, also concludes that human life (human person) begins at the
moment of fertilization with the union of the egg and the sperm resulting in the formation
of a new individual, with a unique genetic composition that dictates all developmental
stages that ensue.
Similarly, recent medical research on the matter also reveals that: "Human development
begins after the union of male and female gametes or germ cells during a process known
as fertilization (conception). Fertilization is a sequence of events that begins with the
contact of a sperm (spermatozoon) with a secondary oocyte (ovum) and ends with the
fusion of their pronuclei (the haploid nuclei of the sperm and ovum) and the mingling of
their chromosomes to form a new cell. This fertilized ovum, known as a zygote, is a large
diploid cell that is the beginning, or primordium, of a human being."
162

The authors of Human Embryology & Teratology
163
mirror the same position. They
wrote: "Although life is a continuous process, fertilization is a critical landmark because,
under ordinary circumstances, a new, genetically distinct human organism is thereby
formed.... The combination of 23 chromosomes present in each pronucleus results in 46
chromosomes in the zygote. Thus the diploid number is restored and the embryonic
genome is formed. The embryo now exists as a genetic unity."
In support of the RH Bill, The Philippine Medical Association came out with a "Paper on
the Reproductive Health Bill (Responsible Parenthood Bill)" and therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same time that PMA
maintains its strong position that fertilization is sacred because it is at this stage that
conception, and thus human life, begins. Human lives are sacred from the moment of
conception, and that destroying those new lives is never licit, no matter what the
purported good outcome would be. In terms of biology and human embryology, a human
being begins immediately at fertilization and after that, there is no point along the
continuous line of human embryogenesis where only a "potential" human being can be
posited. Any philosophical, legal, or political conclusion cannot escape this objective
scientific fact.
The scientific evidence supports the conclusion that a zygote is a human organism and
that the life of a new human being commences at a scientifically well defined "moment of
conception." This conclusion is objective, consistent with the factual evidence, and
independent of any specific ethical, moral, political, or religious view of human life or of
human embryos.
164

Conclusion: The Moment of Conception is Reckoned from
Fertilization
In all, whether it be taken from a plain meaning, or understood under medical parlance,
and more importantly, following the intention of the Framers of the Constitution, the
undeniable conclusion is that a zygote is a human organism and that the life of a new
human being commences at a scientifically well-defined moment of conception, that is,
upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by Hon.
Lagman that life begins at implantation.
165
According to him, "fertilization and
conception are two distinct and successive stages in the reproductive process. They are
not identical and synonymous."
166
Citing a letter of the WHO, he wrote that "medical
authorities confirm that the implantation of the fertilized ovum is the commencement of
conception and it is only after implantation that pregnancy can be medically detected."
167

This theory of implantation as the beginning of life is devoid of any legal or scientific
mooring. It does not pertain to the beginning of life but to the viability of the fetus. The
fertilized ovum/zygote is not an inanimate object - it is a living human being complete
with DNA and 46 chromosomes.
168
Implantation has been conceptualized only for
convenience by those who had population control in mind. To adopt it would constitute
textual infidelity not only to the RH Law but also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the utilization of any
drug or device that would prevent the implantation of the fetus at the uterine wall. It
would be provocative and further aggravate religious-based divisiveness.
It would legally permit what the Constitution proscribes - abortion and abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the
life of the unborn from conception was to prevent the Legislature from enacting a
measure legalizing abortion. It was so clear that even the Court cannot interpret it
otherwise. This intent of the Framers was captured in the record of the proceedings of the
1986 Constitutional Commission. Commissioner Bernardo Villegas, the principal
proponent of the protection of the unborn from conception, explained:
The intention .. .is to make sure that there would be no pro-abortion laws ever passed by
Congress or any pro-abortion decision passed by the Supreme Court.
169

A reading of the RH Law would show that it is in line with this intent and actually
proscribes abortion. While the Court has opted not to make any determination, at this
stage, when life begins, it finds that the RH Law itself clearly mandates that protection be
afforded from the moment of fertilization. As pointed out by Justice Carpio, the RH Law
is replete with provisions that embody the policy of the law to protect to the fertilized
ovum and that it should be afforded safe travel to the uterus for implantation.
170

Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the
Revised Penal Code, which penalizes the destruction or expulsion of the fertilized ovum.
Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be
defined as follows:
xxx.
(q) Reproductive health care refers to the access to a full range of methods, facilities,
services and supplies that contribute to reproductive health and well-being by addressing
reproductive health-related problems. It also includes sexual health, the purpose of which
is the enhancement of life and personal relations. The elements of reproductive health
care include the following:
xxx.
(3) Proscription of abortion and management of abortion complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples, to decide
freely and responsibly whether or not to have children; the number, spacing and timing of
their children; to make other decisions concerning reproduction, free of discrimination,
coercion and violence; to have the information and means to do so; and to attain the
highest standard of sexual health and reproductive health: Provided, however, That
reproductive health rights do not include abortion, and access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law,
presidential decree or issuance, executive order, letter of instruction, administrative order,
rule or regulation contrary to or is inconsistent with the provisions of this Act including
Republic Act No. 7392, otherwise known as the Midwifery Act, is hereby repealed,
modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients.
To be clear, Section 4(a) of the RH Law defines an abortifacient as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a
fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be
implanted in the mother's womb upon determination of the FDA.
As stated above, the RH Law mandates that protection must be afforded from the
moment of fertilization. By using the word " or," the RH Law prohibits not only drugs or
devices that prevent implantation, but also those that induce abortion and those that
induce the destruction of a fetus inside the mother's womb. Thus, an abortifacient is any
drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb,
upon determination of the FDA.
Contrary to the assertions made by the petitioners, the Court finds that the RH Law,
consistent with the Constitution, recognizes that the fertilized ovum already has life and
that the State has a bounden duty to protect it. The conclusion becomes clear because the
RH Law, first, prohibits any drug or device that induces abortion (first kind), which, as
discussed exhaustively above, refers to that which induces the killing or the destruction of
the fertilized ovum, and, second, prohibits any drug or device the fertilized ovum to reach
and be implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents the fertilized ovum to reach
and be implanted in the mother's womb is an abortifacient (third kind), the RH Law does
not intend to mean at all that life only begins only at implantation, as Hon. Lagman
suggests. It also does not declare either that protection will only be given upon
implantation, as the petitioners likewise suggest. Rather, it recognizes that: one, there is a
need to protect the fertilized ovum which already has life, and two, the fertilized ovum
must be protected the moment it becomes existent - all the way until it reaches and
implants in the mother's womb. After all, if life is only recognized and afforded
protection from the moment the fertilized ovum implants - there is nothing to prevent any
drug or device from killing or destroying the fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized
ovum, the RH Law does not sanction abortion. To repeat, it is the Court's position that
life begins at fertilization, not at implantation. When a fertilized ovum is implanted in the
uterine wall , its viability is sustained but that instance of implantation is not the point of
beginning of life. It started earlier. And as defined by the RH Law, any drug or device
that induces abortion, that is, which kills or destroys the fertilized ovum or prevents the
fertilized ovum to reach and be implanted in the mother's womb, is an abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the law that
"any product or supply included or to be included in the EDL must have a certification
from the FDA that said product and supply is made available on the condition that it is
not to be used as an abortifacient" as empty as it is absurd. The FDA, with all its
expertise, cannot fully attest that a drug or device will not all be used as an abortifacient,
since the agency cannot be present in every instance when the contraceptive product or
supply will be used.
171

Pursuant to its declared policy of providing access only to safe, legal and non-
abortifacient contraceptives, however, the Court finds that the proviso of Section 9, as
worded, should bend to the legislative intent and mean that "any product or supply
included or to be included in the EDL must have a certification from the FDA that said
product and supply is made available on the condition that it cannot be used as
abortifacient." Such a construction is consistent with the proviso under the second
paragraph of the same section that provides:
Provided, further, That the foregoing offices shall not purchase or acquire by any means
emergency contraceptive pills, postcoital pills, abortifacients that will be used for such
purpose and their other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely
abused their office when they redefined the meaning of abortifacient. The RH Law
defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be
defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a
fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be
implanted in the mother's womb upon determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the fertilized ovum to
reach and be implanted in the mother's womb upon determination of the Food and Drug
Administration (FDA). [Emphasis supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven modern
family planning method, device, or health product, whether natural or artificial, that
prevents pregnancy but does not primarily destroy a fertilized ovum or prevent a
fertilized ovum from being implanted in the mother's womb in doses of its approved
indication as determined by the Food and Drug Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as
"abortifacient" only those that primarily induce abortion or the destruction of a fetus
inside the mother's womb or the prevention of the fertilized ovum to reach and be
implanted in the mother's womb.
172

This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are well taken.
As they pointed out, with the insertion of the word "primarily," Section 3.0l(a) and G) of
the RH-IRR
173
must be struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the RH-
IRR is indeed ultra vires. It contravenes Section 4(a) of the RH Law and should,
therefore, be declared invalid. There is danger that the insertion of the qualifier
"primarily" will pave the way for the approval of contraceptives which may harm or
destroy the life of the unborn from conception/fertilization in violation of Article II,
Section 12 of the Constitution. With such qualification in the RH-IRR, it appears to
insinuate that a contraceptive will only be considered as an "abortifacient" if its sole
known effect is abortion or, as pertinent here, the prevention of the implantation of the
fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the approval of
contraceptives which are actually abortifacients because of their fail-safe mechanism.
174

Also, as discussed earlier, Section 9 calls for the certification by the FDA that these
contraceptives cannot act as abortive. With this, together with the definition of an
abortifacient under Section 4 (a) of the RH Law and its declared policy against abortion,
the undeniable conclusion is that contraceptives to be included in the PNDFS and the
EDL will not only be those contraceptives that do not have the primary action of causing
abortion or the destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb, but also those that do
not have the secondary action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the
principle that laws should be construed in a manner that its constitutionality is sustained,
the RH Law and its implementing rules must be consistent with each other in prohibiting
abortion. Thus, the word " primarily" in Section 3.0l(a) and G) of the RH-IRR should be
declared void. To uphold the validity of Section 3.0l(a) and G) of the RH-IRR and
prohibit only those contraceptives that have the primary effect of being an abortive would
effectively "open the floodgates to the approval of contraceptives which may harm or
destroy the life of the unborn from conception/fertilization in violation of Article II,
Section 12 of the Constitution."
175

