THE SANCTITY OF FAMILY AND LIFE:

NATURAL LAW THINKING IN THE CONSTITUTION

By V. Dennis M. Socrates*

Every age in the history of civilization may be roughly characterized by the

peculiar ideological conflict which divided peoples in its time. The last century, for
instance, may be defined by the tension between the liberal-capitalist orientation of the
West and the totalitarian-socialist orientation of the East. In these first years of the 21st
century, the emerging divide is the issue of, for want of better terminology, Life versus
Choice. This controversy may have first reached global proportions (the issues were
joined, so to speak, globally) in the almost simultaneous publication in 1968 of Pope Paul
VI’s Encyclical Letter Humanae Vitae, on one side, and Paul Ehrlich’s The Population
Bomb, on the other; but the divisive effects of the conflict have since increased in scope
and intensity to be potentially defining of the next several decades.

The debate would seem to revolve around the degree of protection to be accorded
human life, and to some extent it is so: On one hand, pro-life thinking holds that the right
to life demands respect and protection from pre-conception (marriage and the conjugal
act), through birth and education (family life), to its terminal stages (the aged and the
dying). On the other hand, the pro-choice position argues that human life—and
corrolarily, the concepts of marriage and the family—may be the object of certain choices
of the individual, and so assert the licitness of divorce, contraception, abortion, and so on.
In truth, however, the issue is not so much the degree but the direction or end of such
respect and protection: Respect or protection for what and for whom?

This emerging divide is certainly one that impinges on the legal system; and the
purpose of this discussion is to highlight the natural law considerations underlying the
family-and-life provisions of the 1987 Constitution and their impact on the “pro-life vs.
pro-choice” debate.

*
Professorial lecturer, Palawan State University; LlB, University of the Philippines (1986).
 2

While the 1987 Constitution devotes an entire Article on the Family (XIV),
Section 12 of Article II (State Policies) practically contains the substance of all that the
Constitution has to say on the issue:
“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.”

Reading this provision, one is at once struck by the term, “sanctity”, which means
“holiness” or being in union with God. The word describes something as belonging or
pertaining to the Divine1. Thus, Section 12, Article II of the 1987 Constitution, makes a
straightforward acknowledgment of the family as something directly related to the
Creator. Indeed, one of the members of the Constitutional Commission, Father Joaquin
Bernas, S.J., notes that this provision “clearly reflects a Catholic approach to the
problem,” at least in so far as “advocacy of the provision was borne principally by Bishop
Bacani and Commissioner Bernardo Villegas, a stalwart Catholic layman.”2 Since, on the
other hand, an appeal to church would be complicated by the same Constitution’s
declared neutrality on “religious profession and worship”3, some effort must be made to
understand the provision from a more secular standpoint.

Is it possible to discuss “sanctity” from a purely rational, legal perspective?

Sanctity definitely evokes something supernatural or transcendental, i.e., beyond human
nature and earthly realities, and must eventually reach into the realm of religious faith.
On the other hand, reasonable men of diverse cultures4 nonetheless agree on the existence
and providence of the Divine. The answer, therefore, is yes. It is possible to discuss
1
Sec. 2, Art. V, also uses “sanctity” to describe “the ballot”, in the sense of vox populi, vox Dei.
2

Bernas, The 1987 Constitution, p. 78.

3
Sec. 5, Art. III.
4

At the core of “culture” is “cult” or religion. The idea of culture as opening man to God may be
seen as a leitmotif of the teaching of Pope John Paul II. See George Weigel, Witness to Hope (New York:
Harper-Collins, 1999).
 3

sanctity to some extent from a natural, human point of view, as in natural-law thinking;
and it is, in fact, an object of this discussion to point out that, outside of religious faith,
Section 12, Article II, can only make sense from a natural-law approach.

NATURAL LAW CONSIDERATIONS

Any philosophy of the legal system must, as a matter of course, define “law”
according to its “ultimate causes”. To the school of Legal Positivism, law is simply “the
command of the sovereign”; to the Historical school of jurisprudence, law is to be “found
(not made)” in historical tradition; to the Sociological school, it is simply the “balancing
of social interests” or “social engineering”; and to the so-called “Realist” view of Justice
Oliver Wendell Holmes, Jr., it is “what judges in fact do”. Natural-law thinking
understands law, in the well-known definition of St. Thomas Aquinas, as “an ordinance
of reason for the common good promulgated by one who is charged with the
community”5.

