The Church, the State and Women's Bodies in the Context of Religious Fundamentalism in the Philippines

Abstract

After almost 500 years of Spanish colonial rule, Canon law and laws of Spanish origin continue to dominate Philippine family, civil and penal law. Most if not all of these laws place serious limitations on the realisation of women's sexual and reproductive rights. Since 2002, the current president, Gloria Macapagal Arroyo, has increasingly substituted church dogma for state policy, i.e. revoking the reproductive health and family planning policies of her predecessor, rejecting all modern contraceptive methods as forms of abortion, limiting government support for family planning to providing natural methods to married couples, and restricting access to emergency contraception. This article reflects on which advocacy methods will best serve the goals of sexual and reproductive rights when conservative church interests dominate state policy, as is currently the case in the Philippines. Religious fundamentalists, at one and the same time, argue for religious accommodation of their views by the state on the grounds of religious freedom but refuse to entertain, let alone accommodate, a plurality of views on women's sexuality. Thus, it is not enough to base a case in support of sexual and reproductive rights on the separation of church and state since, even though the State claims it is secular, it still manages to impose restrictions and control over women's bodies.

Résumé

Après cing siècles de colonisation, les lois d'origine espagnole continuent de dominer le droit pénal, civil et familial philippin. Toutes ces lois limitent gravement la réalisation des droits génésiques des femmes. Depuis 2002, la Présidente philippine, Arroyo, remplace souvent la politique de l'État par le dogme de l'Église, révoquant les politiques de santé génésique et de planification familiale de son prédécesseur, rejetant toutes les méthodes modernes de contraception comme formes d'avortement, limitant l'appui public aux méthodes naturelles de planification pour les couples mariés, et restreignant l'accès è la contraception d'urgence. Cet article réfléchit aux méthodes de plaidoyer qui peuvent servir les droits génésique et de planification familiale de son prédécesseur, rejetant toutes les méthodes modernes de contraception comme formes d'avortement, limitant l'appui public aux méthodes naturelles de planification pour les couples mariés, et restreignant l'accés à la contraception d'urgence. Cet article réfléchit aux méthodes de plaidoyer qui peuvent servir les droits génésiques quand les intérêts conservateurs de l'Église dominent la politique de l'État. Les fondamentalistes religieux demandent à l'État d'utiliser leurs idées au nom de la liberté religieuse, mais refusent de tenir compte d' une pluralité d'idées sur la sexualité féminine. II ne suffit donc pas de soutenir les droits génésiques en se fondant sur la séparation de l'Eglise et de l'État puisque, si l'État affirme qu'il est laïque, il impose néanmoins des restrictions et un contrôle sur le corps des femmes./abs>

Resumen

Después de siglos de imperio colonial, leyes de origen español aún limitan el cumplimiento de los derechos sexuales y reproductivos de las mujeres en Filipinas. Desde 2002, la presidenta actual Arroyo ha sustituido el dogma eclesiástico por las polı́ticas del estado, revocando polı́ticas de salud reproductiva de planificación familiar de su predecesora rechazo métodos anticonceptivos modernos como modalidades de aborto, la limitando el apoyo gubernamental para los programas de planificación familiar para suministrar métodos naturales de planificación a las parejas casadas, y ha restringido el acceso a la anticoncepción de emergencia. Este artı́culo reflexiona sobre los métodos de gestorı́a que cubrirán las metas de los derechos sexuales y reproductivos cuando los intereses eclesiásticos conservadores dominan las polı́ticas del Estado respete sus puntos de vista, pero, rehúsan considerar, una pluralidad de opiniones sobre la sexualidad de las mujeres. No basta con basar un caso a por los derechos sexuales y reproductivos en la separación de la Iglesia y el Estado ya que, a pesar de que el Estado dice ser secular, aún impone restricciones y control sobre el cuerpo de la mujer.