To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the
constitutional protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it requires the
inclusion of hormonal contraceptives, intrauterine devices, injectables and family
products and supplies in the National Drug Formulary and the inclusion of the same in
the regular purchase of essential medicines and supplies of all national hospitals.
176
Citing
various studies on the matter, the petitioners posit that the risk of developing breast and
cervical cancer is greatly increased in women who use oral contraceptives as compared to
women who never use them. They point out that the risk is decreased when the use of
contraceptives is discontinued. Further, it is contended that the use of combined oral
contraceptive pills is associated with a threefold increased risk of venous
thromboembolism, a twofold increased risk of ischematic stroke, and an indeterminate
effect on risk of myocardial infarction.
177
Given the definition of "reproductive health"
and "sexual health" under Sections 4(p)
178
and (w)
179
of the RH Law, the petitioners
assert that the assailed legislation only seeks to ensure that women have pleasurable and
satisfying sex lives.
180

The OSG, however, points out that Section 15, Article II of the Constitution is not self-
executory, it being a mere statement of the administration's principle and policy. Even if
it were self-executory, the OSG posits that medical authorities refute the claim that
contraceptive pose a danger to the health of women.
181

The Court's Position
A component to the right to life is the constitutional right to health. In this regard, the
Constitution is replete with provisions protecting and promoting the right to health.
Section 15, Article II of the Constitution provides:
Section 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them.
A portion of Article XIII also specifically provides for the States' duty to provide for the
health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive approach to health
development which shall endeavor to make essential goods, health and other social
services available to all the people at affordable cost. There shall be priority for the needs
of the underprivileged, sick, elderly, disabled, women, and children. The State shall
endeavor to provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug regulatory
system and undertake appropriate health, manpower development, and research,
responsive to the country's health needs and problems.
Section 13. The State shall establish a special agency for disabled person for their
rehabilitation, self-development, and self-reliance, and their integration into the
mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade malpractices and from
substandard or hazardous products.
Contrary to the respondent's notion, however, these provisions are self-executing. Unless
the provisions clearly express the contrary, the provisions of the Constitution should be
considered self-executory. There is no need for legislation to implement these self-
executing provisions.
182
In Manila Prince Hotel v. GSIS,
183
it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a
constitutional mandate, the presumption now is that all provisions of the constitution are
self-executing. If the constitutional provisions are treated as requiring legislation instead
of self-executing, the legislature would have the power to ignore and practically nullify
the mandate of the fundamental law. This can be cataclysmic. That is why the prevailing
view is, as it has always been, that
... in case of doubt, the Constitution should be considered self-executing rather than non-
self-executing. . . . Unless the contrary is clearly intended, the provisions of the
Constitution should be considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could make
them entirely meaningless by simply refusing to pass the needed implementing statute.
(Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not
question contraception and contraceptives per se.
184
In fact, ALFI prays that the status
quo - under R.A. No. 5921 and R.A. No. 4729, the sale and distribution of contraceptives
are not prohibited when they are dispensed by a prescription of a duly licensed by a
physician - be maintained.
185

The legislative intent in the enactment of the RH Law in this regard is to leave intact the
provisions of R.A. No. 4729. There is no intention at all to do away with it. It is still a
good law and its requirements are still in to be complied with. Thus, the Court agrees
with the observation of respondent Lagman that the effectivity of the RH Law will not
lead to the unmitigated proliferation of contraceptives since the sale, distribution and
dispensation of contraceptive drugs and devices will still require the prescription of a
licensed physician. With R.A. No. 4729 in place, there exists adequate safeguards to
ensure the public that only contraceptives that are safe are made available to the public.
As aptly explained by respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of contraceptives, the same cannot be
dispensed and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or
Distribution of Contraceptive Drugs and Devices" and Republic Act No. 5921 or "An Act
Regulating the Practice of Pharmacy and Setting Standards of Pharmaceutical Education
in the Philippines and for Other Purposes" are not repealed by the RH Law and the
provisions of said Acts are not inconsistent with the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive drugs and
devices are particularly governed by RA No. 4729 which provides in full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell,
dispense or otherwise distribute whether for or without consideration, any contraceptive
drug or device, unless such sale, dispensation or distribution is by a duly licensed drug
store or pharmaceutical company and with the prescription of a qualified medical
practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is
used exclusively for the purpose of preventing fertilization of the female ovum:
and
"(b) "Contraceptive device" is any instrument, device, material, or agent
introduced into the female reproductive system for the primary purpose of
preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall
be punished with a fine of not more than five hundred pesos or an imprisonment of not
less than six months or more than one year or both in the discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine,
pharmaceutical, or drug of whatever nature and kind or device shall be compounded,
dispensed, sold or resold, or otherwise be made available to the consuming public except
through a prescription drugstore or hospital pharmacy, duly established in accordance
with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and other
relevant statutes, the pretension of the petitioners that the RH Law will lead to the
unmitigated proliferation of contraceptives, whether harmful or not, is completely
unwarranted and baseless.
186
[Emphases in the Original. Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of the RH Law
which provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall
procure, distribute to LGUs and monitor the usage of family planning supplies for the
whole country. The DOH shall coordinate with all appropriate local government bodies
to plan and implement this procurement and distribution program. The supply and budget
allotments shall be based on, among others, the current levels and projections of the
following:
(a) Number of women of reproductive age and couples who want to space or
limit their children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and monitoring
program consistent with the overall provisions of this Act and the guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider
the provisions of R.A. No. 4729, which is still in effect, and ensure that the
contraceptives that it will procure shall be from a duly licensed drug store or
pharmaceutical company and that the actual dispensation of these contraceptive drugs
and devices will done following a prescription of a qualified medical practitioner. The
distribution of contraceptive drugs and devices must not be indiscriminately done. The
public health must be protected by all possible means. As pointed out by Justice De
Castro, a heavy responsibility and burden are assumed by the government in supplying
contraceptive drugs and devices, for it may be held accountable for any injury, illness or
loss of life resulting from or incidental to their use.
187

At any rate, it bears pointing out that not a single contraceptive has yet been submitted to
the FDA pursuant to the RH Law. It behooves the Court to await its determination which
drugs or devices are declared by the FDA as safe, it being the agency tasked to ensure
that food and medicines available to the public are safe for public consumption.
Consequently, the Court finds that, at this point, the attack on the RH Law on this ground
is premature. Indeed, the various kinds of contraceptives must first be measured up to the
constitutional yardstick as expounded herein, to be determined as the case presents itself.
At this point, the Court is of the strong view that Congress cannot legislate that hormonal
contraceptives and intra-uterine devices are safe and non-abortifacient. The first sentence
of Section 9 that ordains their inclusion by the National Drug Formulary in the EDL by
using the mandatory "shall" is to be construed as operative only after they have been
tested, evaluated, and approved by the FDA. The FDA, not Congress, has the expertise to
determine whether a particular hormonal contraceptive or intrauterine device is safe and
non-abortifacient. The provision of the third sentence concerning the requirements for the
inclusion or removal of a particular family planning supply from the EDL supports this
construction.
Stated differently, the provision in Section 9 covering the inclusion of hormonal
contraceptives, intra-uterine devices, injectables, and other safe, legal, non-abortifacient
and effective family planning products and supplies by the National Drug Formulary in
the EDL is not mandatory. There must first be a determination by the FDA that they are
in fact safe, legal, non-abortifacient and effective family planning products and supplies.
There can be no predetermination by Congress that the gamut of contraceptives are "safe,
legal, non-abortifacient and effective" without the proper scientific examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are not covered by
the constitutional proscription, there are those who, because of their religious education
and background, sincerely believe that contraceptives, whether abortifacient or not, are
evil. Some of these are medical practitioners who essentially claim that their beliefs
prohibit not only the use of contraceptives but also the willing participation and
cooperation in all things dealing with contraceptive use. Petitioner PAX explained that
"contraception is gravely opposed to marital chastity, it is contrary to the good of the
transmission of life, and to the reciprocal self-giving of the spouses; it harms true love
and denies the sovereign rule of God in the transmission of Human life."
188

The petitioners question the State-sponsored procurement of contraceptives, arguing that
the expenditure of their taxes on contraceptives violates the guarantee of religious
freedom since contraceptives contravene their religious beliefs.
189

2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address religious
sentiments by making provisions for a conscientious objector, the constitutional
guarantee is nonetheless violated because the law also imposes upon the conscientious
objector the duty to refer the patient seeking reproductive health services to another
medical practitioner who would be able to provide for the patient's needs. For the
petitioners, this amounts to requiring the conscientious objector to cooperate with the
very thing he refuses to do without violating his/her religious beliefs.
190

They further argue that even if the conscientious objector's duty to refer is recognized, the
recognition is unduly limited, because although it allows a conscientious objector in
Section 23 (a)(3) the option to refer a patient seeking reproductive health services and
information - no escape is afforded the conscientious objector in Section 23 (a)(l) and (2),
i.e. against a patient seeking reproductive health procedures. They claim that the right of
other individuals to conscientiously object, such as: a) those working in public health
facilities referred to in Section 7; b) public officers involved in the implementation of the
law referred to in Section 23(b ); and c) teachers in public schools referred to in Section
14 of the RH Law, are also not recognize.
191

Petitioner Echavez and the other medical practitioners meanwhile, contend that the
requirement to refer the matter to another health care service provider is still considered a
compulsion on those objecting healthcare service providers. They add that compelling
them to do the act against their will violates the Doctrine of Benevolent Neutrality.
Sections 9, 14 and 1 7 of the law are too secular that they tend to disregard the religion of
Filipinos. Authorizing the use of contraceptives with abortive effects, mandatory sex
education, mandatory pro-bono reproductive health services to indigents encroach upon
the religious freedom of those upon whom they are required.
192

Petitioner CFC also argues that the requirement for a conscientious objector to refer the
person seeking reproductive health care services to another provider infringes on one's
freedom of religion as it forces the objector to become an unwilling participant in the
commission of a serious sin under Catholic teachings. While the right to act on one's
belief may be regulated by the State, the acts prohibited by the RH Law are passive acts
which produce neither harm nor injury to the public.
193

Petitioner CFC adds that the RH Law does not show compelling state interest to justify
regulation of religious freedom because it mentions no emergency, risk or threat that
endangers state interests. It does not explain how the rights of the people (to equality,
non-discrimination of rights, sustainable human development, health, education,
information, choice and to make decisions according to religious convictions, ethics,
cultural beliefs and the demands of responsible parenthood) are being threatened or are
not being met as to justify the impairment of religious freedom.
194