While St. Thomas Aquinas is perhaps better known as a catholic theologian, it

cannot be gainsaid that his work as a philosopher presents a corpus of doctrine which
men may adhere to without necessarily embracing the Catholic faith; that is, since it is a
body of teaching based on reason.

Natural law thinking in jurisprudence teaches the existence of a set norms (the
natural moral law) higher than the norms of the legal system (human positive law) and to
which these latter must conform. Thus, the legal system is a participation (by society
through its political authority) in the natural moral law. The norms of the natural moral
law derive from the truths of human nature and are discernible, albeit with difficulty, by
human reason.

Human life

5
S. Th. I-II, q. 90, a. 4, c.
 4

Among these truths are that man is essentially a spiritual soul (the “form” or
“formal cause”, which gives man the “act” of being man) in a material body (the “matter”
or “material cause, which gives man the “potency” or capacity to become man); that man
comes into existence by direct act of the Creator with the cooperation of the parents—
procreation—in the “marital act” and the rearing and education of offspring (the
“efficient cause”); and that human existence is ordained towards the “end” of eternal
happiness—union with God or sanctity—by knowing, loving and serving his Creator (the
“final cause”).

Human life is holy because it directly belongs to God from beginning to end, and
the “sanctity” of the family lies in its intimate relation to human life.

It stands to reason, indeed, that man has a spiritual (non-material) dimension since
man is capable of transcending or going beyond material reality, principally through his
intellect (which is ordained to understanding the truth) and free will (ordained to
choosing or loving the good).

As a being with a spiritual dimension, which could not spring from mere matter
(even by evolution), human existence must come about by direct exercise of the power to
create from nothing (God’s), along with the marital act of the parents and their efforts at
rearing and educating the child.; hence, the efficient cause of human existence is the
power of God with the cooperation of the parents.

It is also this spiritual dimension which indicates that man has an eternal destiny:
Only “matter” tends towards destruction; what is “spirit” is indestructible since it is not
composed of “parts” that can disintegrate. This eternal destiny finds its fulfillment in
possessing or being in union with the fullness of Truth and Goodness, the fullness of
Being—God.
 5

Indeed, the human drives towards understanding the truth (intellect) and choosing
or loving the good (freedom) are not satisfiable by anything less than this union with
God.6 Thus, the ultimate purpose of human existence is to know God (with the
intelligence), to love God (with our human freedom) and to serve God (with all our
being). It follows, also that man must intelligently and freely reach his end; i.e., man
must “want to”, primarily through his spiritual faculties (intellect and will) but also with
his entire being, including his material dimension which is so intimately united with his
spiritual that their separation is a wrenching, agonizing process (death). It must be
emphasized, however, that human operations are directed by the spiritual faculties which
lead man towards his ultimate end.

The causes of society7

Since the legal system is a human, social institution, it also behooves us to

consider the natural-law view of society; that is, as the “union of wills” (formal cause) of
“individuals through families” (material cause) brought about by “love” (efficient cause)
and ordained towards the “common good” (final cause).

It is significant that the family, rather than the individual, should be considered
the “immediate” matter of society. The individual stands as the “remote” or mediated
material cause (mediated by the family) since the family is an entity simultaneously
different from the individual (the family is a group) and from society itself (the ties that
bind members of the same family are different from those that bind in society).
Moreover, it is easy to see that, from his birth until he reaches the age of majority (when
he can vote, enter into contracts, etc.), the individual participates in social life mostly
through his parents and family; and even in adulthood, man’s participation in social life is

6
This is expressed by St. Augustine’s famous line: “(Lord), You have made us for Yourself and
our hearts are restless until they rest in You.” (Confessions, 1,1).
7
This section draws much from the work of Father Joseph M. De Torre, to whom contemporary
social philosophy owes the insight that the family constitutes the immediate material cause of society. See,
among Father De Torre’s many books, The Roots of Society (Manila: Sinag-Tala Publishers, 1984). Father
De Torre is Professor Emeritus of Social and Political Philosophy at the University of Asia and the Pacific.
 6

mostly colored by family considerations (his concern for spouse and children). This
explains the idea of the family as the “basic cell of society” which is echoed in Section
12, Art. II, of the 1987 Constitution.