Key Words:

• contraception
• reproductive rights
• law and policy
• separation of church and state
• fundamentalism
• Roman Catholic church
• Philippines

What sets the Philippines apart from many of its predominantly non-Christian neighbours in Southeast Asia is Roman Catholicism. Despite the diversity of indigenous and ethnic groups and the presence of a sizeable Muslim population in the South, more than 80% of the population are Roman Catholic.¹ The government still excludes single and unmarried women and adolescents from family planning services, hospitals still require husband consent for sterilisation procedures (even in the absence of a law requiring it),² and condoms have no place in a government sex education module on HIV/AIDS.³

In the Philippines, the most lasting norms about women's sexuality and the double standards of sexual morality are not necessarily just imposed through Catholic Church teaching, Sunday mass sermons, or even in Catholic-run schools for girls. After almost 500 years under Spanish colonial rule, Canon law and laws of Spanish origin continue to dominate Philippine family, civil and penal law. Most if not all of these laws pose continuing and direct limitations on the realisation of women's sexual and reproductive rights.⁴ Among others, the penal code, which continues to categorise consented abortion as a crime,* as well as legally defines “prostitutes” as women, is a remnant of the original Kodigo Penal enacted under Spanish colonisation. Yet even a relatively recently enacted law like the Philippine Family Code of 1987 draws influence from Canon law in defining the ground of “psychological incapacity”† for the nullification of marriage (in the absence of divorce law, which is always hotly contested).

The confluence of traditional Catholic sexual morality with the ends of Philippine penal law is best reflected in the category of sexual crimes, which are still referred to as “crimes against chastity”:

“In sum, the controlling concepts that thread the penal provisions on Crimes against Chastity are the following:

•	Virginity raises the penalty. As mentioned earlier, “robbing a woman of virtue” defined as the hymen (proof of sexual inexperience) is the core or essence of the crime committed.
•	Consent lowers the penalty but does not cancel out criminal liability in the crimes of seduction and abduction.
•	Force raises the penalty. It is not enough to say that one was raped but one has to be able to allege that she put up a fight.
•	Good reputation is a pre-requisite in the absence of virginity for widows or single women but not married women.” 4

While certainly not the only institutions that perpetuate sexual stereotypes and the double standard of sexual morality in the Philippines, the historic role of church and state in shaping prevailing concepts of “womanhood” is well established:

“Traditionally there has been a diminution of the status of women associated with both institutionalized hierarchical religions and the formation of the State. In the Philippine Archipelago, the introduction of Spanish colonialism came inextricably linked with Catholicism. Indeed the two were co-determining factors that brought about and delivered a concomitant concentration of power, authority and control into male hands. In this process, male supremacy and the rationalism of Catholicism provided the logic that instituted a transformation of sexual relationships.”⁵⁶

Today, as 600 years ago, the conservative church and state still work in tandem, pushing back decades of gains led by women's rights advocates.

The fundamentals of Catholicism in the Philippines: which Catholics?

While the term “fundamentalist” was first used to describe Christian (not necessarily Catholic) movements against modernity sometime in the 1920s, the term has since acquired other meanings and has been widely used to refer to the most conservative elements of a number of organised religions. The Philippine Catholic hierarchy not only affirms Vatican authority as holistic and absolute, it is collectively demanding legal enforcement of many major tenets of Catholic dogma, especially in regard to women's sexuality and reproductive rights.

Bruce Lawrence ⁷ defines fundamentalism as “the affirmation of religious authority as holistic and absolute, admitting of neither criticism nor reduction; it is expressed through the collective demand that specific credal and ethical dictates derived from scripture be publicly recognised and legally enforced”. Lawrence argues that fundamentalism is a worldwide phenomenon, with a specific form of religious ideology which is anti-modern, but not anti-modernist. In other words, it rejects the philosophical rationalism and individualism that accompany modernity, but it takes full advantage of certain technological advances that also characterise the modern age. The most consistent denominator is opposition to Enlightenment values.

Today the influence of the religious right holds sway over the Arroyo administration, merging state and church interests in putting up fierce opposition to the Reproductive Health Care Act, which establishes quality reproductive health care services as part of primary health care. The same policy was in fact in place under Administrative Order No. 43 in 2000 and the National Family Planning Policy, which provided “universal access” to the range of family planning methods, under Administrative Order No. 50 in 2001.

