Global Gag Rule: The Use of AIDS Funding to Control International Reproductive Health Policy
The gag rule (also known as the “Mexico City” policy) was originally announced by the Reagan administration at the 1984 United Nations International Conference on Population in Mexico City. It went further than the previous measures by restricting NGOs relying on funds from the U.S. Agency on International Development from using their own funds to provide abortions. The organizations also were not eligible if they lobbied to make or keep abortion legal in their own country or if they provided abortion referrals.
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Timeline:
1961 Foreign Assistance Act of 1961 authorizes the President “to furnish
assistance, on such terms and conditions as he may determine, for
voluntary population planning.”
1973 The Helms amendment to the Foreign Assistance Act prohibited the use
of U.S. funds for abortion services.
1981 Using U.S. funds for biomedical research and lobbying on abortion has
been prohibited since 1981. In 30 years, no violations have been
reported.
1984 The gag rule (also known as the “Mexico City” policy) was originally
announced by the Reagan administration at the 1984 United Nations
International Conference on Population in Mexico City. It went further
than the previous measures by restricting NGOs relying on funds from
the U.S. Agency on International Development from using their own
funds to provide abortions. The organizations also were not eligible if
they lobbied to make or keep abortion legal in their own country or if
they provided abortion referrals.
1993 The gag rule was then rescinded by President Clinton.
2001 Reinstated by President George W. Bush on his first business day in
office.
2003 President Bush announces PEPFAR (President's Emergency Plan for
AIDS Relief), which was authorized and funded by Congress’s passage
of the Global AIDS Act. This act further prohibited allocation of funds to
any organization that “promotes or advocates” legalization and practice
of prostitution and sex trafficking.” For funding, participants in any
programming would have to express opposition to both. This was part
of a new U.S. policy directive to address the problem of the spread of
HIV by eradicating prostitution.
PEPFAR also required that a third of the budget for prevention
programming (half of the budget) be abstinence-only education.
2005 The Alliance for Open Society International filed for a preliminary
injunction arguing that the “prostitution pledge” violated the First
Amendment on the grounds that the pledge required organizations to
censor their privately funded speech and conform to the government’s
viewpoint. The case survived at the district court, it was appealed by
the government following the issuance of new Health and Human
Services' guidelines, and is currently pending at the district court for a
determination as to whether these new guidelines also violate the First
Amendment.
2008 PEPFAR is authorized. The abstinence-only requirement is turned into a
suggested guideline given reports that most countries were unable to
meet this quota without substantially cutting other programming.
2009 Obama lifted the Mexico City Policy on January 23, 2009, his third day in
office, by executive order. However, this policy change still does not
permit U.S. tax dollars to be used for abortions, but groups that provide
other services, including counseling about abortions are now eligible for
funding.
Obama releases his PEPFAR proposal:
2017 On January 23 2017, his third day in office, President Trump reinstated the Global Gag Rule by executive order.
On January 22, 2001, George W. Bush reinstated the “gag rule” policy, stating that, "It is my conviction, that taxpayer funds should not be used to pay for abortions or advocate or actively promote abortion, either here or abroad." Thus, the agency administering federal money abroad issued a “Standard Provision to be Used in Grants and Cooperative Agreements with U.S. Nongovernmental Organizations” (the “Standard Clause”) which set out criteria for family planning grantees – every participating organization would have to “certif[y] in writing that it does not perform or actively promote abortion as a method of family planning in aid-recipient countries and does not provide financial support to any other foreign non-governmental organization that conducts such activities.” The phrase “actively promote abortion” was defined in the Standard Clause to include “providing advice and information regarding the benefits and availability of abortion,” “encouraging women to consider abortion,” and “[l]obbying a foreign government to legalize or make available abortion.”
The Mexico City policy has been upheld by at least one appellate court. It was tested in the Second Circuit on First Amendment grounds twice and failed. In 1990, Planned Parenthood filed a case claiming that the policy imposed an unconstitutional condition on its speech rights to access a benefit as well as it infringed on its rights to free association by funding foreign NGOs not to associate with it. However, in that case the Second Circuit found that the policy was simply furthered a legitimate interest of the government in preventing abortions, and that it used the least restrictive means to accomplish that goal (thus, it was not in violation of the First Amendment).
The Mexico City policy was then tested again in a lawsuit filed in 2002 by the Center for Reproductive Rights (then the Center for Reproductive Law and Policy).
This time the plaintiffs argued that the Mexico City policy violated their First Amendment rights because it prevented them for lobbying for access to abortions overseas and for petitioning the government overseas. In a decision authored by Judge Sonia Sotomayor, the Second Circuit found that claims not distinguishable from those already decided in Planned Parenthood.
Ninety-seven percent of all unsafe abortions are in developing countries, and have resulted in an estimated 68,000 deaths per year. International organizations increasingly regard the denial of safe abortion services as a human-rights violation. In 1999, the UN Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) determined that neglect of health services that only women need is discriminatory and a deficit that governments must remedy. Furthermore, CEDAW noted that criminalization of abortion is a barrier that states should remove.
While many other developed countries, including the UK, Netherlands, Sweden, Norway, Denmark, and Finland, have moved towards funding access to safe abortions, the U.S. stands out as one that has sought to restrict access for women.