It is also significant that, even in his material (sensual or pre-rational) dimension,

man also finds himself driven towards association with others. In the first place, as
already noted above, man comes into being through his parents; he survives to adulthood
within the family. Moreover, even on his own, there seems to be in man an “instinct” for
association, alongside his instinct for self-preservation or self-assertion. This sensual
drive towards association with others is classifiable as an instinct in so far as it is similar
to what drives birds to flock together or ants to form colonies.

The two basic instincts of self-assertion and association find rational expression in
ideologies that tend towards either of two undesirable extremes: “individualism” (self-
assertion) and “collectivism” (association); which translate, in the field of politics, into
“liberalism” (individualism) and “totalitarianism” (collectivism); and, in economics, into
“(laissez-faire-) capitalism”, at one end, and “socialism”, at the other. The tension
between these two opposing tendencies lies at the roots of most social upheavals, as in
the French Revolution of 1789 and the Russian Revolution of 1919, which typify the
violence that can attend an oscillation between the extremes of freedom (individualism)
and equality (collectivism).

“Solidarity” (association) and “Subsidiarity” (self-assertion) are the natural-law

principles that harmonize and humanize these contradictory drives. Solidarity is the
proper expression for love which causes social life; while subsidiarity (subsidy, aid)
expresses autonomy via the limitations on intervention: what the smaller unit can do, the
larger unit must not. Solidarity is based on interdependence; subsidiarity on
independence.

Significantly, the contradiction between individualism and collectivism also adds

meaning to the idea of the family as material cause of society: To the extremists, either
 7

the collective must serve the individual or the individual the collective. In truth, both the
individual and the collective must serve the family.

The “union of wills” which constitutes the formal cause of society requires some
kind of “delegation” to a single will: the political authority. This “will” is expressed in
the essential operations of governance: legislation, adjudication, and enforcement;
directed towards the final cause of society, the “common good”, which consists in “the
sum total of social conditions which allow people, either as groups or individuals, to
reach their fulfillment more fully and more easily.”8

It is in relation to the “efficient cause” of society—love or solidarity (the human

expression of the instinct for association)—that the promotion of “justice” (giving
everyone his due, the first principle of which is [right] “order”) becomes the primary
function of government (the political authority operating as the legal system). Justice is
the “minimum” of love; and while love itself cannot be a matter of compulsion, justice
can be.

Justice is of primary importance in social life as the minimum of love. It is the

“manageable” aspect of the efficient cause of society or of what brings and keeps society
in existence. Without justice, there is no “society” to speak of but only a “gang” (of
malefactors). Thus, the primary object of the legal system is justice; hence, the
paramount importance of “due process” in its substantive (reasonableness) and
procedural (fair play) aspects.

The tug-of-war between individualism and collectivism also gives added meaning
to the idea of justice as the primary goal of governance. To the individualist, the primary
goal of governance is to promote “freedom”, in favor of the individual; to the collectivist,
8
Vatican II, Pastoral Constitution on the Church in the Modern World, Gaudium et Spes (1965),
No. 26. It is to be noted that the common good has a “transcendental” dimension since the end of man is
eternal happiness; and it is also a recurring theme of Father De Torre’s works that so much misery in
human history can be ascribed to an “immanentistic” understanding of the common good: the erroneous
assumption that the common good comprises only earthly realities, as in the “materialism” of Marxist-
Leninist thought.
 8

it is to promote “equality” or uniformity, in favor of the collective. In truth, it is to

promote justice which, from the part of government, should primarily favor the family.

The objectivity and subjectivity of morality

As stated earlier, the norms of the natural moral law derive from the truths of
human nature. These norms are “objective”; i.e., they have an existence outside the
consciousness of the individual human person. Whether one agrees or not, murder, theft,
and so on, are immoral. They run counter to human nature.

On the other hand, while the norms of the natural moral law constitute the
objective aspect of morality, the individual’s “conscience”—the judgment of the intellect
concerning the goodness or evil of one’s action in the particular situation—constitutes its
subjective aspect. Thus, the moral culpability of the individual for a particular act (and
his legal liability also in many cases) depends not only on his transgressing some norm of
the natural moral law but also on whether he acted voluntarily and knowingly, i.e.,
against his good conscience. Thus, the insane or feeble-minded are exempt from moral
and legal culpability.