Less than a year after assuming office in 2001, Philippine President Gloria Macapagal Arroyo's administration began adopting a series of policies, that had the effect of restricting access to modern contraceptive methods such as emergency contraception, and even information regarding these methods. Yet Arroyo is not the first Philippine President who has demonstrated her allegiance to the conservative Church hierarchy. Like Corazon Aquino in 1986, Arroyo first came to power through a “popular uprising” in 2001 that deposed her predecessor, Joseph Estrada. Like Aquino, Arroyo acknowledges a debt of gratitude to the Catholic church and often cites her traditional Catholic religious beliefs. ^89101112

The ban on emergency contraception: pushing the procreation frame

On 7 December 2001, the Department of Health imposed a ban on the emergency contraceptive pill Postinor through Memorandum Order No.18. The pill had been registered with the Bureau of Food and Drugs in April 1999 and enjoyed legal approval by the Department of Health. It was already supposed to be available in government-run women and children protection units for cases of sexual abuse.

Before the pill could actually be imported, however, the ban was imposed following a petition filed by a conservative Catholic group, Abayfamilya, claiming that it was an abortifacient.¹⁴ In a reversal of earlier findings by the previous administration's Health Secretary,* the Bureau of Food and Drugs issued a decision based on Abayfamilya's argument, claiming that the 1987 Constitution defined pregnancy as beginning at “the moment of fertilisation”.

In May 2002, the Womenlead Foundation, representing the Reproductive Health Advocacy Network, filed a petition and a position paper to re-open the Department of Health (DoH) case on Postinor, arguing that women wanting to use the method and women's reproductive health advocates had been denied due process of law in the hearing on the original petition that had led to the ban.

The administrative case is pending before the Secretary of the DoH, and can be appealed to the Supreme Court if the Secretary insists on categorising Postinor as an abortifacient, despite the medical, scientific and even constitutional basis for rejecting this claim. At the core of the case is the attempt by Catholic conservatives to re-interpret a Constitutional clause which discourages the legalisation of abortion in the Philippines as applying to contraception.

This is not the first time the merger of Catholic dogma with policy has been attempted by Catholic conservative groups. In fact, since 1987, right-wing lawmakers have tabled and re-tabled bills in Congress to ban modern contraceptives, based on the same Constitutional clause. Yet the Constitutional Commissioners themselves have interpreted the clause differently, and even Catholic Constitutional Commissioner Father Joaquin Bernas, who is both a Jesuit priest and Dean of the Catholic law school Ateneo de Manila, takes a different position in books he has authored. He maintains that there was not a clear agreement during the Constitutional Convention that pregnancy begins at the point of fertilisation and that a vote was never taken on the issue.¹⁵ In 2002–03, during the hearings on emergency contraception, the Bureau of Food and Drugs made several attempts to summon Father Bernas to testify on this matter, but he never appeared.

This anti-contraception position, literally equating all modern family planning methods, including birth control pills, injectables, IUDs and even barrier methods with abortion, is in fact central to the conservative Catholic position, which also says acceptable sexual relations can take place only within the frame of marital procreation. During the hearings, even DoH physicians, who originally mistook emergency contraception to be the same as mifepristone (used for early abortions), were aghast when Catholic conservatives categorically stated their opposition to all modern methods of family planning and said that procreation and abstinence were the only allowable options.

In July 2002, President Arroyo made her first public statement against family planning,¹⁶ in which she rejected modern methods and said that her administration would not make up for the impending funding deficit after the phase-out of USAID support for the provision of modern methods of contraception in 2004.

