November 24, 2016

RH Law and Garin’s Implanon: Did DoH waste ₱200 million?

I am categorically pro-RH, but I think it’s time to re-evaluate government policy because the only way to move forward is to actually move forward.

Ha? Ano raw? I’ll explain.

It’s time to understand the current situation and see what we can do to fix it.

(FEATURE IMAGE: A woman holding the controversial contraceptive Implanon. Image courtesy of the Valenzuela City Government.)

Let’s face it: a 30,000-peso monthly paycheck is barely enough for a family of five. Now, imagine if the breadwinner earns a half of that and the family is twice as big? Sadly, that’s the case of many Filipinos today because of limited access to birth control products, and the RH Law was enacted for this purpose.

If there’s one thing that I can give the Aquino Administration some credit for, it would be the passage of the Reproductive Health (RH) Law, more formally known as the Responsible Parenthood and Reproductive Health Act of 2012 [RA 10354].

The problem, however, is that as of today, it’s still nowhere near implementation because of legal roadblocks.

What the Supreme Court did

On 13 March 2013, the SC prohibited the RH Law’s implementation pending the judicial review. It was extended until the SC decided parts of it were unconstitutional. These parts were struck down [GMA].

And just when I thought it has been ironed out after that, another challenge popped up in June 2014, when a civil society organization challenged the constitutionality of the Department of Health’s decision to distribute contraceptive implants that can prevent pregnancies for up to three years. The SC TRO-ed the RH Law again [GMA].

The battle still rages two years later, well into the Duterte Presidency.

The contraceptives-in-question are Implanon and Implanon NXT, which we will collectively call “Implanon” because they’re essentially the same thing.

I'll describe the current situation then explain what we can do to fix it.

The Supreme Court issued a Temporary Restraining Order (TRO) that prevents [SC 2nd Div]:
  1. DoH from issuing new registrations and recertifications of all RH products.
  2. DoH from having anything to do with Implanon.

Note that the TRO I used as reference [SC 2nd Div] was issued on June 2015, but it’s basically the same TRO that’s being rehashed from 2014 to present.

Oo, two years and at least four million new Filipinos later, pinag-aawayan pa rin.

What can we do?

Judging from the TRO’s contents, there are two core issues:
  1. The constitutionality of all RH products
  2. The constitutionality of Implanon
Obviously, the key to overcoming this hurdle is showing that the two are constitutional.
THE FIRST ISSUE, the constitutionality of all RH products, is relatively easy to argue. That is, the Philippine SC has cited Griswold vs Connecticut [PBS] in a few decisions, including Gamboa vs PNP, and Ople vs CoA. This suggest that they generally agree to it. Griswold vs Connecticut.

Griswold vs Connecticut is a United States SC decision which says that despite the presumed unconstitutionality of contraceptives, a couple’s right to marital privacy is more important so the government cannot deny them access to contraceptives.

Basically, Griswold vs Connecticut explains our right “na hindi pakialaman ng gobyerno.”

This leaves us with the second issue: the constitutionality of Implanon.

What is Implanon?

Late into Aquino’s term, Health Sec. Janet Garin announced that her department will procure hundreds of thousands – if not millions – of Implanon for distribution throughout the country.

A single Implanon shot, good for three years, is worth ~$800 [Drugs] or ~₱40,000 [Goog]. Garin got it for just ₱500 apiece, thanks to a subsidy from the Gates Foundation [ABS].

Garin has procured 400,000 units so far, worth ₱200-m. However, due to the June 2014 SC prohibition that’s active up to this day, these contraceptives are basically rotting in Department of Health (DoH) warehouses. If the TRO is not lifted before 2018, ₱200-m of taxpayers’ money will just go to dust [ABS].

Medyo malabo kasi nga talaga ‘yung Implanon. Tara’t ipapaliwanag ko mga friendships.