A person must indeed act conformably with his conscience or else be “divided
against himself” (and lose his “integrity”). Still, a person’s conscience may be in error;
in which case, while he might not be morally (nor even legally) culpable for following his
conscience, he may still have to suffer from the consequences of his objectively wrongful
act. Thus, an insane person who ingests a lethal dose of poison would die despite the
absence of moral culpability; and a person who thought nothing wrong of drunken
driving may end up wrecking his car and injuring himself or others. Accordingly, man
also has a duty to have a “right” conscience. Indeed, ignorance of the objective
wrongfulness of one’s particular act does not erase moral culpability if “he should have
known”; i.e., if it was a contrived ignorance or one that he could have overcome. Thus,
the duty to form one’s conscience serves as natural-law basis of the legal maxim,
ignorantia legis neminem excusat.
 9

At the roots of many moral controversies, however, one may find not so much
ignorance as a refusal to accept the existence of objective norms, or an assertion of
“freedom” to define right and wrong. Pope John Paul II, in his 1986 Encyclical Letter,
Dominum et Vivificantem, presents this problem in the context of the Fall of man: The
original sin of Adam and Eve consists, essentially, in appropriating to themselves the
autonomy to determine good and evil, a power reserved to God alone, thereby falling into
the trap laid by the devil: ‘You will become like God.’ Thus:

“We find ourselves faced with the original reality of sin in human history
and at the same time in the whole of the economy of salvation….This
original disobedience presupposes a rejection, or at least a turning away
from the truth contained in the Word of God, who creates the world….For
God the Creator is the one definitive source of the moral order in the
world created by him. Man cannot decide by himself what is good and
what is evil--cannot 'know good and evil, like God'. In the created world
God indeed remains the first and sovereign source for deciding about good
and evil…To man, created in the image of God, the Holy Spirit gives the
gift of conscience, so that in this conscience the image may faithfully
reflect its model, which is both Wisdom and eternal Law, the source of the
moral order in man and in the world. 'Disobedience', as the original
dimension of sin, means the rejection of this source, through man's claim
to become an independent and exclusive source for deciding about good
and evil.”9
9
DeV, Nos. 33-37. Italics ours. Pope John Paul II returns to this theme in his 1993 Encyclical
Letter, Veritatis Splendor:

“In the book of Genesis we read: 'The Lord God commanded man, saying, "You may eat
freely of every tree of the garden; but of the tree of the knowledge of good and evil you
shall not eat, for in the day that you eat of it you shall die."' (Gen 2:16-17)….With this
imagery, Revelation teaches that the power to decide what is good and what is evil does
not belong to man, but to God alone. The man is certainly free, inasmuch as he can
understand and accept God's commands. And he possesses an extremely far-reaching
freedom, since he can eat 'of every tree of the garden.' But his freedom is not unlimited:
it must halt before the 'tree of the knowledge of good and evil', for it is called to accept
the moral law given by God. In fact, human freedom finds its authentic and complete
fulfilment precisely in the acceptance of that law. God, who alone is good, knows
perfectly what is good for man, and by virtue of his very love proposes this good to man
in the commandments….God's law does not reduce, much less do away with human
freedom; rather, it protects and promotes that freedom. In contrast, however, some
present-day cultural tendencies have given rise to several currents of thought in ethics
which centre upon an alleged conflict between freedom and law. These doctrines would
grant to individuals or social groups the right to determine what is good or evil. Human
freedom would thus be able to 'create values' and would enjoy a primacy over truth, to the
point that truth itself would be considered a creation of freedom. Freedom would thus lay
claim to a moral autonomy which would actually amount to an absolute sovereignty.”
(VS, No. 35; italics in the original)
 10

PRO-LIFE VS. PRO-CHOICE

The issue of whether man is free to determine good and evil underlies the pro-life
versus pro-choice debate. The pro-life (natural law) position affirms that human freedom
does not extend to determining what is good or not; that there are objective criteria
beyond the needs or preferences of the individual human person, stemming from the
truths of human nature and the universe, which man could not tamper with without
causing harmful disorder in himself and on his environment.

The pro-choice stand, on the other hand, implicitly argues that, at least in the area
of “reproduction”, there are no objective norms; or that considerations of socio-economic
development, maternal health, etc.—in the end subjective personal preferences—
determine the moral quality of the acts involved. Such position, however, would also
remove the rational basis for any assertion concerning the immorality of all sorts of
patently injurious acts to the person and to society (masturbation, homosexuality, divorce,
euthanasia, etc.), since it would deny the objective inviolability of human life, which
necessarily requires the objective inviolability of the human reproductive process.