Finally, the petitioners also question Section 15 of the RH Law requiring would-be
couples to attend family planning and responsible parenthood seminars and to obtain a
certificate of compliance. They claim that the provision forces individuals to participate
in the implementation of the RH Law even if it contravenes their religious beliefs.
195
As
the assailed law dangles the threat of penalty of fine and/or imprisonment in case of non-
compliance with its provisions, the petitioners claim that the RH Law forcing them to
provide, support and facilitate access and information to contraception against their
beliefs must be struck down as it runs afoul to the constitutional guarantee of religious
freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not provide that a
specific mode or type of contraceptives be used, be it natural or artificial. It neither
imposes nor sanctions any religion or belief.
196
They point out that the RH Law only
seeks to serve the public interest by providing accessible, effective and quality
reproductive health services to ensure maternal and child health, in line with the State's
duty to bring to reality the social justice health guarantees of the Constitution,
197
and that
what the law only prohibits are those acts or practices, which deprive others of their right
to reproductive health.
198
They assert that the assailed law only seeks to guarantee
informed choice, which is an assurance that no one will be compelled to violate his
religion against his free will.
199

The respondents add that by asserting that only natural family planning should be
allowed, the petitioners are effectively going against the constitutional right to religious
freedom, the same right they invoked to assail the constitutionality of the RH Law.
200
In
other words, by seeking the declaration that the RH Law is unconstitutional, the
petitioners are asking that the Court recognize only the Catholic Church's sanctioned
natural family planning methods and impose this on the entire citizenry.
201

With respect to the duty to refer, the respondents insist that the same does not violate the
constitutional guarantee of religious freedom, it being a carefully balanced compromise
between the interests of the religious objector, on one hand, who is allowed to keep silent
but is required to refer -and that of the citizen who needs access to information and who
has the right to expect that the health care professional in front of her will act
professionally. For the respondents, the concession given by the State under Section 7
and 23(a)(3) is sufficient accommodation to the right to freely exercise one's religion
without unnecessarily infringing on the rights of others.
202

Whatever burden is placed on the petitioner's religious freedom is minimal as the duty to
refer is limited in duration, location and impact.
203

Regarding mandatory family planning seminars under Section 15 , the respondents claim
that it is a reasonable regulation providing an opportunity for would-be couples to have
access to information regarding parenthood, family planning, breastfeeding and infant
nutrition. It is argued that those who object to any information received on account of
their attendance in the required seminars are not compelled to accept information given to
them. They are completely free to reject any information they do not agree with and
retain the freedom to decide on matters of family life without intervention of the State.
204

For their part, respondents De Venecia et al., dispute the notion that natural family
planning is the only method acceptable to Catholics and the Catholic hierarchy. Citing
various studies and surveys on the matter, they highlight the changing stand of the
Catholic Church on contraception throughout the years and note the general acceptance
of the benefits of contraceptives by its followers in planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up
of people of diverse ethnic, cultural and religious beliefs and backgrounds. History has
shown us that our government, in law and in practice, has allowed these various religious,
cultural, social and racial groups to thrive in a single society together. It has embraced
minority groups and is tolerant towards all - the religious people of different sects and the
non-believers. The undisputed fact is that our people generally believe in a deity,
whatever they conceived Him to be, and to whom they call for guidance and
enlightenment in crafting our fundamental law. Thus, the preamble of the present
Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a
just and humane society, and establish a Government that shall embody our ideals and
aspirations, promote the common good, conserve and develop our patrimony, and secure
to ourselves and our posterity, the blessings of independence and democracy under the
rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain
and promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their spirituality
innate in our nature and consciousness as a people, shaped by tradition and historical
experience. As this is embodied in the preamble, it means that the State recognizes with
respect the influence of religion in so far as it instills into the mind the purest principles
of morality.
205
Moreover, in recognition of the contributions of religion to society, the
1935, 1973 and 1987 constitutions contain benevolent and accommodating provisions
towards religions such as tax exemption of church property, salary of religious officers in
government institutions, and optional religious instructions in public schools.
The Framers, however, felt the need to put up a strong barrier so that the State would not
encroach into the affairs of the church, and vice-versa. The principle of separation of
Church and State was, thus, enshrined in Article II, Section 6 of the 1987 Constitution,
viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on mutual
respect.1wphi1 Generally, the State cannot meddle in the internal affairs of the church,
much less question its faith and dogmas or dictate upon it. It cannot favor one religion
and discriminate against another. On the other hand, the church cannot impose its beliefs
and convictions on the State and the rest of the citizenry. It cannot demand that the nation
follow its beliefs, even if it sincerely believes that they are good for the country.
Consistent with the principle that not any one religion should ever be preferred over
another, the Constitution in the above-cited provision utilizes the term "church" in its
generic sense, which refers to a temple, a mosque, an iglesia, or any other house of God
which metaphorically symbolizes a religious organization. Thus, the "Church" means the
religious congregations collectively.
Balancing the benefits that religion affords and the need to provide an ample barrier to
protect the State from the pursuit of its secular objectives, the Constitution lays down the
following mandate in Article III, Section 5 and Article VI, Section 29 (2), of 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 preference, shall forever be allowed. No religious test
shall be required for the exercise of civil or political rights.
Section 29.
xxx.
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, 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.
In short, the constitutional assurance of religious freedom provides two guarantees: the
Establishment Clause and the Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring any religion or
favoring any religion as against other religions. It mandates a strict neutrality in affairs
among religious groups."
206
Essentially, it prohibits the establishment of a state religion
and the use of public resources for the support or prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the inviolability
of the human conscience.
207
Under this part of religious freedom guarantee, the State is
prohibited from unduly interfering with the outside manifestations of one's belief and
faith.
208
Explaining the concept of religious freedom, the Court, in Victoriano v. Elizalde
Rope Workers Union
209
wrote:
The constitutional provisions not only prohibits legislation for the support of any
religious tenets or the modes of worship of any sect, thus forestalling compulsion by law
of the acceptance of any creed or the practice of any form of worship (U.S. Ballard, 322
U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of one's chosen form of
religion within limits of utmost amplitude. It has been said that the religion clauses of the
Constitution are all designed to protect the broadest possible liberty of conscience, to
allow each man to believe as his conscience directs, to profess his beliefs, and to live as
he believes he ought to live, consistent with the liberty of others and with the common
good. Any legislation whose effect or purpose is to impede the observance of one or all
religions, or to discriminate invidiously between the religions, is invalid, even though the
burden may be characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10
L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct by enacting, within its
power, a general law which has for its purpose and effect to advance the state's secular
goals, the statute is valid despite its indirect burden on religious observance, unless the
state can accomplish its purpose without imposing such burden. (Braunfeld v. Brown,
366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5
and 449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve contradictory
purposes. They have a single goal-to promote freedom of individual religious beliefs and
practices. In simplest terms, the free exercise clause prohibits government from inhibiting
religious beliefs with penalties for religious beliefs and practice, while the establishment
clause prohibits government from inhibiting religious belief with rewards for religious
beliefs and practices. In other words, the two religion clauses were intended to deny
government the power to use either the carrot or the stick to influence individual religious
beliefs and practices.
210

Corollary to the guarantee of free exercise of one's religion is the principle that the
guarantee of religious freedom is comprised of two parts: the freedom to believe, and the
freedom to act on one's belief. The first part is absolute. As explained in Gerona v.
Secretary of Education:
211

The realm of belief and creed is infinite and limitless bounded only by one's imagination
and thought. So is the freedom of belief, including religious belief, limitless and without
bounds. One may believe in most anything, however strange, bizarre and unreasonable
the same may appear to others, even heretical when weighed in the scales of orthodoxy or
doctrinal standards. But between the freedom of belief and the exercise of said belief,
there is quite a stretch of road to travel.
212

The second part however, is limited and subject to the awesome power of the State and
can be enjoyed only with proper regard to the rights of others. It is "subject to regulation
where the belief is translated into external acts that affect the public welfare."
213

Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the Court adheres
to the doctrine of benevolent neutrality. This has been clearly decided by the Court in
Estrada v. Escritor, (Escritor)
214
where it was stated "that benevolent neutrality-
accommodation, whether mandatory or permissive, is the spirit, intent and framework
underlying the Philippine Constitution."
215
In the same case, it was further explained that"
The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the government's favored
form of religion, but to allow individuals and groups to exercise their religion without
hindrance. "The purpose of accommodation is to remove a burden on, or facilitate the
exercise of, a person's or institution's religion."
216
"What is sought under the theory of
accommodation is not a declaration of unconstitutionality of a facially neutral law, but an
exemption from its application or its 'burdensome effect,' whether by the legislature or
the courts."
217

