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Dissecting the Reproductive Health
LawPolicy Process
Albert Francis E. Domingo, MD, MSc26 January 2016 | Ateneo de Manila University
Dissecting the RH Law Policy Process: Outline
1. Review of the power play involved using the ‘health policy triangle’
2. Overcoming the legislation threshold
3. Values enshrined in law vs scientific evidence
1.Content, Context,Process and Actors
Review of the power play involved using the ‘health policy triangle’
Context
Actors
Content ProcessWalt and Gilson (1994), as cited in Buse et al. (2012)
Context
Actors
Content Process
Context
Actors
Content Process
1993 NDS 1998 NDHS 2006 FPS 2011 FHS0
50
100
150
200
250
300
Num
ber o
f mat
erna
l de
aths
pe
r 100
,000
live
birt
hs
Context
Actors
Content Process
Context
Actors
Content Process
Context
Actors
Content Processhttp://jsi.ge/eng/facts/birthcontrol.php
Context
Actors
Content Process
Context
Actors
Content Processhttp://www.gov.ph
Context
Actors
Content ProcessWalt and Gilson (1994), as cited in Buse et al. (2012)
Context
Actors
Content Process
Philippine Star/Boy Santos
“With the rise of the Hebrew state,
a new term had to be coined to describethe relation of the Hebrew state with the Mosaic religion: theocracy.
The authority and power of the state was ascribed to God.
The Mosaic creed was not merely regardedas the religion of the state,
it was (at least until Saul) the state itself…As man of God, Moses decided
when the people should travel and when to pitch camp,when they should make war and when peace...
religious motivation was primary and all-embracing:
sacrifices were made and Israel was prohibited from exacting usury, mistreating aliens or using false weights,
all because God commanded these. Estrada v. Escritor, A.M. No. P-02-1651 (2003)
“There was a union of church and stateand Catholicism was the state religion
under the Spanish Constitution of 1876. Civil authorities exercised religious functions
and the friars exercised civil powers...
The coming of the Americans to our country, however,changed this state-church scheme for with the advent of this
regime,the unique American experimentof separation of church and state
was transported to Philippine soil.Estrada v. Escritor, A.M. No. P-02-1651 (2003)
“
The Catholic Church hierarchy has maintainedits traditional stance against modern family planning (FP)
methods, particularly modern (also referred to as “artificial”) contraceptives…
Caught between a hard Church and a soft Stateare the overwhelming majority of Filipinos…
Pernia et al. (2008)
http://holesinthefoam.us/state-vs-church/
2.Dura lex, sed lex
Overcoming the legislation threshold
Factors in Health Policy Change
OLD POLICY
NEW POLICY
Ideologicalinspirations
Change in circumstances
Evidence
Common sense
From research
From experience
Reference: Gray, 2004 (Fig 7.8, p. 291; p. 292)
NOTE: Policy makers operate on a timescale that does not generally admit of delays that research will take.
The Legislation Threshold
LEGISLATION THRESHOLDOpp
ositi
on to
legi
slat
ion
Reference: Gray, 2004 (Fig 7.9, p. 296)
There is an inverse relationship between the magnitude of a health problem and the strength of opposition to legislation framed to prevent it.
Number of people affected
Media interestStrong evidence
Opposition by “industry”Policy has adverse effectsHigh cost of intervention
Values (?) Dominate Policy-making
▣ Politics tends to be driven by beliefs patronage
▣ It is the values returns on investment (ROI) politicians believe to be important that dominate decision-making about policy. Such decisions will be tempered by the availability of resources.
▣ But, resource allocation can also be based on beliefs and values patronage and ROI
▣ Can a shortage of resources force policy-makers to consider the evidence and alter policy as a result?
Reference: Gray, 2004 (p. 287)
3.Not Unconstitutional, but...
Values enshrined in law vs. scientific evidence
“...the issue before this honorable court
is not when life begins…The Constitution, in Article II, Section 12
textually commands the Stateto protect the life of the unborn from conception– but it does not define the term “conception”.
While delegates to the 1986 Constitutional Commissiondisagreed as to its meaning, they agreed that Article II, Section 12 was intended
to constitutionally bar any congress or any courtfrom ever adopting in this jurisdiction
the decision of the United States Supreme Courtin the case of Roe v. Wade.
Solicitor General Francis H. Jardeleza,at the Oral Arguments on Imbong v. Ochoa
“...when life begins is not the issue…
twenty-six years after the advent of Article II,Section 12 – and that is a quarter of a century of advances
in science and medicine, Congress passed the RH Law.
Even then, the Congress, just like the Constitutional Commission, was divided on the question of when life
begins. Congress chose not to answer the
question. Solicitor General Francis H. Jardeleza,
at the Oral Arguments on Imbong v. Ochoa
“The constitutional question at hand is:
whether or not the Congress,in the exercise of its police power,
enact[ed] the RH Law –a social legislation that provides womenwith universal access to effective, legal,
non-abortifacient contraceptive drugs and devices, and to services and information thereon.
Solicitor General Francis H. Jardeleza,at the Oral Arguments on Imbong v. Ochoa
“Majority of the Members of the Court
are of the position thatthe question of [when] life beginsis a scientific and medical issue
that should not be decided, at this stage,
without proper hearing and evidence…
From the Decision in Imbong v. Ochoa
The RH Law is Not Unconstitutional, but…
1. The requirement to refer patients seeking MFP methods is restricted
2. Parental consent is needed for minors to access MFP methods
3. Health care providers not disseminating information on RH cannot be punished
4. The consent of the spouse is required for married individuals to undergo RH procedures
5. Health care providers not referring non-emergent patients for RH services or information cannot be punished
6. Any public officer hindering full RH implementation or not supporting RH cannot be punished
7. Any conscientious objector cannot be required to render pro-bono service to be accredited by PhilHealth
8. An abortifacient is any drug or device that can destroy a fetus or prevent the implantation of a fertilized ovum
9. Health service providers who will require parental consent from minors not in emergencies or serious situations cannot be punished
Thanks!
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Credits
Special thanks to all the people who made and released these awesome resources for free:▣ Presentation template by SlidesCarnival▣ Justice icons by Arthur Shlain▣ Photographs by Unsplash