Both she and her DoH Secretary Manuel Dayrit, have since made several public statements against modern family planning methods. Echoing the disdain of the Catholic Bishops' Conference for contraceptive use, Arrroyo spoke out against oral contraception usage (despite having previously admitted to using it herself), claiming it had made her cranky later in life. The Health Secretary (a medical doctor) came out in the news categorising the IUD as an abortifacient¹⁷ and later even appeared in the news to suggest the use of birth control pills as fertilisers for flowering plants and condoms as balloons by health workers.¹⁸

Reneging on the commitments to reproductive health and family planning by the previous administration, Arroyo introduced a National Natural Family Planning Strategic Plan in June 2002¹⁹ and soon afterwards, the Department of Health created a Committee on Natural Family Planning, appointing the President of the Couples for Christ Medical Mission Foundation as its chairperson. Couples for Christ is a well-known Catholic NGO, recognised by Papal decree.²⁰

On 8 March 2003, during the celebrations for International Women's Day, Arroyo announced that her administration was going to focus exclusively on natural family planning.⁸ Then, on 24 August 2003, the Department of Health in the Philippines signed over a 50 million peso grant in public funds to Couples for Christ, for implementation of the government's natural family planning programme. By this time, the President and the DoH Secretary were actively promoting exclusive natural family planning as government policy.

The USAID phase-out plan, entitled the Contraceptive Self-Reliance Initiative, is outlined in Department of Health Administrative Order No. 158, 8 July 2004. As part of decentralisation of responsibility for public health services more broadly, the Order encourages Local Government Units to shoulder responsibility for contraceptive provision at local level. In the absence of a national law and policy on reproductive health which sets out standards of care and service delivery, however, many local government officials do not consider themselves obliged to follow the plan. At best, the administrative order is seen as a mere exhortation.

In fact, many conservative Catholic local government chiefs have already opted not to provide modern contraceptive methods any longer and have banned single people and adolescents from accessing public family planning services or receiving family planning information from barangay (local government) health workers.²¹

Pending reproductive health care legislation

The Reproductive Health Care Act (House Bill 4110) was tabled in the 12th Congress in 2003 and would establish a national policy more permanently in law, not only in an executive or administrative order. The bill is actively being supported by the Reproductive Health Advocacy Network, which collaborated in the creation of the text. The Reproductive Health Advocacy Network is the largest national coalition of reproductive health advocates, composed of women's NGOs, community-based organisations, service provider organisations and advocacy organisations with branches, offices, partners and a network all over the Philippines.

In her State of the Nation address in July 2003, President Arroyo labelled the Reproductive Health Care Act as “the abortion bill” and vowed to veto it if it was passed. However, the bill does not even contain a clause to amend the current penal law on abortion; rather, it establishes the integration of post-abortion care into the health services and sets standards for humane treatment in public hospitals of women with complications from unsafe abortions.

But in a country where, as Pangalangan says, “politicians shamelessly seek the benediction of religious leaders, the better to win the vote of loyal flock, and clerics dispense their blessings upon candidates and issue edicts on secular matters”,²² the bill, while it was still before the House Committee on Health, began losing sponsors. It was the eve of an election year in a context of growing fundamentalist influence in government.

Reproductive rights advocacy where church interests dominate the state

In taking on the emergency contraception case, advocates from the Reproductive Health Advocacy Network recognised the potential threat that a ban on this method could pose for a host of other contraceptives which also contain progestogen. Yet beyond the practical question of whether to couch legal actions in the language of protection of rights or assertion of rights, there is a need to reflect on which methods will actually best serve the purposes of advocacy. In order to be strategic, the legal methods used should effectively reflect the actual issues being contested through public advocacy.

A case in point is the principle in the Philippine Constitution of the separation of church and state, and the non-establishment of state religion, in the context of policies against women's reproductive rights. Will a case filed on the basis of “non-establishment and separation” be sufficient to challenge the growing state restrictions on women's reproductive rights? Can a case which questions the granting of public funds to a religious organisation adequately articulate the problem? While it is by all means relevant, framing the issue solely on the basis of the separation of church and state does not accurately address the problem and, more often than not, can sidetrack the real issues.