In ascertaining the limits of the exercise of religious freedom, the compelling state
interest test is proper.
218
Underlying the compelling state interest test is the notion that
free exercise is a fundamental right and that laws burdening it should be subject to strict
scrutiny.
219
In Escritor, it was written:
Philippine jurisprudence articulates several tests to determine these limits. Beginning
with the first case on the Free Exercise Clause, American Bible Society, the Court
mentioned the "clear and present danger" test but did not employ it. Nevertheless, this
test continued to be cited in subsequent cases on religious liberty. The Gerona case then
pronounced that the test of permissibility of religious freedom is whether it violates the
established institutions of society and law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the doctrine that a law of general
applicability may burden religious exercise provided the law is the least restrictive means
to accomplish the goal of the law. The case also used, albeit inappropriately, the
"compelling state interest" test. After Victoriano , German went back to the Gerona rule.
Ebralinag then employed the "grave and immediate danger" test and overruled the
Gerona test. The fairly recent case of Iglesia ni Cristo went back to the " clear and present
danger" test in the maiden case of A merican Bible Society. Not surprisingly, all the cases
which employed the "clear and present danger" or "grave and immediate danger" test
involved, in one form or another, religious speech as this test is often used in cases on
freedom of expression. On the other hand, the Gerona and German cases set the rule that
religious freedom will not prevail over established institutions of society and law.
Gerona, however, which was the authority cited by German has been overruled by
Ebralinag which employed the "grave and immediate danger" test . Victoriano was the
only case that employed the "compelling state interest" test, but as explained previously,
the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in A merican Bible Society, Ebralinag and
Iglesia ni Cristo where the "clear and present danger" and "grave and immediate danger"
tests were appropriate as speech has easily discernible or immediate effects. The Gerona
and German doctrine, aside from having been overruled, is not congruent with the
benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar to
Victoriano, the present case involves purely conduct arising from religious belief. The
"compelling state interest" test is proper where conduct is involved for the whole gamut
of human conduct has different effects on the state's interests: some effects may be
immediate and short-term while others delayed and far-reaching. A test that would
protect the interests of the state in preventing a substantive evil, whether immediate or
delayed, is therefore necessary. However, not any interest of the state would suffice to
prevail over the right to religious freedom as this is a fundamental right that enjoys a
preferred position in the hierarchy of rights - "the most inalienable and sacred of all
human rights", in the words of Jefferson. This right is sacred for an invocation of the Free
Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of
limited government is premised upon an acknowledgment of such higher sovereignty,
thus the Filipinos implore the "aid of Almighty God in order to build a just and humane
society and establish a government." As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental right. A mere balancing of
interests which balances a right with just a colorable state interest is therefore not
appropriate. Instead, only a compelling interest of the state can prevail over the
fundamental right to religious liberty. The test requires the state to carry a heavy burden,
a compelling one, for to do otherwise would allow the state to batter religion, especially
the less powerful ones until they are destroyed. In determining which shall prevail
between the state's interest and religious liberty, reasonableness shall be the guide. The
"compelling state interest" serves the purpose of revering religious liberty while at the
same time affording protection to the paramount interests of the state. This was the test
used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end,
the "compelling state interest" test, by upholding the paramount interests of the state,
seeks to protect the very state, without which, religious liberty will not be preserved.
[Emphases in the original. Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the Court to determine whether the
use of contraceptives or one's participation in the support of modem reproductive health
measures is moral from a religious standpoint or whether the same is right or wrong
according to one's dogma or belief. For the Court has declared that matters dealing with
"faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church
... are unquestionably ecclesiastical matters which are outside the province of the civil
courts."
220
The jurisdiction of the Court extends only to public and secular morality.
Whatever pronouncement the Court makes in the case at bench should be understood
only in this realm where it has authority. Stated otherwise, while the Court stands without
authority to rule on ecclesiastical matters, as vanguard of the Constitution, it does have
authority to determine whether the RH Law contravenes the guarantee of religious
freedom.
At first blush, it appears that the RH Law recognizes and respects religion and religious
beliefs and convictions. It is replete with assurances the no one can be compelled to
violate the tenets of his religion or defy his religious convictions against his free will.
Provisions in the RH Law respecting religious freedom are the following:
1. The State recognizes and guarantees the human rights of all persons including their
right to equality and nondiscrimination of these rights, the right to sustainable human
development, the right to health which includes reproductive health, the right 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. [Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the foundation of
the family which in turn is the foundation of the nation. Pursuant thereto, the State shall
defend:
(a) The right of spouses to found a family in accordance with their religious convictions
and the demands of responsible parenthood." [Section 2, Declaration of Policy]
3. The State shall promote and provide information and access, without bias, to all
methods of family planning, including effective natural and modern methods which have
been proven medically safe, legal, non-abortifacient, and effective in accordance with
scientific and evidence-based medical research standards such as those registered and
approved by the FDA for the poor and marginalized as identified through the NHTS-PR
and other government measures of identifying marginalization: Provided, That the State
shall also provide funding support to promote modern natural methods of family
planning, especially the Billings Ovulation Method, consistent with the needs of
acceptors and their religious convictions. [Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable individuals and couples to have the
number of children they desire with due consideration to the health, particularly of
women, and the resources available and affordable to them and in accordance with
existing laws, public morals and their religious convictions. [Section 3CDJ
5. 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. [Section
3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's and people's
organizations, civil society, faith-based organizations, the religious sector and
communities is crucial to ensure that reproductive health and population and
development policies, plans, and programs will address the priority needs of women, the
poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond to the needs
and aspirations of the family and children. It is likewise a shared responsibility between
parents to determine and achieve the desired number of children, spacing and timing of
their children according to their own family life aspirations, taking into account
psychological preparedness, health status, sociocultural and economic concerns
consistent with their religious convictions. [Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use of
contraceptives. To some medical practitioners, however, the whole idea of using
contraceptives is an anathema. Consistent with the principle of benevolent neutrality,
their beliefs should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts what the government can do
with religion, it also limits what religious sects can or cannot do with the government.
They can neither cause the government to adopt their particular doctrines as policy for
everyone, nor can they not cause the government to restrict other groups. To do so, in
simple terms, would cause the State to adhere to a particular religion and, thus,
establishing a state religion.
Consequently, the petitioners are misguided in their supposition that the State cannot
enhance its population control program through the RH Law simply because the
promotion of contraceptive use is contrary to their religious beliefs. Indeed, the State is
not precluded to pursue its legitimate secular objectives without being dictated upon by
the policies of any one religion. One cannot refuse to pay his taxes simply because it will
cloud his conscience. The demarcation line between Church and State demands that one
render unto Caesar the things that are Caesar's and unto God the things that are God's.
221

The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health manifestly
respects diverse religious beliefs in line with the Non-Establishment Clause, the same
conclusion cannot be reached with respect to Sections 7, 23 and 24 thereof. The said
provisions commonly mandate that a hospital or a medical practitioner to immediately
refer a person seeking health care and services under the law to another accessible
healthcare provider despite their conscientious objections based on religious or ethical
beliefs.
In a situation where the free exercise of religion is allegedly burdened by government
legislation or practice, the compelling state interest test in line with the Court's espousal
of the Doctrine of Benevolent Neutrality in Escritor, finds application. In this case, the
conscientious objector's claim to religious freedom would warrant an exemption from
obligations under the RH Law, unless the government succeeds in demonstrating a more
compelling state interest in the accomplishment of an important secular objective.
Necessarily so, the plea of conscientious objectors for exemption from the RH Law
deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right to
religious freedom has been burdened. As in Escritor, there is no doubt that an intense tug-
of-war plagues a conscientious objector. One side coaxes him into obedience to the law
and the abandonment of his religious beliefs, while the other entices him to a clean
conscience yet under the pain of penalty. The scenario is an illustration of the
predicament of medical practitioners whose religious beliefs are incongruent with what
the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law violates the
religious belief and conviction of a conscientious objector. Once the medical practitioner,
against his will, refers a patient seeking information on modem reproductive health
products, services, procedures and methods, his conscience is immediately burdened as
he has been compelled to perform an act against his beliefs. As Commissioner Joaquin A.
Bernas (Commissioner Bernas) has written, "at the basis of the free exercise clause is the
respect for the inviolability of the human conscience.
222

Though it has been said that the act of referral is an opt-out clause, it is, however, a false
compromise because it makes pro-life health providers complicit in the performance of
an act that they find morally repugnant or offensive. They cannot, in conscience, do
indirectly what they cannot do directly. One may not be the principal, but he is equally
guilty if he abets the offensive act by indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with the right to
free speech, it being an externalization of one's thought and conscience. This in turn
includes the right to be silent. With the constitutional guarantee of religious freedom
follows the protection that should be afforded to individuals in communicating their
beliefs to others as well as the protection for simply being silent. The Bill of Rights
guarantees the liberty of the individual to utter what is in his mind and the liberty not to
utter what is not in his mind.
223
While the RH Law seeks to provide freedom of choice
through informed consent, freedom of choice guarantees the liberty of the religious
conscience and prohibits any degree of compulsion or burden, whether direct or indirect,
in the practice of one's religion.
224

In case of conflict between the religious beliefs and moral convictions of individuals, on
one hand, and the interest of the State, on the other, to provide access and information on
reproductive health products, services, procedures and methods to enable the people to
determine the timing, number and spacing of the birth of their children, the Court is of the
strong view that the religious freedom of health providers, whether public or private,
should be accorded primacy. Accordingly, a conscientious objector should be exempt
from compliance with the mandates of the RH Law. If he would be compelled to act
contrary to his religious belief and conviction, it would be violative of "the principle of
non-coercion" enshrined in the constitutional right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session, found in
the case of Doogan and Wood v. NHS Greater Glasgow and Clyde Health Board,
225
that
the midwives claiming to be conscientious objectors under the provisions of Scotland's
Abortion Act of 1967, could not be required to delegate, supervise or support staff on
their labor ward who were involved in abortions.
226
The Inner House stated "that if
'participation' were defined according to whether the person was taking part 'directly' or '
indirectly' this would actually mean more complexity and uncertainty."
227

While the said case did not cover the act of referral, the applicable principle was the same
- they could not be forced to assist abortions if it would be against their conscience or
will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty hospitals and hospitals
owned and operated by a religious group and health care service providers. Considering
that Section 24 of the RH Law penalizes such institutions should they fail or refuse to
comply with their duty to refer under Section 7 and Section 23(a)(3), the Court deems
that it must be struck down for being violative of the freedom of religion. The same
applies to Section 23(a)(l) and (a)(2) in relation to Section 24, considering that in the
dissemination of information regarding programs and services and in the performance of
reproductive health procedures, the religious freedom of health care service providers
should be respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive
Secretary
228
it was stressed:
Freedom of religion was accorded preferred status by the framers of our fundamental law.
And this Court has consistently affirmed this preferred status, well aware that it is
"designed to protect the broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs, and to live as he believes he ought
to live, consistent with the liberty of others and with the common good."
10

The Court is not oblivious to the view that penalties provided by law endeavour to ensure
compliance. Without set consequences for either an active violation or mere inaction, a
law tends to be toothless and ineffectual. Nonetheless, when what is bartered for an
effective implementation of a law is a constitutionally-protected right the Court firmly
chooses to stamp its disapproval. The punishment of a healthcare service provider, who
fails and/or refuses to refer a patient to another, or who declines to perform reproductive
health procedure on a patient because incompatible religious beliefs, is a clear inhibition
of a constitutional guarantee which the Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal health
officers, chiefs of hospital, head nurses, supervising midwives, among others, who by
virtue of their office are specifically charged with the duty to implement the provisions of
the RPRH Act and these Rules, cannot be considered as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The conscientious
objection clause should be equally protective of the religious belief of public health
officers. There is no perceptible distinction why they should not be considered exempt
from the mandates of the law. The protection accorded to other conscientious objectors
should equally apply to all medical practitioners without distinction whether they belong
to the public or private sector. After all, the freedom to believe is intrinsic in every
individual and the protective robe that guarantees its free exercise is not taken off even if
one acquires employment in the government.
It should be stressed that intellectual liberty occupies a place inferior to none in the
hierarchy of human values. The mind must be free to think what it wills, whether in the
secular or religious sphere, to give expression to its beliefs by oral discourse or through
the media and, thus, seek other candid views in occasions or gatherings or in more
permanent aggrupation. Embraced in such concept then are freedom of religion, freedom
of speech, of the press, assembly and petition, and freedom of association.
229