Section 12, Article II of the 1987 Constitution, cuts cleanly into the pro-life
versus pro-choice debate as constitutional acknowledgment of objective natural-law
norms. It is clearly a pro-life provision, expressive of natural-law thinking.

The ends of marriage

The goodness or perfection of a thing consists in its functioning according to the

truth of its nature and purpose. The human sexual faculty is ordered by nature towards
the union of the spouses and, inseparably therefrom, procreation.10 This is indeed the
teaching of the Catholic Church, enunciated by Pope Paul VI in his 1968 Encyclical
Letter, Humanae Vitae; but that does not make it less true.

1
10

HV, No. 12.

 11

It is not for nothing that the term “reproductive system” is applied to the
collection of body parts involved. Sex is for reproduction; and it is therefore an abuse, a
moral disorder, to utilize the human sexual faculty in denial of its procreative end, which
is what contraceptive sex is all about. (Natural family planning methods are morally licit
precisely because they consist in the non-use of the sexual faculty during the fertile
periods—there is no disorder here.)

Contraceptive sex is immoral just as it is immoral to eat for the sake of satisfying
the appetite, in denial of the end proper to the “digestive system”, which is the
nourishment and preservation of the individual's life. The pleasures involved in eating,
and for that matter, in sex, are nature's ways of helping man to achieve necessary ends he
might otherwise neglect to his injury. To place these pleasures above the purposes they
are only supposed to facilitate would be like a bridegroom choosing the bridesmaid over
his bride.

On the other hand, sex is, of course, different from eating: “For, unlike food,
which is necessary for every individual, procreation is necessary only for the species, and
individuals can dispense with it.”11 Indeed, the capacity to enjoy food is directly oriented
to the good of the individual, while the capacity for sex is oriented to the good of the
family and society (preservation of the species) rather than the need of the individual.
This is a truth affirmed by those who have lived holy celibacy.

This divergence in ends would explain why the immorality of contraceptive sex is
perhaps less obvious (to the individual) than that of gluttony (the unbridled appetite for
food and drink, in which induced vomiting, to allow one to continue eating or drinking, is
roughly the moral equivalent of contraception). The undesirable consequences of the
disorderly use of the sexual faculty (on family and society) may not directly affect the
individual actor or agent, unlike those arising from over-eating or drunkenness.
The different purposes of the appetites for sex (social) and food (individual)
would also explain why the pleasure in sex is more intense than in eating, This would be
1
11

St. Josemaria Escriva, The Way, No. 28.

 12

nature's way of compensating the individual for serving the social purpose. It is obvious
that most people would still eat, knowing they need to in order to live, even with only the
gentle prodding of the apetite. On the other hand, far less would think of marriage and
raising a family without the greater incentive and strong urge therefor accompanying the
marital act. Even so, the analogy stands: gluttony leads to the death of the individual; sex
in denial of its procreative purpose leads to the death of the family and society.

Proponents of the notion that contraceptive sex were morally licit would argue
that the purpose of the human sexual faculty is served already in the loving union of the
partners; that there is no need to advert to the procreative end. On the contrary, however,
to deny the procreative end of sex would also remove the rational basis for the very
existence of the institution of marriage. Indeed, an indissoluble marriage is necessary
precisely because sex is intended by nature for procreation, which includes the
upbringing and education of the offspring; and because human life, in its totality, is so
fragile in its developing stages. The good upbringing and education of the human
offspring requires a lasting partnership of the father and mother, i.e., lasting
independently of the changeable preferences and circumstances of the parties. Thus, if
sex is not for procreation, the institution of marriage would be meaningless.

It is precisely because of the obvious procreative purpose of sex that even

primitive cultures have some sort of mariage. The common good requires a social
“mechanism” to ensure the welfare of the offspring. Thus, to hold that the conjugal act
may be separated from its procreative purpose, so as to justify contraceptive sex, is also
to justify divorce (no need for permanence in the partnership of the spouses) and
homosexuality (no need for procreation), and so to open the floodgates for the
unwholesome scenarios arising from a prevalence of these (broken homes, juvenile
delinquency, the AIDS epidemic, etc.), not to mention the problems of shrinking or aging
populations in those nations that have early on adopted birth-control policies, confusing
issues of social-justice, economics, etc., with supposed over-population.