Implanon is a contraceptive, i.e. an RH product, so if we can win on the first issue using Griswold vs Connecticut, then that would also apply to Implanon, right?
Not exactly. [Article II Section 12 of the 1987 Constitution] specifically says:
”The State… shall… protect… the life of the unborn from conception.”
The keyword here is “CONCEPTION”, i.e. the beginning of life.

The problem? RH opponents argue that Implanon is an abortifacient, or an abortion-inducing product.

What exactly is Implanon?

Implanon is a matchstick-shaped device that contains a pregnancy-preventing hormone. It is implanted beneath the skin of the upper arm, and it successfully prevents pregnancies for around three years [UWisc]. It is an extremely effective birth control method, arguably safer and more effective than natural (e.g. rhythm, calendar) or mechanical (condoms, IUDs) methods.

Upon subdermal insertion, Implanon has three effects on a woman’s body:
  1. Drastically decreases likelihood of ovulation, i.e. virtually no egg cells made
  2. Thickens cervical mucus, i.e. makes sperm less likely to reach egg
  3. Changes the uterine lining. i.e. makes it harder for a fertilized egg to attach to the uterus
And here’s where the constitution gets in the way. Do you still remember the keyword I mentioned before?
Conception, or the beginning of life.
Egg cells and sperms cells, on their own, are not human beings per se because otherwise, that’d mean any man who has masturbated at least once in his life would be liable for genocide, and any woman who has menstruated would be liable for murder.

That’s just crazy. 

Hence, the first two effects are non-issues, as they happen BEFORE conception, or BEFORE the beginning of life.

The problem is with the third.

Implanon, the Embryo, and “Technical Abortion”

The legal issue is in Implanon’s third effect:
Implanon changes the uterine lining. i.e. makes it harder for a fertilized egg to attach to the uterus.

In the off chance that a woman still manages to ovulate despite Implanon, plus the off chance that a sperm reaches it, the embryo will find it difficult to attach to the uterus because Implanon makes the uterus “slippery”.

And where does the embryo go to? Straight out of the vagina, and that’s abortion. Technically, at least.You see, after fertilization happens, the “thing” starts cell division by Day 2[UNSW], while moving from the fallopian tube to the uterus. Implantation of the embryo onto the uterus starts on Day 6 at the earliest and lasts for 12 days [EHD].

That is, a human being has been “conceived” by Day 2, and it will not survive past the first three weeks because Implanon makes the uterus too slippery for implantation to happen.

And that’s why Implanon is likely to be declared unconstitutional, because it technically kills the embryo.

Yes, I have reason to believe that the DoH’s ₱200-million Implanon stockpile may never get out of the warehouses.

But there’s a way to move forward.

Let’s compromise

Let’s go back to the TRO that’s active up to this day. Pro-RH camps have called for its lifting just this month, but to no avail [Star].

I believe that the TRO in effect is too far-reaching. Instead of just banning Implanon, it basically banned everything in the market.

Parang may isang noisy lang sa klase tapos lahat ng estudyante, pinalo.

And this is where I think there’s an opportunity.

I believe that Implanon is the core issue that prevents SC from lifting the TRO. However, as I have explained, all other non-abortifacient RH products (e.g. personal lubricants, sex toys, whatever), can be declared constitutional per Griswold vs Connecticut.

In short, pro-RH camps can request the Supreme Court not to lift the TRO, but to AMEND it.

Implanon lang naman ang problema e, so Implanon na lang ang ibawal, wag lahat.

This way, we can move forward with the RH Law’s implementation sans Implanon, then let government lawyers fight their way to show Implanon is OK.

The Implanon legal battle will take a while to settle, but we can at least move forward with everything else.

Garin may have good intentions, but even the best intentions are not enough without foresight.

Yes, Garin will be in hot water because it will appear that the government would tacitly admit Implanon’s unconstitutionality, but it’s in the public’s best interest to gain greater access to RH products as soon as possible.

Fine, stop Implanon, but don’t stop everything else. That’s what I am saying. [ThinkingPinoy]

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