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Aside from politics, nothing has polarized nations more than the issues of population growth control, abortion, and contraception and their perceived consequences.

Abortion again became viral in social media with the recent overturning by the US Supreme Court of the doctrine enunciated in the 1973 landmark case of Roe v. Wade ( 410 U.S. 113).

I first encountered Roe vs Wade in my constitutional and criminal law classes at the UP College of Law in the early 1990s.

The U.S. Supreme Court ruled in Roe v. Wade that the US constitution generally protects a pregnant woman’s liberty to choose to have an abortion.

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The case noted that the Due Process Clause of the Fourteenth Amendment protects against state action the right to privacy, and a woman’s right to choose to have an abortion falls within that right to privacy. A state law that broadly prohibits abortion without respect to the stage of pregnancy or other interests violates that right.

The case discussed abortion rights in three periods of pregnancy.

In the first trimester, the state may not regulate the abortion decision; only the pregnant woman and her attending physician can make that decision.

In the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health.

In the third trimester, once the fetus reaches the point of “viability,” a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.

However, the US Supreme Court recently overturned the Roe doctrine in the case of Dobbs v. Jackson Women’s Health Organization.

It was a legal challenge to Mississippi’s 2018 Gestational Age Act, which had banned abortions after 15 weeks with exceptions only for medical emergencies or fetal abnormalities.

In upholding the Mississippi law, the Court has effectively ended the constitutional right to an abortion for American women.

The Court stated that Roe has “enflamed debate and deepened division” and that overruling it would “return the issue of abortion to the people’s elected representatives.”

The majority opinion relied on a constitutional historical view of abortion rights, saying, ” abortion couldn’t be constitutionally protected. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”

In the Philippines , the Supreme Court ruled in the 1961 case of Geluz vs. Court of Appeals, (G.R. No. L-16439, July 20, 1961) that abortion, without medical necessity to warrant it, is a criminal act, and neither the consent of the woman nor that of the husband would excuse it.

The husband of a woman who voluntarily procured her abortion was not entitled to damages from the physician who performed the procedure since the fetus was not yet born and thus did not have civil personality under Article 40 of the Civil Code.

A child should be born before the parents can recover damages, since personal injury or death pertains primarily to the one injured.

Abortion also became a major issue with the passage of the Responsible Parenthood and Reproductive Health Act of 2012/R.A. No. 10354 (RH Law) that was enacted on December 21, 2012.

Cases were filed before the Supreme Court wherein challengers argued, among others, that the RH Law violates the right to life of the unborn since it would authorize the purchase of hormonal contraceptives, intra-uterine devices, and injectables, which are abortive.

In the consolidated case of Imbong v. Ochoa et al (G.R. Nos. 204819, Apr. 8, 2014), the Supreme Court ruled that the RH Law actually proscribes abortion, that it recognizes that the fertilized ovum already has life and that the State has a bounden duty to protect it.

The court said 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 the beginning of life. It started earlier.

It found that the RH Law itself clearly mandates that protection be afforded from the moment of fertilization. It is replete with provisions to protect the fertilized ovum and that it should be afforded safe travel to the uterus for implantation.

The RH Law also recognizes that abortion is a crime under Article 256 of the Revised Penal Code, which penalizes the destruction or expulsion of the fertilized ovum.

The Court said that the RH Law prohibits (a) any drug or device that induces abortion (that which induces the killing or the destruction of the fertilized ovum) and (b) any drug or device that allows the fertilized ovum to reach and be implanted in the mother’s womb.

As in every democratic society, we might expect more discussion on these diametrically opposed views.

(Peyups is the moniker of University of the Philippines. Atty. Dennis R. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. For comments, e-mail info@sapalovelez.com, or call 0917-5025808 or 0908-8665786.)

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