Now is the Time to Repeal the Global Gag Rule, Once and for All

Now is the Time to Repeal the Global Gag Rule, Once and for All

The United States, through its international development agency USAID, is the largest donor in international family planning in the world, with an annual programmatic budget exceeding $600 million.[1] However, since 1984, USAID’s funding for essential reproductive and sexual health services has come with strings attached in the form of the Global Gag Rule. At its core, the Global Gag Rule forces international organizations to choose between critical funding and the inclusion of abortion services writ large. Enacted, rescinded, and expanded by executive orders and presidential memorandum, the Global Gag Rule threatens global health by creating compliance confusion for providers, chilling U.S–foreign health relations, and preventing millions of patients from getting life-saving reproductive care. Because of these far-reaching public health consequences, I argue that it is insufficient to give incoming presidents the absolute power of the pen to dictate abortion access worldwide. The Global Gag Rule has created a global health crisis, and must be eliminated once and for all. Given the lack of litigation success against the Global Gag Rule and a recent Supreme Court decision that all but shut the door to future challenges, the Global Gag Rule must be legislatively abolished if we are to truly effectuate a fundamental health-care right.

In 1984, President Regan introduced the Mexico City Policy—known by opponents as Global Gag Rule—at the United Nations International Conference on Population and Development.[2] Since its creation, the policy has been enacted and rescinded along party lines via presidential memorandum.[3] When enacted, foreign nongovernmental organizations (NGOs) that receive various types of U.S. foreign assistance funds may not provide, advocate for, counsel on, or refer abortion as a method of family planning with exceptions for cases of rape, incest, or life of the woman.[4]  Further, the policy prohibits recipients from using their own, non-U.S. funds for abortion as a method of family planning.[5] In 2017, President Trump reinstated and expanded the Global Gag Rule via presidential memorandum. This expansion, renamed Protecting Life in Global Health Assistance (PLGHA), vastly amplified the reach of the destructive policy by attaching the anti-abortion provision to all global assistance funds, which total around $9 billion and range from from HIV/AIDS programs to nutrition and malaria funding. On his eighth day in office, President Biden kept his campaign promise and rescinded the Global Gag Rule through another presidential memorandum.[6]

Since the first legal challenge to the Global Gag Rule in 1989,[7] constitutional challenges—including those based on free speech, due process, and freedom of association—have failed. From the outset, federal courts have dismissed many legal challenges for lack of Article III standing, holding that plaintiffs could not show an injury because the effected parties are primarily foreign NGOs. [8] Constitutionally, U.S. federal courts have repeatedly refused to implicate the First Amendment in challenges to the Global Gag Rule, holding that domestic organizations can still use their own money to fund abortion directly and foreign NGOs can simultaneously use “gagged” funds for other programming not related to abortion.[9] In addition, courts have consistently held that a “chilling effect” on association between domestic and foreign NGOs does not rise to the level of a freedom of association violation.[10]

In 2020, after nearly a decade of litigation and multiple Supreme Court appearances, the Court upheld the constitutionally of a similar foreign funding restriction often called the “prostitution pledge.”[11] In 2003, the Leadership Act established several limitations on funding for recipients of the President’s Emergency Plan for Aids Relief (PEPFAR).[12] Relevant to the litigation, the “Policy Requirement” of the Leadership Act stated that no funds may be used by an organization “that does not have a policy explicitly opposing prostitution and sex trafficking.”[13] In the 5-3 decision,[14] the Court held that “as foreign organizations operating abroad, plaintiffs’ foreign affiliates possess no rights under the First Amendment.”[15] This ruling essentially overturned a 2013 decision involving the same parties that held that the Policy Requirement violated the First Amendment rights of domestic recipients.[16] Based on the similarity of the two policies, and the makeup of the current Court, it is now almost impossible to imagine that any challenge to the Global Gag Rule will be able to gain a constitutional foothold.

Even when the policy is rescinded during a Democratic presidency, the Global Gag Rule harms patients and foreign NGOs more broadly by creating confusion and blocking access to essential abortion services. As we have seen under the Trump presidency, the Global Gag Rule can be easily expanded and attached to a huge pot of USAID funding. The United States cannot expect to be a leader in global health with this volatile and harmful policy. The Global Gag Rule, therefore, must be permanently eliminated.

Given previous precedent, any lasting change to the Global Gag Rule needs to be executed through congressional statute. For the first time in years, there is now some hope that congressional action may finally happen. Originally introduced in 2017 by Senator Shaheen and Representative Lowey, the reintroduced 2019 Global Health, Empowerment, and Rights Act (Global HER Act) would reverse the Global Gag Rule and allow foreign NGO-recipients to use their own funds to provide abortion care.[17] The Act would also make it impossible for future presidents to re-implement the Global Gag Rule through executive order. With 165 cosponsors in the House and the new democratically-controlled Congress, now is the time to secure the United States’ place as a leader in abortion access worldwide, rather than a deadly roadblock.

[1]           [1].      Family Planning and Reproductive Health Program Overview, USAID (June 2019), https://www.usaid.gov/sites/default/files/FP-overview-6-12-19.pdf.