Recent cases before the Philippine Supreme Court on “separation” demonstrate the shaky, if not totally incoherent, foundations of the principle with which to launch direct challenges to state actions that result in the de facto establishment of a state religion. Last year, for example, the Philippine Supreme Court encountered a case where previously unchallenged standards of women's “sexual morality” were framed as issues relating to the principle of “separation of church and state” for the first time. The case involved Soledad Escritor, a court stenographer, who was the subject of an administrative complaint, filed in court, over her alleged immorality for living with a man who was not her husband, and having a child by him.* Escritor was married to another man and her live-in partner was also married.²³

While admitting the factual circumstances of her first marriage, as well as the first marriage of her current “husband” in her defence, she claimed that she and her partner were in fact validly married under the code of the Jehovah's Witnesses. She further alleged that for the state to adjudge a marriage sanctioned by Jehovah's Witnesses as immoral was a violation of her religious freedom. Needless to say, the investigating judge found the respondent liable for immorality and unabashedly discussed Catholic standards of “morality:”

“(B)y strict Catholic standards, the live-in relationship of respondent with her mate should fall within the definition of immoral conduct, to wit: 'that which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community'…[T]he more relevant question is whether or not to exact from respondent Escritor, a member of 'Jehovah's Witnesses', the strict moral standards of the Catholic faith in determining her administrative responsibility in the case at bar.” ²⁴

In what has proved to be, thus far, its most comprehensive review of jurisprudence on the non-establishment and separation clauses in a single case, the Supreme Court distinguished between the application of the clauses in the United States and in the Philippines, claiming that unlike the US, which has a tradition of strict neutrality in guarding the secular state, the Philippines and Filipinos are by nature religious. Yet the “religious nature” described by the court is dangerously close to being equated with Catholicism.

“Recognising the religious nature of the Filipinos and the elevating influence of religion in society, however, the Philippine Constitution's religion clauses prescribe not strict but benevolent neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strives to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests.” ²³

In this particular case, what was actually at stake was the Supreme Court's understanding of Catholic sexual morality as applied to a “non-Catholic” woman. Yet in the end, the Supreme Court still could not decide whether the issue called for an enforcement of the “immorality” provisions or justified carving out an exemption for the respondent. Despite its lengthy treatise on the history of US and Philippine jurisprudence, the Court ended up remanding the case to the Deputy Court Administrator and requiring the Solicitor General to receive additional evidence on (a) the sincerity and centrality of the respondent's claimed religious belief and practice; and for the State (b) to present evidence on the State's “compelling interest” to override the respondent's religious beliefs and practice; and (c) to show that the means the State adopts in pursuing its interest is the least restrictive of the respondent's religious freedom.²³ To date, the administrative case is pending.

Not surprisingly, the oftentimes very Catholic Philippine Supreme Court, when asked to confront conventional Catholic interpretations of “morality”, steered clear of reviewing existing standards for marital sex. Treating Jehovah's Witnesses as “the (religious) Other”, it held that:

“Respondent Escritor does not claim that there is error in the settled jurisprudence that an illicit relation constitutes disgraceful and immoral conduct for which a government employee is held liable. Nor is there an allegation that the norms of morality with respect to illicit relations have shifted towards leniency from the time these precedent cases were decided. The Court finds that there is no such error or shift, thus we find no reason to deviate from these rulings that such illicit relationship constitutes 'disgraceful and immoral conduct' punishable under the Civil Service Law. Respondent having admitted the alleged immoral conduct, she, like the respondents in the above-cited cases, could be held administratively liable. However, there is a distinguishing factor that sets the case at bar apart from the cited precedents, i.e. as a defense, respondent invokes religious freedom since her religion, the Jehovah's Witnesses, has, after thorough investigation, allowed her conjugal arrangement with Quilapio based on the church's religious beliefs and practices. This distinguishing factor compels the Court to apply the religious clauses to the case at bar.” ²³

In effect, while the respondent Escritor was for all intents and purposes already adjudged immoral by the court, the issue of whether or not to hold her liable for her faith's divergent standard of morality was left open.

Religious liberty, free exercise and women's bodies: an ideological divide

Given that women's sexual and reproductive rights are currently being violated by Catholic proscriptions in the form of government policy, is it enough to base a case in support of sexual and reproductive rights on the separation of church and state and non-establishment? More importantly, will such a challenge allow the other side to claim the right to free expression of religion? Indeed, free exercise of religion vs. non-establishment of religion or separation of church and state have often been characterised by the Supreme Court of the Philippines as competing interests, represented on one side by religious institutions and on the other by secularists.