The discriminatory provision is void not only because no such exception is stated in the
RH Law itself but also because it is violative of the equal protection clause in the
Constitution. Quoting respondent Lagman, if there is any conflict between the RH-IRR
and the RH Law, the law must prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on page 52, you
mentioned RH Law is replete with provisions in upholding the freedom of religion and
respecting religious convictions. Earlier, you affirmed this with qualifications. Now, you
have read, I presumed you have read the IRR-Implementing Rules and Regulations of the
RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not
thoroughly dissected the nuances of the provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law. But
in the IRR it says: " .... skilled health professionals such as provincial, city or municipal
health officers, chief of hospitals, head nurses, supervising midwives, among others, who
by virtue of their office are specifically charged with the duty to implement the
provisions of the RPRH Act and these Rules, cannot be considered as conscientious
objectors." Do you agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the private practitioners who can be
conscientious objectors, skilled health professionals cannot be considered conscientious
objectors. Do you agree with this? Is this not against the constitutional right to the
religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the law must prevail.
230

Compelling State Interest
The foregoing discussion then begets the question on whether the respondents, in defense
of the subject provisions, were able to: 1] demonstrate a more compelling state interest to
restrain conscientious objectors in their choice of services to render; and 2] discharge the
burden of proof that the obligatory character of the law is the least intrusive means to
achieve the objectives of the law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain. The
OSG was curiously silent in the establishment of a more compelling state interest that
would rationalize the curbing of a conscientious objector's right not to adhere to an action
contrary to his religious convictions. During the oral arguments, the OSG maintained the
same silence and evasion. The Transcripts of the Stenographic Notes disclose the
following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is the compelling State
interest in imposing this duty to refer to a conscientious objector which refuses to do so
because of his religious belief?
Senior State Solicitor Hilbay:
Ahh, Your Honor, ..
Justice De Castro:
What is the compelling State interest to impose this burden?
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the standard is a compelling State
interest, this is an ordinary health legislation involving professionals. This is not a free
speech matter or a pure free exercise matter. This is a regulation by the State of the
relationship between medical doctors and their patients.
231

Resultantly, the Court finds no compelling state interest which would limit the free
exercise clause of the conscientious objectors, however few in number. Only the
prevention of an immediate and grave danger to the security and welfare of the
community can justify the infringement of religious freedom. If the government fails to
show the seriousness and immediacy of the threat, State intrusion is constitutionally
unacceptable.
232

Freedom of religion means more than just the freedom to believe. It also means the
freedom to act or not to act according to what one believes. And this freedom is violated
when one is compelled to act against one's belief or is prevented from acting according to
one's belief.
233

Apparently, in these cases, there is no immediate danger to the life or health of an
individual in the perceived scenario of the subject provisions. After all, a couple who
plans the timing, number and spacing of the birth of their children refers to a future event
that is contingent on whether or not the mother decides to adopt or use the information,
product, method or supply given to her or whether she even decides to become pregnant
at all. On the other hand, the burden placed upon those who object to contraceptive use is
immediate and occurs the moment a patient seeks consultation on reproductive health
matters.
Moreover, granting that a compelling interest exists to justify the infringement of the
conscientious objector's religious freedom, the respondents have failed to demonstrate
"the gravest abuses, endangering paramount interests" which could limit or override a
person's fundamental right to religious freedom. Also, the respondents have not presented
any government effort exerted to show that the means it takes to achieve its legitimate
state objective is the least intrusive means.
234
Other than the assertion that the act of
referring would only be momentary, considering that the act of referral by a conscientious
objector is the very action being contested as violative of religious freedom, it behooves
the respondents to demonstrate that no other means can be undertaken by the State to
achieve its objective without violating the rights of the conscientious objector. The health
concerns of women may still be addressed by other practitioners who may perform
reproductive health-related procedures with open willingness and motivation. Suffice it to
say, a person who is forced to perform an act in utter reluctance deserves the protection
of the Court as the last vanguard of constitutional freedoms.
At any rate, there are other secular steps already taken by the Legislature to ensure that
the right to health is protected. Considering other legislations as they stand now, R.A .
No. 4 729 or the Contraceptive Act, R.A. No. 6365 or "The Population Act of the
Philippines" and R.A. No. 9710, otherwise known as "The Magna Carta of Women,"
amply cater to the needs of women in relation to health services and programs. The
pertinent provision of Magna Carta on comprehensive health services and programs for
women, in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State
shall, at all times, provide for a comprehensive, culture-sensitive, and gender-responsive
health services and programs covering all stages of a woman's life cycle and which
addresses the major causes of women's mortality and morbidity: Provided, That in the
provision for comprehensive health services, due respect shall be accorded to women's
religious convictions, the rights of the spouses to found a family in accordance with their
religious convictions, and the demands of responsible parenthood, and the right of
women to protection from hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address
pregnancy and infant health and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family
planning;
(4) Family and State collaboration in youth sexuality education and
health services without prejudice to the primary right and duty of
parents to educate their children;
(5) Prevention and management of reproductive tract infections,
including sexually transmitted diseases, HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like
breast and cervical cancers, and other gynecological conditions and
disorders;
(7) Prevention of abortion and management of pregnancy-related
complications;
(8) In cases of violence against women and children, women and
children victims and survivors shall be provided with comprehensive
health services that include psychosocial, therapeutic, medical, and
legal interventions and assistance towards healing, recovery, and
empowerment;
(9) Prevention and management of infertility and sexual dysfunction
pursuant to ethical norms and medical standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health
problems of women and girls. In addition, healthy lifestyle activities
are encouraged and promoted through programs and projects as
strategies in the prevention of diseases.
(b) Comprehensive Health Information and Education. - The State shall provide women
in all sectors with appropriate, timely, complete, and accurate information and education
on all the above-stated aspects of women's health in government education and training
programs, with due regard to the following:
(1) The natural and primary right and duty of parents in the rearing of
the youth and the development of moral character and the right of
children to be brought up in an atmosphere of morality and rectitude for
the enrichment and strengthening of character;
(2) The formation of a person's sexuality that affirms human dignity;
and
(3) Ethical, legal, safe, and effective family planning methods including
fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling
state interest was "Fifteen maternal deaths per day, hundreds of thousands of unintended
pregnancies, lives changed, x x x."
235
He, however, failed to substantiate this point by
concrete facts and figures from reputable sources.
The undisputed fact, however, is that the World Health Organization reported that the
Filipino maternal mortality rate dropped to 48 percent from 1990 to 2008,
236
although
there was still no RH Law at that time. Despite such revelation, the proponents still insist
that such number of maternal deaths constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of social healthcare
programs for Filipino women, they could not be solved by a measure that puts an
unwarrantable stranglehold on religious beliefs in exchange for blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set forth in the
law. While generally healthcare service providers cannot be forced to render reproductive
health care procedures if doing it would contravene their religious beliefs, an exception
must be made in life-threatening cases that require the performance of emergency
procedures. In these situations, the right to life of the mother should be given preference,
considering that a referral by a medical practitioner would amount to a denial of service,
resulting to unnecessarily placing the life of a mother in grave danger. Thus, during the
oral arguments, Atty. Liban, representing CFC, manifested: "the forced referral clause
that we are objecting on grounds of violation of freedom of religion does not contemplate
an emergency."
237

In a conflict situation between the life of the mother and the life of a child, the doctor is
morally obliged always to try to save both lives. If, however, it is impossible, the
resulting death to one should not be deliberate. Atty. Noche explained:
Principle of Double-Effect. - May we please remind the principal author of the RH Bill in
the House of Representatives of the principle of double-effect wherein intentional harm
on the life of either the mother of the child is never justified to bring about a "good"
effect. In a conflict situation between the life of the child and the life of the mother, the
doctor is morally obliged always to try to save both lives. However, he can act in favor of
one (not necessarily the mother) when it is medically impossible to save both, provided
that no direct harm is intended to the other. If the above principles are observed, the loss
of the child's life or the mother's life is not intentional and, therefore, unavoidable. Hence,
the doctor would not be guilty of abortion or murder. The mother is never pitted against
the child because both their lives are equally valuable.
238

Accordingly, if it is necessary to save the life of a mother, procedures endangering the
life of the child may be resorted to even if is against the religious sentiments of the
medical practitioner. As quoted above, whatever burden imposed upon a medical
practitioner in this case would have been more than justified considering the life he
would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15
239
as a condition for the issuance of a
marriage license, the Court finds the same to be a reasonable exercise of police power by
the government. A cursory reading of the assailed provision bares that the religious
freedom of the petitioners is not at all violated. All the law requires is for would-be
spouses to attend a seminar on parenthood, family planning breastfeeding and infant
nutrition. It does not even mandate the type of family planning methods to be included in
the seminar, whether they be natural or artificial. As correctly noted by the OSG, those
who receive any information during their attendance in the required seminars are not
compelled to accept the information given to them, are completely free to reject the
information they find unacceptable, and retain the freedom to decide on matters of family
life without the intervention of the State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the
provisions of the Constitution by intruding into marital privacy and autonomy. It argues
that it cultivates disunity and fosters animosity in the family rather than promote its
solidarity and total development.
240

The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it is the basic
social institution. In fact, one article, Article XV, is devoted entirely to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and
shall be protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious convictions and
the demands of responsible parenthood;
The right of children to assistance, including proper care and nutrition, and special
protection from all forms of neglect, abuse, cruelty, exploitation and other conditions
prejudicial to their development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and
implementation of policies and programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population growth,
contains provisions which tend to wreck the family as a solid social institution. It bars the
husband and/or the father from participating in the decision making process regarding
their common future progeny. It likewise deprives the parents of their authority over their
minor daughter simply because she is already a parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive health procedures on any
person of legal age on the ground of lack of consent or authorization of the following
persons in the following instances:
(i) Spousal consent in case of married persons: provided, That in case of disagreement,
the decision of the one undergoing the procedures shall prevail. [Emphasis supplied]
The above provision refers to reproductive health procedures like tubal litigation and
vasectomy which, by their very nature, should require mutual consent and decision
between the husband and the wife as they affect issues intimately related to the founding
of a family. Section 3, Art. XV of the Constitution espouses that the State shall defend
the "right of the spouses to found a family." One person cannot found a family. The right,
therefore, is shared by both spouses. In the same Section 3, their right "to participate in
the planning and implementation of policies and programs that affect them " is equally
recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving
absolute authority to the spouse who would undergo a procedure, and barring the other
spouse from participating in the decision would drive a wedge between the husband and
wife, possibly result in bitter animosity, and endanger the marriage and the family, all for
the sake of reducing the population. This would be a marked departure from the policy of
the State to protect marriage as an inviolable social institution.
241