[2]           [2].      Policy Statement of the United States of America at the United Nations International Conference on Population (Second Session) (Aug. 6-14, 1984), available at https://www.uib.no/sites/w3.uib.no/files/attachments/mexico_‌city_policy_1984.pdf

[3]          [3].      President George H.W. Bush retained the policy when he took office. President Bill Clinton rescinded the policy via presidential memorandum. Memorandum on the Mexico City Policy, 29 Weekly Comp. Pres. Doc. 88 (Jan. 22, 1993). During his presidency, President Clinton did include the Mexico City Policy as a one-year “rider” in exchange for a seat at the UN General Assembly. Sneha Barot & Susan A. Cohen, The Global Gag Rule and Fights over Funding UNFPA: The Issues That Won’t Go Away, 18 Guttmacher Policy Review 27, 28 (2015).  President George W. Bush reinstated the policy in 2003, and expanded the Global Gag Rule to funding from the State Department. Memorandum on Assistance for Voluntary Population Planning, 39 Weekly Comp. Pres. Doc. 1124 (Aug. 29, 2003). President Barack Obama repealed the policy on his third day in office due to “excessively broad conditions on grants and assistance” that “undermined efforts to promote safe and effective voluntary family planning programs in foreign nations.” Mexico City Policy and Assistance for Voluntary Population Planning, 74 Fed. Reg. 4903 (Jan. 28, 2009).

[4]          [4].      Abortion as a method of family planning is defined as “for the purpose of spacing births,” including abortion for the physical or mental health of the woman. Standard Provisions for Non-U.S. Nongovernmental Organizations: A Mandatory Reference for ADS Chapter 303 79, United States Agency for International Development (USAID) (2019), available at https://www.usaid.gov/sites/default/files/documents/1868/303mab.pdf. [hereinafter 2019 Non-U.S. NGO Standard Provisions]; see International Family Planning: The “Mexico City” Policy 2 (2001), Congressional Research Service, available at https://www. everycrsreport.com/files/20010402_RL30830_ c36ae9159587c6ca12d4da8edacc125b1394ce6c.pdf

[5]          [5].      2019 Non-U.S. NGO Standard Provisions, supra note 4.

[6]          [6].      Jennifer D. Sciubba, Biden just recinded the ‘global gag rule.” The next Republican preidnet will restore it., Wash. Post, Jan. 29, 2021, https://www.washingtonpost.com/politics/2021/01/29/biden-just-rescinded-global-gag-rule-next-republican-president-will-restore-it/.

[7]          [7].      See generally DKT v. USAID, 887 F.2d 278 (D.C. Cir. 1989).

[8]          [8].      Anjalee Behti, Trump’s Ruthless Expansion of the Mexico City Policy Threatens Reproductive Health Abroad, 53

U.S.F. L. Rev. 117, 129 (2019). In the first legal challenge to the Global Gag Rule, the D.C. Circuit court in DKT Mem’l Fund v. Agency for Int’l Dev. affirmed the District Court decision that the “foreign plaintiffs had no First Amendment rights and therefore no standing to assert a violation of such rights.” 887 F.2d 278, 279 (D.C. Cir. 1989). However, the court made the point to mention that “we will not, however, hold as the government urges, that an alien beyond the bounds of the United States never has standing to assert a constitutional claim.” Id. at 285.

[9]          [9].      See Planned Parenthood v. Agency for Int’l Dev., 915 F.2d 59, 60. (2nd Cir. 1990).

[10]          [10].      Center for Reproductive Law and Policy v. Bush, 304 F.3d 183, 189.

[11]          [11].      See Supreme Court Upholds Prostitution Pledge for AIDS Funding, Assoc. Press, Jan 29, 2020, https://apnews.com/article/3807be588f4d82949a7759420a969d48.

[12]          [12].      Anti-Prostitution Loyalty Oath (APLO), Center for Health and Gender Equity (August 2015).

[13]          [13].      Note that while the language of the Leadership Act often conflates prostitution and sex trafficking, they are different issues.

[14]          [14].      Justice Kagan did not participate in the case due to previous conflicts from her time at the Justice Department.

[15]          [15].      Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. 2082, 2087 (2020)

[16]          [16].      All. for Open Soc’y Int’l, Inc. v. Agency for Int’l Dev., 570 U.S. 219 , 221 (2013).

[17]          [17].      Heater D. Boonstra, The Global HER Act Would Repeal the Harmful Global Gag Rule, Guttmacher Institute, Feb. 7, 2019,  https://www.guttmacher.org/article/2019/02/global-her-act-would-repeal-harmful-global-gag-rule

 

Emma Walters: Publishing Editor for the California Law Review and member of Berkeley Law Class of 2021.

Emma Walters, Now is the Time to Repeal the Global Gag Rule, Once and for All, Calif. L. Rev. Online (Mar. 2021), https://www.californialawreview.org/now-is-the-time-to-repeal-the-global-gag-rule-once-and-for-all.

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