by Aziza Ahmed, Professor of Law at Northeastern University School of Law
The United States has long been the largest bi-lateral donor in family planning assistance. Amongst other health services, this funding is dedicated to promoting reproductive health services, providing modern forms of contraception and responding to needs in maternal health care. In 1984, at the International Conference on Population in Mexico City, then President Ronald Regan announced the Mexico City Policy or what has come to be known as the “Global Gag Rule.” The policy mandated that United States family planning funding could not be used to “perform or actively promote abortions as a method of family planning.” The Mexico City Policy added restrictions to the Helms Amendment passed in 1973 which prohibits United States Foreign Assistance from paying for “the performance of abortions as a method of family planning or to motivate or coerce any person to practice abortions.” The Helms Amendment, however, only applied to U.S. government money – non-U.S. funding could be utilized to provide abortion related services. The Mexico City Policy goes much further: mandating that U.S. government funds would not be given to non-governmental organizations who provide abortion related services with their own funding or funding from other sources. In other words, organizations receiving U.S. money would have to choose whether to refuse U.S. funds (risking closure) or turn away women needing abortion related services. In announcing the Mexico City Policy, Reagan further ensconced U.S. family planning assistance in domestic abortion politics and policy, placing the lives and health of people residing in countries where U.S. aid supplemented health services on reproductive health at significant risk.
Since its inception, each Republican Administration has reinstated the rule while each Democratic administration (with some exception) has stopped its application to U.S. foreign assistance. Each time the policy is renewed or revoked days after the change in administration – making the Mexico City Policy a way to cater to the political base of the newly elected party. There has been subtle acknowledgement even from Republicans that the Mexico City Policy has a negative impact on health programming. The George W. Bush administration, for example, which initiated the President’s Emergency Plan for AIDS Relief, a multi-billion dollar initiative aimed at the prevention and treatment of HIV, limited the application of the Mexico City Policy to HIV/AIDS money despite the conservative anti-choice rhetoric of the party.
In keeping with the Republican push to limit reproductive and maternal health services for women, and as evidenced by current domestic healthcare reform debates, the Trump administration reinstated the Mexico City Policy on January 23, 2017. This time, however, the Trump administration went even further: they broadened application of the policy making all global health funding subject to its restrictions.
As it has in the past, the policy will create confusion and doubt amongst providers on what constitutes “promoting” abortion as a “method of family planning.” For example, the guidelines state that promoting abortion includes “providing advice that abortion as a method of family planning is an available option or encouraging women to consider abortion” yet makes an exception if the provider is “passively responding to a question regarding where a safe, legal abortion may be obtained… if a woman who is already pregnant specifically asks the question, she clearly states that she has already decided to have a legal abortion, and the healthcare provider reasonably believes that the ethics of the medical profession in the host country requires a response regarding where it may be obtained safely and legally.” The lack of clarity for providers as to what constitutes a “passive response” could result in providers self-censoring in order to maintain U.S. government funding. Further, in many settings women may not realize abortion is an option or available to them, thus eliminating the possibility that a woman will “specifically ask” for an abortion. That the patient and provider may arrive at abortion as a means of ending an unwanted pregnancy may no longer be possible under the current guidelines.
The Mexico City Policy has been the subject of litigation. In 2002, the Second Circuit Judge and now Supreme Court Justice Sonia Sotomayor held that the Mexico City Policy did not violate the First Amendment. Sotomayor’s decision reflected past holdings by the Second Circuit and the U.S. Court of Appeals for the D.C. Circuit. More recently, however, in the 2013 decision Alliance for the Open Society Institute (AOSI) vs. the United States Agency for International Development (USAID), the Supreme Court held that a requirement that asked organizations to pledge that they would take the U.S. government position on sex-trafficking and prostitution was unconstitutional. While the Mexico City Policy also essentially mandates that organizations take the U.S. government position on abortion, a long history of abortion exceptionalism in U.S. jurisprudence suggests that the policy might not be found unconstitutional despite the clear impact it has on the ability of providers to speak freely about the care needed for their patients.
The public health impact of the Mexico City Policy is well-documented. Multiple investigations have found that prior iterations of the Global Gag Rule harms women in poor and under resourced health settings by threating the capacity of organizations that rely on U.S. government funding to keep their doors open. Staying on course with the Republican Party Platform, the Trump administration will place the lives of many people at risk by depriving them of necessary reproductive health services.
If U.S. funding for family planning and reproductive health services is to better the lives of individuals who live in environments where health systems rely on aid money, the Mexico City Policy must be revoked.