Contraceptive sex is immoral not because the Catholic Church says so but
 13

because it is contrary to the natural moral law.

Parenthetically, the idea that procreation is inseparable from the union of the
spouses in the end or purpose of marriage is not to disregard the responsibility of couples
vis-a-vis the number of their children. The Church also teaches:
“those are considered to exercise reponsible parenthood who prudently
and generously decide to have a large family or who, for serious reasons
and with due respect to the moral law, choose to have no more children
for the time being or even for an indeterminate period….The Church,
nevertheless, in urging men to the observance of the precepts of the
natural law, which it interprets by its constant doctrine, teaches as
absolutely required that in any use whatever of marriage there must be no
impairment of its natural capacity to procreate human life.”12

It must be noted, however, that the choice here is made in the decision to “use” or
not the sexual faculty (and, for that matter, in the decision to be united in marriage).
Such choice, once made, commits the couple; and it cannot be overemphasized that
authentic human freedom is inseparable from commitment and responsibility.13 It is a
false notion of freedom which holds that one may eat his cake and keep it, too.

Human liberation, the increase or restoration of freedom to reach man’s end, is

not to be found in choosing what is objectively wrong. The option for contraceptive sex
cannot be an exercise of authentic human freedom because it is contrary to the truths of
human nature, even if its dire, enslaving rather than freeing, consequences may not be
clearly or immediately visible to the individual. Contraceptive sex may indeed appear to
be liberating in the immediate; but like alcoholism, it presents a lesser “good” which
should not be exchanged for the greater in relation to man’s ultimate end.

Abortion
12
HV, Nos. 10 and 11; italics ours. It is to be noted that the reasons for regulating births should be
“serious”, and the methods employed conform with the norms of the natural moral law.

13
Authentic human freedom may also be expressed as the capacity to be “perfect” (Mt 5:48) or to
be fully man, which means behaving according to the truths of the nature and purpose of human existence.
It does not imply unlimited choice since it must bow to objective reality and the natural consequences of
the choice made, which thereby binds (commitment) and produces happiness or misery (responsibility).
 14

In its Philippine version, the life-versus-choice debate is still narrowly focused on

the issue of contraception, the soft frontline of the conflict. Being largely a Catholic
population, Filipinos are, thankfully, still far from suffering open discussion of the
“merits” of abortion and euthanasia. And yet, it is a serious misunderstanding to view the
controversy as a religious or sectarian conflict just because the Catholic Church has been
most vocal and articulate in defending life and in opposing what has come to be known as
the “culture of death” and its soft-selling precursor, the “contraceptive mentality”.

Indeed, Section 12, Article II of the 1987 Constitution, effectively bars the
possibility of de-criminalizing abortion,14 since it protects the “unborn” from the moment
of “conception”. In fact, this provision is primarily intended to prevent the State from
legalizing abortion15 or adopting the U.S. Supreme Court ruling in Roe v. Wade.16

In Roe, the U.S. Supreme Court struck down a Texas statute criminalizing
abortion as violative of the mother’s right to privacy, a right qualified only by the state’s
interest in “protecting the health of the pregnant woman” and “protecting the potentiality
of human life”. These state-interests increase, according to the majority, “as the woman
approaches term”, and become “compelling” at some “point during pregnancy”. Thus,
the court arbitrarily determined those compelling points “at approximately the end of the
first trimester” (for the state’s interest in maternal health) and “at viability” (for the
interest in potential life), i.e., after the second trimester, when state intervention would be
warranted. It was argued, to the contrary, that “life begins at conception…and that,
therefore, the state has a compelling interest in protecting that life from and after
conception.” The court, however, refused to rule on “the difficult question when life
begins”.

14
Abortion is penalized in Arts. 256-259, Revised Penal Code.
1
15

Bernas, op. cit..

16
410 U.S. 113 (1973).
 15

On the question of when human life begins, there is actually no basis for saying
that human life does not begin at conception, as opposed to the truth that the fertilized
ovum is human (it cannot be a member of another species), genetically unique (no longer
just a part of the pregnant woman’s body), alive and growing. Indeed, human life is not a
question of size or skill, and “viability” is truly an arbitrary concept. Neither does it
stand to reason that the right to life could be a function of its being “meaningful”, as
subjectively determined “by other, more powerful lives”.17 Human life does begin at
conception, and our Section 12, Article II, places this fact beyond the quibbling of
lawyers.

