Can courts adjudicate on the issue of failing health care standards?

The answer to this question will almost always depend not only on the country, state and judiciary the question pertains to, but on how health advocates strategize around legal remedies.

Pondering this question at this moment is the Reproductive Health Advocacy Network (RHAN) in the Philippines, after the launch of an Investigative Report on the "contraceptive ban" in Manila, undertaken by LIKHAAN (Linangan ng Kababaihan), ReproCen and the Center for Reproductive Rights (CRR).

Through an "Executive Order" issued in 2001, the former Manila Mayor Lito Atienza instituted a de facto "ban" on modern contraceptives, although the wording of the EO itself only mentioned "discouraging contraceptives." Mainly though political influence and the Mayor's control over the budgets of local baranggays (the smallest local government unit with elected officials), his policy became the law throughout his nine year term (he was re-elected twice, which is the legal limit).

While the investigative report (entitled "Imposing Misery") outlines the violations of both local and international standards by such a policy, the report also provides a glimpse into the lives of the women who bore the brunt of the Manila ban.

Many of the accounts bring to fore the complex inequity which arises most in poor women's situations in the face of the ban. Many of these cases span the overlap between economic, health and even violence:

"My husband and I would quarrel when I refused to have sex for fear of getting pregnant. He suspected me of having an extramarital affair. He would hit me on the thighs. "

"Sometimes when there is no money to buy condoms and I don't want to have sex with mu husband, he gets angry and forces me. I tell him, 'Aren't you ashamed of yourself?' We have so many kids already and we don't have privacy, our house is so small…Only a thin wall separates us from our neighbors and I don't want them to hear us arguing so I just give in to what my husband wants."

At the forum, LIKHAAN Executive Director Dr. Junice D. Melgar asked: "(1) How grave are violations to right of Family Planning? What can be done to the victims? Their lives were at stake, are they entitled to justice? And (3) how do we make sure that similar conditions will not happen to other LGUs?"

Given the agreement that both local and international remedies are available, given that human rights standards in this area may be invoked in both local and international fora, the issue of local "politics" around reproductive health was raised in relation to the specific issue of a "hospitable terrain." Since 2001, President Gloria Macapagal Arroyo has insisted on her administration's commitment to implementing the Catholic hierarchy's FP position by only funding "Natural Family Planning." Majority of the Supreme Court Justices are also Justices who were appointed during Arroyo's term.

Another issue which arises in the Philippine case of course is the legal issue of "devolution," and the decentralization which it entailed in terms of basic services, undertaken in 1991 through the Local Government Code. While there are enough legal bases holding local governments accountable to a standard of basic health care which includes family planning, the current practice of "devolution" seems more akin to a "hands off policy" by national authorities.

The Report itself mentions interviews with Department of Health Personnel, who despite the clear contradiction between the DOH policy (stated policy still promotes universal access notwithstanding the supplies issue) and Manila's ban, deny the negative effects of the policy.

Iit may prove useful to begin looking at new ways of framing the role of courts in the overall scheme of public health. Prof. Rebecca Cook in an article "Exploring Fairness in Health Care Reform," notes how "national courts all over the world have begun acting as forums for public deliberation of health care rationing."

In the past local courts may have more likely deferred to the national government in terms of health care spending, but it has been shown that it may be possible to "take issue" through courts about the "standards" being observed, vis a vis the national government's constitutional mandates and international commitments.

One interesting Latin American case was where advocates framed the "denial of basic health care" as "inhuman degrading treatment and an infringement of the right to life, security and health care," and cited the state's commitment s to the International Covenant on Civil and Political Rights as well as the International Convention on Economic, Social and Cultural Rights."

This much said, it would seem courts can have a role to play in accounting for health care standards. At this point, it's clearly the health advocates' gambit.

With reports from Atty. Minerva Quintela, Womenlead Lawyer and Atty. Claire Angeline P. Luczon, Executive Director, Womenlead Foundation, Inc.