On the face of it, treating the secular and the non-secular exactly the same seems consistent with principles of religious tolerance and pluralism. And indeed, in the absence of fundamentalism,⁷ such an ideal may be possible. But where fundamentalism exists in the context of liberalism on the part of the state, morality is likely to be equated with religiosity (i.e. as non-secular), and the situation can be fraught with dangerous consequences.

Clearly, secularism, having arisen as a basic tenet of classic liberalism, has often been articulated in the historical context of abuses of power by the church. In a context of such abuse of power, however, it is impossible to expect secular (i.e. non-religious and non-institutionally-backed) policies to be treated on the same level as the policies of a powerful church with a track record like that of the Catholic church in the Philippines.⁵ Thus, it is religious fundamentalists who at one and the same time argue for religious accommodation of their views by the state on the grounds of religious freedom and refuse to entertain, let alone accommodate, a plurality of diverging beliefs on women's sexuality.

A variety of views and faiths, and the co-existence of different religions and non-religion should ideally not be a threat to secularists, but rather the ideal. Yet ironically, while secularists are generally on the side of separation of church and state, and the religious right on the side of accommodation vis-à-vis the state, when it comes to women's bodies, control over women's bodies and women's loss of decision-making power may be the result in either case. Why? Because secularists often use the approach of expunging all signs and forms of religious expression from the public sphere in battles over the control of women's bodies. For example, it has been decreed in France that Muslim girls are banned from donning the hijab (headscarf) in public schools, which they do in accordance with religious practice. Thus, secularists can end up mistaking the separation of church and state as an end itself.²⁴

Both free expression of religion and choice of family planning method, based on grounds of conscience, are Constitutional rights in the Philippines.²⁵ By itself, the continuing sexual discrimination against women perpetrated by legal standards modeled on religious edicts makes for a most compelling indictment, disproving the purported neutrality of the Philippines as a liberal and secular state. Even though the State claims it is secular (notwithstanding whether it is strict in separation or leaning towards accommodation), it still manages to impose restrictions and controls over women's bodies.

Given these considerations, in the realm of legal advocacy strategies, a narrowly framed legal debate around the separation of church and state poses more problems than solutions for women's reproductive rights.

Acknowledgements

The author would like to thank Ms Hiyasmin H Lapitan, Ms Chrissie Ann L Barredo and Ms Maria Karmela J Franco of UP Law for doing initial research as interns of the Womenlead Foundation, Inc. The author also wishes to acknowledge Dr Sylvia Estrada Claudio of Likhaan for often lengthy comments on the ideas that started this article.

Notes

Apart from the penal law, a host of laws single out induced abortion as an exclusion in medical benefits coverage, curiously only for Public Health Employees under Republic Act 7305, March 26, 1992 and sugar plantation workers under Republic Act 6982, May 1, 1991. Other government-run social security benefits do not contain such exclusions. A legal exception to intentional abortion are so-called therapeutic abortions, which was established under Republic Act 2382, June 20, 1959. However, the Philippine Midwifery Act Republic Act 7392 April 10, 1992, and Philippine Pharmacy Act Republic Act 5921 June 21, 1969 consider the performance of abortions and assisting in the performance thereof as grounds for the cancellation of licenses. The Philippine Medical Act and Philippine Pharmacy Law use the term criminal abortions but the Philippine Midwifery Act makes no such distinction.

† Taken from New Code of Canon Law issued in 1983 by Pope John Paul II under Canon 1095.

* Citing the World Health Organization on the efficacy and safety of emergency contraception, the former Health Secretary Dr Alberto Romulo issued the original DoH position, which led to the registration of Postinor.

* Cases of this nature are common in the civil service, where women are barred from claiming maternity benefits if the reported father is not their legal husband. While draft legislation has been tabled to amend the law, the Civil Service Commissioner, who is a known women's rights advocate, has found a way around the law by asking women not to make any reference to (name) the biological father in their claim. (Interviews with Civil Service Commission Chairperson, Karina David, 2002)