The majority decision in Roe comes with the dissent of, among others, then
Justice (later Chief Justice) Rehnquist, principally on the ground that it constitutes
“judicial legislation” (suggestive of a positivist view on his part); but the decision has
since withstood attempts to overturn it, notably in Planned Parenthood v. Casey,18 which
upheld Roe on the basis of stare decisis but also rejected the “trimester framework” in
favor of an “undue burden standard” to determine the constitutional validity of a state’s
“regulation” of abortion. In his dissenting opinion in Casey, Chief Justice Rehnquist
(joined by three other justices) clearly declared “that the Court was mistaken in Roe when
it classified a woman’s decision to terminate her pregnancy as a ‘fundamental right’ that
could be abridged only in a manner which withstood [‘strict scrutiny’]”.

The reasoning in these cases may be seen to run, for the most part, along the lines
drawn by the historical and sociological schools of jurisprudence, as in the appeal to
precedent and the efforts at assigning relative weights to the contesting claims of the state
and the mother (but excluding the unborn). There is also a marked avoidance of the
positivist approach, perhaps because history has shown how positivist thinking easily
lends itself to supporting despotic regimes. It is submitted, however, that a natural-law
approach would have settled the issues more persuasively and, therefore, with greater
stability.
17
For a compendium on the issue, see Randy Alcorn, ProLife Answers to ProChoice Arguments
(Portland: Multnomah, 1994). Reprinted by Flame Ministries, Inc. (Pasig City).
1
18

505 U.S. 833 (1992).

 16

Incidentally, it should be noted that the Jane Roe who was lead plaintiff in the
1973 case of Roe v. Wade has turned out to be one Norma McCorvey who had a change
of heart more than 20 years later to become a “vocal anti-abortion activist”19.

The jurisprudential and human social and personal conundrum spawned by Roe is
precisely what our Section 12, Article II, prevents. Any legislation purporting to allow
abortion (or to diminish the penalties), no matter how regulated, would be
unconstitutional and therefore void. A repeal of the criminal statutes which at present
penalize abortion would even elevate the act to the crime of murder, since the life of the
unborn from conception is “equally” protected as the life of the mother.

Even so, the life of the unborn is not as secure as may seem, in view of a rising
clamor for constitutional change. While the desire for change may arise from other
issues, such as the need to shift from the presidential to a parliamentary form of
government, any constitutional revision would no doubt re-open debate on the family-
and-life provisions of the 1987 Constitution. Moreover, that a debate goes on at all
regarding contraception (whether or not the State should promote birth control), even if
only at the level of government planning, does not augur well for the unborn Filipino and
his family.

The U.S. Supreme Court decision in Roe was precisely preceded by Griswold v.
Connecticut,20 where statutory provisions penalizing the use of contraceptives were
voided as unconstitutional, also on right-to-privacy grounds. A defeat along the frontline
of contraception may indeed presage defeat on the graver issue of abortion.

1
19

Douglas S. Wood, “Special Report”, CNN.com (1998 Cable News Network, Inc.).
2
20

381 U.S. 479 (1965).

 17

Without necessarily advocating the criminalization of contraception 21, the

“sanctity” of family and life would be better defended by drawing the battle lines farther
away from abortion, euthanasia, and divorce.

THE FUTURE OF THE FILIPINO FAMILY

At present, the well-being of the Filipino family is threatened by persistent efforts

at legalizing divorce, same-sex unions, and by bureaucratic action to reduce the rate of
population growth (which inevitably demands contraception). It is submitted that these,
too, like abortion, should be understood as proscribed by Section 12, Article II of the
1987 Constitution.

If the family-and-life provisions of the Constitution are to be read, as should be, in

their natural-law context, such actions would readily be seen as repugnant to the
fundamental law. Divorce, same-sex unions, and contraception are in a direct conflict
with the natural-law philosophy behind Section 12, Article II. Likewise, government
action at the bureaucratic level—propaganda, assistance and incentives—aimed at
motivating families to reduce the number of their children, and mostly targeting and
victimizing the poor, runs counter to the concept of family as “basic autonomous social
institution” protected by the constitution.