International organizations increasingly regard the denial of safe abortion services as a human-rights violation.
Since the Mexico City policy, funding for AIDS/HIV work has continued to grow. In 2003, President Bush announced PEPFAR, the President's Emergency Plan for AIDS Relief, which allocated $15 billion over five years to fight AIDS in primarily 15 African countries. This program has met with success in providing anti-retrovirals.
However, the program has also received criticism for using the carrot of AIDS funding to push an agenda that is based more on the politics of morality than scientific or social research. For example, AIDS funding has been further conditioned with other restrictions on the ability of organizations to “promote” sex work or trafficking and requirements (the so-called prostitution pledge”) that programming include an abstinence-only education agenda.
Though First Amendment challenges to the Mexico City policy have not been successful, the point may be moot until another administration comes along as the Obama administration rescinded the gag order on his third day in office.
Additionally, Obama has given clues that abstinence-only education will not be a cornerstone of his sex education policies. Furthermore, a case that poses a First Amendment challenge to the “prostitution pledge” won at the district court level by convincing a judge that federal funding should not be a blank check to compel the speech of humanitarian organizations.
“The Gag Rule” – First Amendment Arguments and Their Problems
The “unconstitutional condition” argument – whereby Congress may attach certain conditions through the exercise of its Spending Powers, however these cannot require the surrender of a constitutional right. The Court tends to look disfavorably on conditions that impose restrictions on the use of private money, where the use of public funding may come with restrictions that discriminate based on viewpoint. However, this argument was not well-received by the Second Circuit in a challenge to the Mexico City policy in Planned Parenthood Federation of America, Inc. v. Agency for Intern. Development, where the Court found that the government could legitimately push its own anti-abortion agenda. A similar argument did succeed in a federal court in connection with the so-called “prostitution pledge.” See Alliance for Open Soc. Intern., Inc. v. U.S. Agency for Intern. Development. There, the judge was persuaded that HHS requirements did pose an unconstitutional condition as they did not leave open “adequate alternative channels for communication.”
The gag rule stifles public debate on abortion-related issues. Thus, organizations are muzzled from refuting misinformation in the public discourse, or participating in national policy debates regarding abortion. While organizations may provide raw data on unsafe abortions, they are reluctant to draw anything that might appear to be a conclusion. In a sequel to Planned Parenthood, the Center for Reproductive Rights tried to make the argument that the Mexico City policy restricted its ability to petition to the government to redress its grievances by engaging with gagged NGOs; however, the Court did not find merit in this argument.
The gag rule restricts foreign organizations from engaging in activities that are inconsistent with their own laws and those of the United States. Under U.S. law, women maintain the right to safe and legal abortion services. More than two-thirds of the countries receiving USAID family planning assistance allow abortion for reasons other than to save the life of the woman, rape or incest. The gag rule prohibited organizations from even using their own money to promote or provide abortions.
The gag rule restricts communication between women and their trusted health care providers. Prohibiting organizations from counseling and/or providing referrals on abortion hurts their ability to provide comprehensive health care needed or requested by their clients. This is contravention of informed consent, which is particularly essential in the context of HIV/AIDS, where forbidding discussion of abortion is at odds with disseminating complete information of the potential risks of pregnancy and delivery on the health of HIV-positive women and the risk of transmission to the fetus. The World Health Organization estimates that “[w]ithout preventative treatment up to 40% of children born to HIVpositive women will be infected,” predominantly during pregnancy and delivery, and even with preventative treatment the likelihood of HIV infection is only reduced by half.
Unfortunately, the Supreme Court decision in Rust v. Sullivan analogously permits the gagging of U.S. doctors, operating out of clinics that accept federal funding, from discussing abortions with their patients.
An International Abstinence-only Agenda
Randall Tobias, the Bush administration AIDS coordinator, went on the record, saying that condoms are not effective at preventing the spread of AIDS in the general population before the House of Representatives.
President Bush’s $15 billion AIDS bill, passed in 2003, called for at least a third of prevention funding to be spent on “abstinence-until-marriage programs.” A study by the Genral Accounting Office found that the abstinence only programming restrictions posed challenges in the ability of participating countries to respond to local epidemiology, cultural and social norms under this restriction. When the bill was reauthorized in 2008, it removed this strict requirement and adopted a “balanced” approach to funding. However, the presumption was still an abstinence-only education approach as the a global AIDS coordinator appointed to oversee PEPFAR would have to report to congressional committees when a country that did not spend 50 percent of its funding on “activities promoting abstinence, delay of sexual debut, monogamy, fidelity, and partner reduction.”
Furthermore, information about condom use and references to the value of sex education and condom promotion was reportedly removed from the web sites of the Center for Dieases Control and the Agency for International Development under the Bush administration.
The Obama administration has officially pledged to continue the policy initiatives of PEPFAR in his statement to Congress for the 2010 budget request. However, subtle clues indicate that abstinence-only education might be taking a backseat to other preventive measures. Obama’s plan calls for “combination prevention” and “using different interventions for prevention depending upon a country’s epidemiological, social, and cultural drivers.”