Decision-making involving a reproductive health procedure is a private matter which
belongs to the couple, not just one of them. Any decision they would reach would affect
their future as a family because the size of the family or the number of their children
significantly matters. The decision whether or not to undergo the procedure belongs
exclusively to, and shared by, both spouses as one cohesive unit as they chart their own
destiny. It is a constitutionally guaranteed private right. Unless it prejudices the State,
which has not shown any compelling interest, the State should see to it that they chart
their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710,
otherwise known as the "Magna Carta for Women," provides that women shall have
equal rights in all matters relating to marriage and family relations, including the joint
decision on the number and spacing of their children. Indeed, responsible parenthood, as
Section 3(v) of the RH Law states, is a shared responsibility between parents. Section
23(a)(2)(i) of the RH Law should not be allowed to betray the constitutional mandate to
protect and strengthen the family by giving to only one spouse the absolute authority to
decide whether to undergo reproductive health procedure.
242

The right to chart their own destiny together falls within the protected zone of marital
privacy and such state intervention would encroach into the zones of spousal privacy
guaranteed by the Constitution. In our jurisdiction, the right to privacy was first
recognized in Marje v. Mutuc,
243
where the Court, speaking through Chief Justice
Fernando, held that "the right to privacy as such is accorded recognition independently of
its identification with liberty; in itself, it is fully deserving of constitutional
protection."
244
Marje adopted the ruling of the US Supreme Court in Griswold v.
Connecticut,
245
where Justice William O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older than our political
parties, older than our school system. Marriage is a coming together for better or for
worse, hopefully enduring, and intimate to the degree of being sacred. It is an association
that promotes a way of life, not causes; a harmony in living, not political faiths; a
bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a
purpose as any involved in our prior decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an unconstitutional
invasion of the right to privacy of married persons. Nevertheless, it recognized the zone
of privacy rightfully enjoyed by couples. Justice Douglas in Grisworld wrote that
"specific guarantees in the Bill of Rights have penumbras, formed by emanations from
those guarantees that help give them life and substance. Various guarantees create zones
of privacy."
246

At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the minor, who
will be undergoing a procedure, is already a parent or has had a miscarriage. Section 7 of
the RH law provides:
SEC. 7. Access to Family Planning. x x x.
No person shall be denied information and access to family planning services, whether
natural or artificial: Provided, That minors will not be allowed access to modern methods
of family planning without written consent from their parents or guardian/s except when
the minor is already a parent or has had a miscarriage.
There can be no other interpretation of this provision except that when a minor is already
a parent or has had a miscarriage, the parents are excluded from the decision making
process of the minor with regard to family planning. Even if she is not yet emancipated,
the parental authority is already cut off just because there is a need to tame population
growth.
It is precisely in such situations when a minor parent needs the comfort, care, advice, and
guidance of her own parents. The State cannot replace her natural mother and father
when it comes to providing her needs and comfort. To say that their consent is no longer
relevant is clearly anti-family. It does not promote unity in the family. It is an affront to
the constitutional mandate to protect and strengthen the family as an inviolable social
institution.
More alarmingly, it disregards and disobeys the constitutional mandate that "the natural
and primary right and duty of parents in the rearing of the youth for civic efficiency and
the development of moral character shall receive the support of the Government."
247
In
this regard, Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to modify the right of parents. It
imports the assertion that the right of parents is superior to that of the State.
248
[Emphases
supplied]
To insist on a rule that interferes with the right of parents to exercise parental control over
their minor-child or the right of the spouses to mutually decide on matters which very
well affect the very purpose of marriage, that is, the establishment of conjugal and family
life, would result in the violation of one's privacy with respect to his family. It would be
dismissive of the unique and strongly-held Filipino tradition of maintaining close family
ties and violative of the recognition that the State affords couples entering into the special
contract of marriage to as one unit in forming the foundation of the family and society.
The State cannot, without a compelling state interest, take over the role of parents in the
care and custody of a minor child, whether or not the latter is already a parent or has had
a miscarriage. Only a compelling state interest can justify a state substitution of their
parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in the second
paragraph of Section 7 or with respect to the consenting spouse under Section 23(a)(2)(i),
a distinction must be made. There must be a differentiation between access to information
about family planning services, on one hand, and access to the reproductive health
procedures and modern family planning methods themselves, on the other. Insofar as
access to information is concerned, the Court finds no constitutional objection to the
acquisition of information by the minor referred to under the exception in the second
paragraph of Section 7 that would enable her to take proper care of her own body and that
of her unborn child. After all, Section 12, Article II of the Constitution mandates the State
to protect both the life of the mother as that of the unborn child. Considering that
information to enable a person to make informed decisions is essential in the protection
and maintenance of ones' health, access to such information with respect to reproductive
health must be allowed. In this situation, the fear that parents might be deprived of their
parental control is unfounded because they are not prohibited to exercise parental
guidance and control over their minor child and assist her in deciding whether to accept
or reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in life-
threatening cases that require the performance of emergency procedures. In such cases,
the life of the minor who has already suffered a miscarriage and that of the spouse should
not be put at grave risk simply for lack of consent. It should be emphasized that no person
should be denied the appropriate medical care urgently needed to preserve the primordial
right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)(ii)
249
should be struck down.
By effectively limiting the requirement of parental consent to "only in elective surgical
procedures," it denies the parents their right of parental authority in cases where what is
involved are "non-surgical procedures." Save for the two exceptions discussed above, and
in the case of an abused child as provided in the first sentence of Section 23(a)(2)(ii), the
parents should not be deprived of their constitutional right of parental authority. To deny
them of this right would be an affront to the constitutional mandate to protect and
strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof, mandating
the teaching of Age-and Development-Appropriate Reproductive Health Education under
threat of fine and/or imprisonment violates the principle of academic freedom .
According to the petitioners, these provisions effectively force educational institutions to
teach reproductive health education even if they believe that the same is not suitable to be
taught to their students.
250
Citing various studies conducted in the United States and
statistical data gathered in the country, the petitioners aver that the prevalence of
contraceptives has led to an increase of out-of-wedlock births; divorce and breakdown of
families; the acceptance of abortion and euthanasia; the "feminization of poverty"; the
aging of society; and promotion of promiscuity among the youth.
251

At this point, suffice it to state that any attack on the validity of Section 14 of the RH
Law is premature because the Department of Education, Culture and Sports has yet to
formulate a curriculum on age-appropriate reproductive health education. One can only
speculate on the content, manner and medium of instruction that will be used to educate
the adolescents and whether they will contradict the religious beliefs of the petitioners
and validate their apprehensions. Thus, considering the premature nature of this particular
issue, the Court declines to rule on its constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the natural and
primary right and duty of parents in the rearing of the youth for civic efficiency and
development of moral character shall receive the support of the Government. Like the
1973 Constitution and the 1935 Constitution, the 1987 Constitution affirms the State
recognition of the invaluable role of parents in preparing the youth to become productive
members of society. Notably, it places more importance on the role of parents in the
development of their children by recognizing that said role shall be "primary," that is, that
the right of parents in upbringing the youth is superior to that of the State.
252

It is also the inherent right of the State to act as parens patriae to aid parents in the moral
development of the youth. Indeed, the Constitution makes mention of the importance of
developing the youth and their important role in nation building.
253
Considering that
Section 14 provides not only for the age-appropriate-reproductive health education, but
also for values formation; the development of knowledge and skills in self-protection
against discrimination; sexual abuse and violence against women and children and other
forms of gender based violence and teen pregnancy; physical, social and emotional
changes in adolescents; women's rights and children's rights; responsible teenage
behavior; gender and development; and responsible parenthood, and that Rule 10, Section
11.01 of the RH-IRR and Section 4(t) of the RH Law itself provides for the teaching of
responsible teenage behavior, gender sensitivity and physical and emotional changes
among adolescents - the Court finds that the legal mandate provided under the assailed
provision supplements, rather than supplants, the rights and duties of the parents in the
moral development of their children.
Furthermore, as Section 14 also mandates that the mandatory reproductive health
education program shall be developed in conjunction with parent-teacher-community
associations, school officials and other interest groups, it could very well be said that it
will be in line with the religious beliefs of the petitioners. By imposing such a condition,
it becomes apparent that the petitioners' contention that Section 14 violates Article XV,
Section 3(1) of the Constitution is without merit.
254

While the Court notes the possibility that educators might raise their objection to their
participation in the reproductive health education program provided under Section 14 of
the RH Law on the ground that the same violates their religious beliefs, the Court
reserves its judgment should an actual case be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness and, thus violates the
due process clause of the Constitution. According to them, Section 23 (a)(l) mentions a
"private health service provider" among those who may be held punishable but does not
define who is a "private health care service provider." They argue that confusion further
results since Section 7 only makes reference to a "private health care institution."
The petitioners also point out that Section 7 of the assailed legislation exempts hospitals
operated by religious groups from rendering reproductive health service and modern
family planning methods. It is unclear, however, if these institutions are also exempt from
giving reproductive health information under Section 23(a)(l), or from rendering
reproductive health procedures under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and providing
of incorrect information, but at the same time fails to define "incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess its meaning and differ
as to its application. It is repugnant to the Constitution in two respects: (1) it violates due
process for failure to accord persons, especially the parties targeted by it, fair notice of
the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out
its provisions and becomes an arbitrary flexing of the Government muscle.
255
Moreover,
in determining whether the words used in a statute are vague, words must not only be
taken in accordance with their plain meaning alone, but also in relation to other parts of
the statute. It is a rule that every part of the statute must be interpreted with reference to
the context, that is, every part of it must be construed together with the other parts and
kept subservient to the general intent of the whole enactment.
256

