Words by Oliver X.A. Reyes

National Federation of Independent Business v. Sebelius, the United States Supreme Court decision that narrowly affirmed the substance of Obamacare (more formally, the Patient Protection and Affordable Care Act), will be of minimal effect to the Philippine legal community. The frequent impact of American jurisprudence on Philippine jurisprudence is not often discussed, yet it happens because we share with the United States many common legal principles or legal provisions (much of the Bill of Rights for example). The health care ruling of the US Supreme Court hinges on a precept that is alien to our own law – federalism. Before the United States had its constitution, there existed a motley crew of disunited states that had to be seduced into forming a single country. Federalism – the notion that each state could enact their own set of laws setting them in their own idiosyncratic ways[1] – was among the carrots dangled in front of what was then only a nascent stick. The types of laws the national Congress could enact were limited to those enumerated in Section 8, Article 1 of the United States Constitution. Among them are laws that “regulate Commerce…among the several States…” – the so-called Commerce Clause. The precise meaning of the Commerce Clause has been vigorously parsed, expanded and limited over the course of 213 years, but of little relevance to the Philippines. Trust me when I say that the arguments against constitutionality of Obama’s health care law depended on the convenient interpretation of the Commerce Clause.[2]

The possible impact of the health care ruling on us in the Philippines would be to impress upon the public that yes, it is a good idea for government to pass laws that help people live longer, especially those of less means. The idea that government should exert efforts to help the underprivileged seems like a no-brainer to one sitting in a high-school classroom, but perhaps less exalted to one examining a ledger and calculating the lost income from taxes exacted by Government to help God knows who. The emotional heart of the liberal/conservative divide may dwell on the right of the government to impose on its people a brand of morality; its more ambiguous facet lies in whether government should use the public money to enact social reform. There has been a distinct Catholic tradition, steeped also in our own political class, of social conservatism tinged with economic liberalism. Pope John Paul II, for one, was among the more prominent critics of unfettered capitalism.

The RH Bill, animus of oratiae imperata, is emblematic of both social and economic liberalism. At its heart is the allocation of taxpayer money to provide public access to reproductive health devices such as condoms and IUDs. Unlike Obamacare, there is no specifically-enacted tax or penalty to fund RH activities. Yet the intended expenditure of public funds would give a taxpayer the standing to file a legal challenge to a future RH Law. The arguments will certainly be cruder than that employed against the American health care law, oriented as they will be on the premise that a sperm or an unfertilized egg are special enough that they are protected against interference by the 1987 Philippine Constitution.

The 1987 Philippine Constitution does have a unique provision that has proven revolutionary in quick unsustained bursts. Section 15, Article II plainly states that “[t]he  State shall protect and promote the right to health of the people…” To a layperson, the provision appears vital, but the legal community had more or less ignored its import until in 1993, the Supreme Court held in a landmark case[3] that the provision embodied “a fundamental right” that, among others, empowered a minor to file a case in court seeking a court order imposing a total nationwide logging ban.   Unfortunately, there has since then been little elaboration by our Supreme Court on what exactly this “fundamental right” actually entails, or how it can be put into operation. It could, if one were charitable, be expansively read as requiring the Philippine Government to implement universal health care for all Filipinos, from duyan to kabaong. A pleasant thought, but one disengaged from fiscal reality. Still, perhaps the “right to health”, at the very least, could mean that the Government cannot impose any laws or measures that prevent people from living a healthy life. Prohibitions on tobacco subsidies, the removal of penalties on physicians who undertake abortions necessary to save a woman’s life, the right to import pharmaceutical drugs purchased from abroad at a lower cost – the possibilities are endless. A seeming left-wing pipe-dream, a looming right-wing nightmare.