The autonomy of the family is violated when government assumes the power to
say that families should have only a few children; or to brainwash the poor, with catchy
but fallacious slogans, not to multiply. This is an undue encroachment by the State,
reflective of a collectivist philosophy, on the prerogatives of the family. It is contrary to
the principle of subsidiarity.

2
21

Some drugs and devices (such as the IUD) commonly regarded as contraceptive are, in fact,
abortifacient, since they prevent “implantation” (in the uterus) after fertilization (conception); and the users
and dispensers of such material may be held criminally liable even under existing law.
 18

On the other hand, it is an individualistic philosophy that underlies contraceptive

campaigns purporting to promote “safe sex” or the health of the mother. Thus, the family
is fighting a two-front war against individualism and collectivism in a struggle for
primacy. The correct direction, justice, in which government efforts should go, is to
place the family above both the individual and the collective. The principles of solidarity
and subsidiarity call for government protection and respect in favor of the family.

This is not to deny legitimate claims for respect and protection on the part of the
individual and the collective. Such claims, however, should not override the interests of
the family. Thus, government could not legitimately accord respect or protection to the
individual’s claim of “freedom” to abort or “terminate pregnancy” or to violate the
marriage vows, nor to any supposed collective interest in reducing births, all of which
claims naturally tend to the destruction of the family and, ultimately, also of the
individual and of society itself.

The State has no right to dictate, directly or indirectly, the number of children a
family should have; and it can be seen that underlying government efforts towards this
end are non-legitimate considerations: making the task of bureaucratic-planning easier
(which opens the family to greater impositions); or of covering up government corruption
and inefficiency which are the real causes of underdevelopment; and, even worse, of
eugenics (“good-birth”), toward the goal of keeping the world spacious and pleasant for
the supposedly “superior” (in terms of race, wealth or skill) to the exclusion of the
“inferior”. The eugenic considerations may be seen from the fact that pressure and
funding for birth-control programs flow from North to South, from rich to poor.22

It is submitted that bureaucratic action along these lines may also be defeated, in a
proper case, on the basis of Section 12, Article II. Why should the Department of Health
or Education (or local governments) be allowed to de-value children, using tax money at
that, just because some Secretary or Senator loves to use condoms?

22
These points are comprehensively presented and documented in Jacqueline Kasun, The War on
Population: The Economics and Ideologyy of Population Control (San Francisco: Ignatius Press, 1988).
Reprinted in the Philippines by National Bookstore, Inc.
 19

All human life is good. Pregnancy is not a disease. Responsible parenthood does
not consist in having few children but in the efforts of parents to discharge their vocation
to the procreation and education of offspring. And peoples and nations do not become
richer or happier because their members are few.

We cannot help but end with Pope John Paul II:

“The Gospel of Life is at the heart of Jesus’ message….Man is

called to a fullness of life which far exceeds the dimensions of his earthly
existence, because it consists in sharing the very life of God…life on earth
is not an ‘ultimate’ but a ‘penultimate’ reality; even so, it remains a sacred
reality entrusted to us to be preserved with a sense of responsibility and
brought to perfection in love and in the gift of ourselves to God and to our
brothers and sisters.

“The Church knows that this Gospel of life, which she has received
from her Lord, has a profound and persuasive echo in the heart of every
person—believer and non-believer alike—because it marvellously fulfils
all the heart’s expectations while infinitely surpassing them. Even in the
midst of difficulties and uncertainties, every person sincerely open to truth
and goodness can, by the light of reason and the hidden action of grace,
come to recognize in the natural law written in the heart (cf. Rom 2:14-15)
the sacred value of human life from its very beginning until its end, and
can affirm the right of every human being to have this primary good
respected to the highest degree. Upon the recognition of this right, every
human community and political community itself are founded

“In a special way, believers in Christ must defend and promote this
right, aware as they are of the wonderful truth recalled by the Second
Vatican Council: ‘By his incarnation the Son of God has united himself in
some fashion with every human being’ (GS, No. 22). This saving event
reveals to humanity not only the boundless love of God who ‘so loved the
world that he gave his only Son’ (Jn 3:16), but also the incomparable
value of every human person.”23



23
Encyclical Letter Evangelium Vitae (1995), Nos. 1-2. Italics in the original.