[DASH of SAS] Supreme Court TRO on contraceptives not yet lifted
Last May 26, after almost two years, the Supreme Court released its resolution on the status of the temporary restraining order (TRO) on contraceptive implants and the product registrations of all oral contraceptives.
First, the TRO has not been lifted yet.
But the High Court did clarify its decision on a number of issues.
First, it clarified that the TRO only covers contraceptive implants, those rods that look like matchsticks inserted in a woman’s upper arm. Last Friday’s decision claims that the High Court never meant to impact all the processing of “the entire gamut of family planning supplies that have been declared as unquestionably non-abortifacient.”
However, it may be recalled that in the TRO issued last June 17, 2015, makes explicit mention that :
"respondents (DOH), their representatives, agents or other persons acting on their behalf from:  granting any and all pending applications for registration and/or recertification for reproductive products and supplies, including contraceptive drugs and devices; and  procuring selling, distributing, dispensing, or administering, advertising or promoting the hormonal contraceptive 'Implanon' and 'Implanon NXT'." (Read the Supreme Court resolution here)
It was this clause that led to the stock out of contraceptives in the market. Pharmaceutical companies had their hands tied. They could not issue product registrations (effectively, a license to sell) for existing contraceptive brands and could not register new brands.
This clause also prevented the Department of Health (DOH) from distributing or administering contraceptive implants – after the DOH, with a subsidy from the Bill and Melinda Gates Foundation – procured hundreds of thousands of implants for distribution. Now, those implants, an estimated almost half a million units, are languishing in DOH warehouses and are scheduled to expire in 2018. (READ: When you run out of birth control pills)
Second, the resolution also set the parameters for which the petition of pro-life group Alliance for the Family and Foundation (ALFI) is to be heard. It was based on ALFI’s petition that the TRO was issued.
As DOH Secretary Paulyn Ubial said, “They (the Supreme Court) provided guidance to the DOH on how to proceed to implement the decision of the Supreme Court.”
The Food and Drug Administration (FDA) is mandated to conduct a public hearing on the implants to review the complaint of ALFI and give them their right to due process.
There are two points in the resolution that need to be emphasized:
The procedure in the FDA does not require a trial-type hearing but may consider the opposition of the petitioners as well as the best scientific evidence available which it may obtain on its own.
A formal trial-type hearing is not even essential to due process. It is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present supporting evidence on which a fair decision can be based.
After the final resolution by the Food and Drug Administration, any appeal should be to the Office of the President pursuant to Section 9 of E.O. No. 247. It modified the original judgment by requiring that any appeal from the FDA finding be made to the Office of the President rather than directly to the Court of Appeals.
Effectively, the review of ALFI’s claim that implants are abortifacients will be reviewed and heard with the FDA making the final decision on the matter.
While the ALFI may appeal the FDA decision – which they most likely will – the appeal will not go to the Court of Appeals. It will go to the Office of the President.
President Rodrigo Duterte is a strong supporter of family planning. Last January, he even signed an Executive Order calling for the full implementation of the Reproductive Health Law. It gives us reason to hope that an appeal elevated to the Office of the President will be decided in favor of lifting the TRO.
What does this tell us?
It took the Supreme Court close to two years to clarify its position on its TRO and during that time, drug stores were running out of contraceptives. Women were given no other explanation other than their preferred birth control was out of stock.
Because the idea of not having contraceptives available in the 21st century is outright ridiculous and incomprehensible, many women thought that it was just the usual “out of stock” issue – inconvenient and annoying but certainly temporary.
It was only when government agencies, civil society and various media outlets ran story after story of how contraceptives are disappearing from our shelves and may soon not be available to any person living in the Philippines did we start to realize how dire the situation is.
People were rightfully incredulous and outraged.
We need to sustain that outraged and that indignation.
Pro-life groups will continue trying to limit the implementation of the RH law and the availability of birth control options.
And well, it is their right to do so.
However, our institutions like the Supreme Court, the Department of Health, and the Food and Drug Administration are guided by science, rule of law, and human rights.
They are compelled to uphold and protect our constitutional right to health and that includes access to all forms of birth control.
We citizens need to remind these institutions that we are watching and waiting. We will protect and safeguard our right to access sexual reproductive health services. We trust them to do the same and will hold them accountable if they do not.
Last Friday, the same day the Supreme Court was released, women’s groups rallied in front of the Supreme Court and presented signatures of more than 300,000 men and women calling for the Supreme Court to lift its TRO on contraceptives.
Let us continue making our voices heard. Sign the petition calling for the Supreme Court to lift the TRO.
The fight isn’t over yet. In many ways, what this debacle tells us is that, in many ways, it never will be. – Rappler.com
Ana P. Santos is Rappler’s sex and gender columnist and a Pulitzer Center grantee. In 2014, the Pulitzer Center on Crisis Reporting awarded her the Persephone Miel fellowship to do a series of reports on Filipino migrant mothers in Dubai and Paris.