As correctly noted by the OSG, in determining the definition of "private health care
service provider," reference must be made to Section 4(n) of the RH Law which defines a
"public health service provider," viz:
(n) Public health care service provider refers to: (1) public health care institution, which
is duly licensed and accredited and devoted primarily to the maintenance and operation of
facilities for health promotion, disease prevention, diagnosis, treatment and care of
individuals suffering from illness, disease, injury, disability or deformity, or in need of
obstetrical or other medical and nursing care; (2) public health care professional, who is a
doctor of medicine, a nurse or a midvvife; (3) public health worker engaged in the
delivery of health care services; or (4) barangay health worker who has undergone
training programs under any accredited government and NGO and who voluntarily
renders primarily health care services in the community after having been accredited to
function as such by the local health board in accordance with the guidelines promulgated
by the Department of Health (DOH) .
Further, the use of the term "private health care institution" in Section 7 of the law,
instead of "private health care service provider," should not be a cause of confusion for
the obvious reason that they are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from being
obligated to render reproductive health service and modem family planning methods,
includes exemption from being obligated to give reproductive health information and to
render reproductive health procedures. Clearly, subject to the qualifications and
exemptions earlier discussed, the right to be exempt from being obligated to render
reproductive health service and modem family planning methods, necessarily includes
exemption from being obligated to give reproductive health information and to render
reproductive health procedures. The terms "service" and "methods" are broad enough to
include the providing of information and the rendering of medical procedures.
The same can be said with respect to the contention that the RH Law punishes health care
service providers who intentionally withhold, restrict and provide incorrect information
regarding reproductive health programs and services. For ready reference, the assailed
provision is hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
(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 of
legal, medically-safe, non-abortifacient and effective family planning methods;
From its plain meaning, the word "incorrect" here denotes failing to agree with a copy or
model or with established rules; inaccurate, faulty; failing to agree with the requirements
of duty, morality or propriety; and failing to coincide with the truth.
257
On the other
hand, the word "knowingly" means with awareness or deliberateness that is
intentional.
258
Used together in relation to Section 23(a)(l), they connote a sense of malice
and ill motive to mislead or misrepresent the public as to the nature and effect of
programs and services on reproductive health. Public health and safety demand that
health care service providers give their honest and correct medical information in
accordance with what is acceptable in medical practice. While health care service
providers are not barred from expressing their own personal opinions regarding the
programs and services on reproductive health, their right must be tempered with the need
to provide public health and safety. The public deserves no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection clause under the
Constitution as it discriminates against the poor because it makes them the primary target
of the government program that promotes contraceptive use . They argue that, rather than
promoting reproductive health among the poor, the RH Law introduces contraceptives
that would effectively reduce the number of the poor. Their bases are the various
provisions in the RH Law dealing with the poor, especially those mentioned in the
guiding principles
259
and definition of terms
260
of the law.
They add that the exclusion of private educational institutions from the mandatory
reproductive health education program imposed by the RH Law renders it
unconstitutional.
In Biraogo v. Philippine Truth Commission,
261
the Court had the occasion to expound on
the concept of equal protection. Thus:
One of the basic principles on which this government was founded is that of the equality
of right which is embodied in Section 1, Article III of the 1987 Constitution. The equal
protection of the laws is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It has been embodied in a
separate clause, however, to provide for a more specific guaranty against any form of
undue favoritism or hostility from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the particular act assailed
partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is
the equal protection clause.
"According to a long line of decisions, equal protection simply requires that all persons or
things similarly situated should be treated alike, both as to rights conferred and
responsibilities imposed." It "requires public bodies and inst itutions to treat similarly
situated individuals in a similar manner." "The purpose of the equal protection clause is
to secure every person within a state's jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statue or by its improper
execution through the state's duly constituted authorities." "In other words, the concept of
equal justice under the law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are irrelevant to a legitimate
governmental objective."
The equal protection clause is aimed at all official state actions, not just those of the
legislature. Its inhibitions cover all the departments of the government including the
political and executive departments, and extend to all actions of a state denying equal
protection of the laws, through whatever agency or whatever guise is taken.
It, however, does not require the universal application of the laws to all persons or things
without distinction. What it simply requires is equality among equals as determined
according to a valid classification. Indeed, the equal protection clause permits
classification. Such classification, however, to be valid must pass the test of
reasonableness. The test has four requisites: (1) The classification rests on substantial
distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing
conditions only; and (4) It applies equally to all members of the same class. "Superficial
differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it must include or
embrace all persons who naturally belong to the class. "The classification will be
regarded as invalid if all the members of the class are not similarly treated, both as to
rights conferred and obligations imposed. It is not necessary that the classification be
made with absolute symmetry, in the sense that the members of the class should possess
the same characteristics in equal degree. Substantial similarity will suffice; and as long as
this is achieved, all those covered by the classification are to be treated equally. The mere
fact that an individual belonging to a class differs from the other members, as long as that
class is substantially distinguishable from all others, does not justify the non-application
of the law to him."
The classification must not be based on existing circumstances only, or so constituted as
to preclude addition to the number included in the class. It must be of such a nature as to
embrace all those who may thereafter be in similar circumstances and conditions. It must
not leave out or "underinclude" those that should otherwise fall into a certain
classification. [Emphases supplied; citations excluded]
To provide that the poor are to be given priority in the government's reproductive health
care program is not a violation of the equal protection clause. In fact, it is pursuant to
Section 11, Article XIII of the Constitution which recognizes the distinct necessity to
address the needs of the underprivileged by providing that they be given priority in
addressing the health development of the people. Thus:
Section 11. The State shall adopt an integrated and comprehensive approach to health
development which shall endeavor to make essential goods, health and other social
services available to all the people at affordable cost. There shall be priority for the needs
of the underprivileged, sick, elderly, disabled, women, and children. The State shall
endeavor to provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and marginalized
couples who are suffering from fertility issues and desire to have children. There is,
therefore, no merit to the contention that the RH Law only seeks to target the poor to
reduce their number. While the RH Law admits the use of contraceptives, it does not, as
elucidated above, sanction abortion. As Section 3(1) explains, the "promotion and/or
stabilization of the population growth rate is incidental to the advancement of
reproductive health."
Moreover, the RH Law does not prescribe the number of children a couple may have and
does not impose conditions upon couples who intend to have children. While the
petitioners surmise that the assailed law seeks to charge couples with the duty to have
children only if they would raise them in a truly humane way, a deeper look into its
provisions shows that what the law seeks to do is to simply provide priority to the poor in
the implementation of government programs to promote basic reproductive health care.
With respect to the exclusion of private educational institutions from the mandatory
reproductive health education program under Section 14, suffice it to state that the mere
fact that the children of those who are less fortunate attend public educational institutions
does not amount to substantial distinction sufficient to annul the assailed provision. On
the other hand, substantial distinction rests between public educational institutions and
private educational institutions, particularly because there is a need to recognize the
academic freedom of private educational institutions especially with respect to religious
instruction and to consider their sensitivity towards the teaching of reproductive health
education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it violates the
constitutional prohibition against involuntary servitude. They posit that Section 17 of the
assailed legislation requiring private and non-government health care service providers to
render forty-eight (48) hours of pro bono reproductive health services, actually amounts
to involuntary servitude because it requires medical practitioners to perform acts against
their will.
262

The OSG counters that the rendition of pro bono services envisioned in Section 17 can
hardly be considered as forced labor analogous to slavery, as reproductive health care
service providers have the discretion as to the manner and time of giving pro bono
services. Moreover, the OSG points out that the imposition is within the powers of the
government, the accreditation of medical practitioners with PhilHealth being a privilege
and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably imbued with
public interest that it is both a power and a duty of the State to control and regulate it in
order to protect and promote the public welfare. Like the legal profession, the practice of
medicine is not a right but a privileged burdened with conditions as it directly involves
the very lives of the people. A fortiori, this power includes the power of Congress
263
to
prescribe the qualifications for the practice of professions or trades which affect the
public welfare, the public health, the public morals, and the public safety; and to regulate
or control such professions or trades, even to the point of revoking such right
altogether.
264

Moreover, as some petitioners put it, the notion of involuntary servitude connotes the
presence of force, threats, intimidation or other similar means of coercion and
compulsion.
265
A reading of the assailed provision, however, reveals that it only
encourages private and non- government reproductive healthcare service providers to
render pro bono service. Other than non-accreditation with PhilHealth, no penalty is
imposed should they choose to do otherwise. Private and non-government reproductive
healthcare service providers also enjoy the liberty to choose which kind of health service
they wish to provide, when, where and how to provide it or whether to provide it all.
Clearly, therefore, no compulsion, force or threat is made upon them to render pro bono
service against their will. While the rendering of such service was made a prerequisite to
accreditation with PhilHealth, the Court does not consider the same to be an unreasonable
burden, but rather, a necessary incentive imposed by Congress in the furtherance of a
perceived legitimate state interest.
Consistent with what the Court had earlier discussed, however, it should be emphasized
that conscientious objectors are exempt from this provision as long as their religious
beliefs and convictions do not allow them to render reproductive health service, pro bona
or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the FDA of the power to
determine whether or not a supply or product is to be included in the Essential Drugs List
(EDL).
266

The Court finds nothing wrong with the delegation. The FDA does not only have the
power but also the competency to evaluate, register and cover health services and
methods. It is the only government entity empowered to render such services and highly
proficient to do so. It should be understood that health services and methods fall under
the gamut of terms that are associated with what is ordinarily understood as "health
products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be
called the Food and Drug Administration (FDA) in the Department of Health (DOH).
Said Administration shall be under the Office of the Secretary and shall have the
following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules and
regulations issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of health
products;
"(c) To analyze and inspect health products in connection with the
implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation of health
products standards, and to recommend standards of identity, purity, safety,
efficacy, quality and fill of container;
"(e) To issue certificates of compliance with technical requirements to serve as
basis for the issuance of appropriate authorization and spot-check for
compliance with regulations regarding operation of manufacturers, importers,
exporters, distributors, wholesalers, drug outlets, and other establishments and
facilities of health products, as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health products prior to the
issuance of appropriate authorizations to ensure safety, efficacy, purity, and
quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters,
wholesalers, retailers, consumers, and non-consumer users of health products to
report to the FDA any incident that reasonably indicates that said product has
caused or contributed to the death, serious illness or serious injury to a
consumer, a patient, or any person;
"(j) To issue cease and desist orders motu propio or upon verified complaint for
health products, whether or not registered with the FDA Provided, That for
registered health products, the cease and desist order is valid for thirty (30) days
and may be extended for sixty ( 60) days only after due process has been
observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any health
product found to have caused death, serious illness or serious injury to a
consumer or patient, or is found to be imminently injurious, unsafe, dangerous,
or grossly deceptive, and to require all concerned to implement the risk
management plan which is a requirement for the issuance of the appropriate
authorization;
x x x.
As can be gleaned from the above, the functions, powers and duties of the FDA are
specific to enable the agency to carry out the mandates of the law. Being the country's
premiere and sole agency that ensures the safety of food and medicines available to the
public, the FDA was equipped with the necessary powers and functions to make it
effective. Pursuant to the principle of necessary implication, the mandate by Congress to
the FDA to ensure public health and safety by permitting only food and medicines that
are safe includes "service" and "methods." From the declared policy of the RH Law, it is
clear that Congress intended that the public be given only those medicines that are proven
medically safe, legal, non-abortifacient, and effective in accordance with scientific and
evidence-based medical research standards. The philosophy behind the permitted
delegation was explained in Echagaray v. Secretary of Justice,
267
as follows:
The reason is the increasing complexity of the task of the government and the growing
inability of the legislature to cope directly with the many problems demanding its
attention. The growth of society has ramified its activities and created peculiar and
sophisticated problems that the legislature cannot be expected reasonably to comprehend.
Specialization even in legislation has become necessary. To many of the problems
attendant upon present day undertakings, the legislature may not have the competence, let
alone the interest and the time, to provide the required direct and efficacious, not to say
specific solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that the RH Law
infringes upon the powers devolved to local government units (LGUs) under Section 17
of the Local Government Code. Said Section 17 vested upon the LGUs the duties and
functions pertaining to the delivery of basic services and facilities, as follows:
SECTION 17. Basic Services and Facilities.
(a) Local government units shall endeavor to be self-reliant and shall continue
exercising the powers and discharging the duties and functions currently vested
upon them. They shall also discharge the functions and responsibilities of
national agencies and offices devolved to them pursuant to this Code. Local
government units shall likewise exercise such other powers and discharge such
other functions and responsibilities as are necessary, appropriate, or incidental to
efficient and effective provision of the basic services and facilities enumerated
herein.
(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the functions
and responsibilities that have already been devolved upon them from the
national agencies on the aspect of providing for basic services and facilities in
their respective jurisdictions, paragraph (c) of the same provision provides a
categorical exception of cases involving nationally-funded projects, facilities,
programs and services.
268
Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and
infrastructure projects and other facilities, programs and services funded by the
National Government under the annual General Appropriations Act, other
special laws, pertinent executive orders, and those wholly or partially funded
from foreign sources, are not covered under this Section, except in those cases
where the local government unit concerned is duly designated as the
implementing agency for such projects, facilities, programs and services.
[Emphases supplied]
The essence of this express reservation of power by the national government is that,
unless an LGU is particularly designated as the implementing agency, it has no power
over a program for which funding has been provided by the national government under
the annual general appropriations act, even if the program involves the delivery of basic
services within the jurisdiction of the LGU.
269
A complete relinquishment of central
government powers on the matter of providing basic facilities and services cannot be
implied as the Local Government Code itself weighs against it.
270

In this case, a reading of the RH Law clearly shows that whether it pertains to the
establishment of health care facilities,
271
the hiring of skilled health professionals,
272
or
the training of barangay health workers,
273
it will be the national government that will
provide for the funding of its implementation. Local autonomy is not absolute. The
national government still has the say when it comes to national priority programs which
the local government is called upon to implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to
provide these services. There is nothing in the wording of the law which can be construed
as making the availability of these services mandatory for the LGUs. For said reason, it
cannot be said that the RH Law amounts to an undue encroachment by the national
government upon the autonomy enjoyed by the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local governments can be
equally applied to the ARMM. The RH Law does not infringe upon its autonomy.
Moreover, Article III, Sections 6, 10 and 11 of R.A. No. 9054, or the organic act of the
ARMM, alluded to by petitioner Tillah to justify the exemption of the operation of the
RH Law in the autonomous region, refer to the policy statements for the guidance of the
regional government. These provisions relied upon by the petitioners simply delineate the
powers that may be exercised by the regional government, which can, in no manner, be
characterized as an abdication by the State of its power to enact legislation that would
benefit the general welfare. After all, despite the veritable autonomy granted the ARMM,
the Constitution and the supporting jurisprudence, as they now stand, reject the notion of
imperium et imperio in the relationship between the national and the regional
governments.
274
Except for the express and implied limitations imposed on it by the
Constitution, Congress cannot be restricted to exercise its inherent and plenary power to
legislate on all subjects which extends to all matters of general concern or common
interest.
275

11 - Natural Law
With respect to the argument that the RH Law violates natural law,
276
suffice it to say that
the Court does not duly recognize it as a legal basis for upholding or invalidating a law.
Our only guidepost is the Constitution. While every law enacted by man emanated from
what is perceived as natural law, the Court is not obliged to see if a statute, executive
issuance or ordinance is in conformity to it. To begin with, it is not enacted by an
acceptable legitimate body. Moreover, natural laws are mere thoughts and notions on
inherent rights espoused by theorists, philosophers and theologists. The jurists of the
philosophical school are interested in the law as an abstraction, rather than in the actual
law of the past or present.
277
Unless, a natural right has been transformed into a written
law, it cannot serve as a basis to strike down a law. In Republic v. Sandiganbayan,
278
the
very case cited by the petitioners, it was explained that the Court is not duty-bound to
examine every law or action and whether it conforms with both the Constitution and
natural law. Rather, natural law is to be used sparingly only in the most peculiar of
circumstances involving rights inherent to man where no law is applicable.
279

At any rate, as earlier expounded, the RH Law does not sanction the taking away of life.
It does not allow abortion in any shape or form. It only seeks to enhance the population
control program of the government by providing information and making non-
abortifacient contraceptives more readily available to the public, especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to
provide access to medically-safe, non-abortifacient, effective, legal, affordable, and
quality reproductive healthcare services, methods, devices, and supplies. As earlier
pointed out, however, the religious freedom of some sectors of society cannot be
trampled upon in pursuit of what the law hopes to achieve. After all, the Constitutional
safeguard to religious freedom is a recognition that man stands accountable to an
authority higher than the State.
In conformity with the principle of separation of Church and State, one religious group
cannot be allowed to impose its beliefs on the rest of the society. Philippine modem
society leaves enough room for diversity and pluralism. As such, everyone should be
tolerant and open-minded so that peace and harmony may continue to reign as we exist
alongside each other.
As healthful as the intention of the RH Law may be, the idea does not escape the Court
that what it seeks to address is the problem of rising poverty and unemployment in the
country. Let it be said that the cause of these perennial issues is not the large population
but the unequal distribution of wealth. Even if population growth is controlled, poverty
will remain as long as the country's wealth remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the long run. The
European and Asian countries, which embarked on such a program generations ago , are
now burdened with ageing populations. The number of their young workers is dwindling
with adverse effects on their economy. These young workers represent a significant
human capital which could have helped them invigorate, innovate and fuel their
economy. These countries are now trying to reverse their programs, but they are still
struggling. For one, Singapore, even with incentives, is failing.
And in this country, the economy is being propped up by remittances from our Overseas
Filipino Workers. This is because we have an ample supply of young able-bodied
workers. What would happen if the country would be weighed down by an ageing
population and the fewer younger generation would not be able to support them? This
would be the situation when our total fertility rate would go down below the replacement
level of two (2) children per woman.
280

Indeed, at the present, the country has a population problem, but the State should not use
coercive measures (like the penal provisions of the RH Law against conscientious
objectors) to solve it. Nonetheless, the policy of the Court is non-interference in the
wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to
say what the law is as enacted by the lawmaking body. That is not the same as saying
what the law should be or what is the correct rule in a given set of circumstances. It is not
the province of the judiciary to look into the wisdom of the law nor to question the
policies adopted by the legislative branch. Nor is it the business of this Tribunal to
remedy every unjust situation that may arise from the application of a particular law. It is
for the legislature to enact remedial legislation if that would be necessary in the premises.
But as always, with apt judicial caution and cold neutrality, the Court must carry out the
delicate function of interpreting the law, guided by the Constitution and existing
legislation and mindful of settled jurisprudence. The Court's function is therefore limited,
and accordingly, must confine itself to the judicial task of saying what the law is, as
enacted by the lawmaking body.
281

Be that as it may, it bears reiterating that the RH Law is a mere compilation and
enhancement of the prior existing contraceptive and reproductive health laws, but with
coercive measures. Even if the Court decrees the RH Law as entirely unconstitutional,
there will still be the Population Act (R.A. No. 6365), the Contraceptive Act (R.A. No.
4729) and the reproductive health for women or The Magna Carta of Women (R.A. No.
9710), sans the coercive provisions of the assailed legislation. All the same, the principle
of "no-abortion" and "non-coercion" in the adoption of any family planning method
should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court
declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except with respect to the
following provisions which are declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a)
require private health facilities and non-maternity specialty hospitals and
hospitals owned and operated by a religious group to refer patients, not in an
emergency or life-threatening case, as defined under Republic Act No. 8344, to
another health facility which is conveniently accessible; and b) allow minor-
parents or minors who have suffered a miscarriage access to modem methods of
family planning without written consent from their parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly
Section 5 .24 thereof, insofar as they punish any healthcare service provider who
fails and or refuses to disseminate information regarding programs and services
on reproductive health regardless of his or her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as
they allow a married individual, not in an emergency or life-threatening case, as
defined under Republic Act No. 8344, to undergo reproductive health
procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as
they limit the requirement of parental consent only to elective surgical
procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly
Section 5.24 thereof, insofar as they punish any healthcare service provider who
fails and/or refuses to refer a patient not in an emergency or life-threatening
case, as defined under Republic Act No. 8344, to another health care service
provider within the same facility or one which is conveniently accessible
regardless of his or her religious beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly
Section 5 .24 thereof, insofar as they punish any public officer who refuses to
support reproductive health programs or shall do any act that hinders the full
implementation of a reproductive health program, regardless of his or her
religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the
rendering of pro bona reproductive health service in so far as they affect the
conscientious objector in securing PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier
"primarily" in defining abortifacients and contraceptives, as they are ultra vires
and, therefore, null and void for contravening Section 4(a) of the RH Law and
violating Section 12, Article II of the Constitution.
The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its
Order, dated July 16, 2013 , is hereby LIFTED, insofar as the provisions of R.A. No.
10354 which have been herein declared as constitutional.