Repealing the Global Gag Rule Is Not Enough to Reverse Its Impact
In his first week of office, President Donald Trump issued the largest expansion ever of the global gag rule, a policy that restricts foreign nongovernmental organizations (NGOs) that receive US funds from using non-US provided funds to offer services, referrals, or participate in advocacy on abortion outside the United States.[1] While the global gag rule is a policy historically established through executive order by Republican presidents and revoked under Democratic administrations, President-elect Biden’s rescinding of the global gag rule is only the start of what is needed to reverse its impact.[2]
President Ronald Reagan first enacted the global gag rule, also known as the Mexico City Policy, in 1984.[3] Prior to the policy, foreign NGOs could use non-US funds to engage in certain voluntary abortion-related activities as long as they maintained segregated accounts for any US money received.[4] After the policy, in order to receive funds, a foreign NGO recipient must agree that it would “not perform or actively promote abortion as a method of family planning.”[5] US NGOs are not directly subject to the Mexico City Policy. However, they are limited to providing funding only to foreign NGOs that have pledged adherence to the policy.[6]
Before the Trump Administration reinstated the policy, it applied only to family planning funding. But since 2017, it has been extended to all global health funding.[7] This includes funding for HIV, maternal and child health, malaria, nutrition, and other programs.[8] Such an expansion touched nearly $7.3 billion worth of global health assistance in the 2020 fiscal year, of which family planning was only $600 million.[9] In 2019, the Trump Administration further expanded the policy, prohibiting foreign NGOs who accept the policy from providing any financial support using any source of funds and for any purpose to other foreign NGOs that perform or promote abortion as a method of family planning even if they don’t receive US aid.[10] This has resulted in grave consequences for women worldwide.[11] It has led to more maternal deaths and unsafe abortions, a rise in HIV and AIDS, and the breakdown of civil society coalitions and partnerships that provide reproductive healthcare in poor and rural regions worldwide.[12] Additionally, the policy seems to have the opposite of its intended effect.[13] A study that looked at abortion rates in Sub-Saharan Africa before the Trump Administration even expanded the policy found that abortions rose by 40% in countries during the period the policy was in place.[14] This surge was likely due to NGOs declining US funding and therefore having significantly fewer resources to supply contraceptives.[15]
However, during his lame duck period and during the midst of a deadly global pandemic, the Trump Administration sought to further expand the global gag rule through regulatory changes that would extend restrictions to government contracts.[16] This means that foreign contractors who received global health assistance funding through contracts from federal agencies would only be able to receive such assistance if they comply with the global gag rule.[17] Unlike policy set by executive order, these regulatory changes would be much more difficult for a President Biden to revoke.[18] The rule would have to be rewritten and go through the relevant rulemaking process to be reversed, which takes time and further convolutes the process of receiving aid for contractors.[19]
President Biden’s rescission of the global gag rule will not be enough to restore the world’s trust and confidence in the US as a leader in global health and women’s rights.[20] He will need to act on a broader scale, and reenter treaties and international agencies such as the World Health Organization, the Paris Climate Agreement, and the UN Human Rights Council.[21] And unlike past administrations, Democrat and Republican, who have ignored sexual and reproductive health recommendations from these bodies, President Biden should take these recommendations seriously and act on them.[22] The Biden Administration must also work with Congress to pass the Global Health, Empowerment and Rights Act, which was introduced in 2019 and will permanently repeal the global gag rule.[23] It is essential that he also work with Congress to repeal the Helms Amendment, which has prevented US foreign aid from being used to provide safe abortion services since 1973, even in cases of rape, life endangerment and incest.[24] Lastly, the Biden Administration must set the tone that it will be a fierce advocate for implementing permanent change.[25] Along with clarifying the new rules to wary NGOs who fear a disruption in their services in another four or eight years, this can be achieved by apologizing to countries whose public health goals have been stymied by the Trump Administration.[26] Ultimately, these steps will help restore the US as a true advocate for reproductive health and women’s rights.[27] But they will take time to execute and must be prioritized by the Biden Administration.
Maria Chrysanthem is a staff member of Fordham International Law Journal Volume XLIV.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.
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[1] See Elisa Epstein, Trump Administration Moves to Entrench Global Gag Rule, Hum. Rts. Watch (Nov. 17, 2020), https://www.hrw.org/news/2020/11/17/trump-administration-moves-entrench-global-gag-rule.
[2] See id.; Adva Saldinger & Amy Lieberman, Biden said he’ll rescind the ‘global gag rule.’ What then?, devex, (Nov. 20, 2020), https://www.devex.com/news/biden-said-he-ll-rescind-the-global-gag-rule-what-then-98582.
[3] The Mexico City Policy: An Explainer, Kaiser Fam. Found.: Glob. Health Pol’y (Nov. 4, 2020), https://www.kff.org/global-health-policy/fact-sheet/mexico-city-policy-explainer/.
[4] See id.
[5] Id.
[6] See id.
[7] See Serra Sippel & Akila Radhakrishnan, Rescinding the Global Gag Rule Isn’t Enough, Foreign Pol’y (Jan. 4, 2021, 12:25 PM), https://foreignpolicy.com/2021/01/04/global-gag-rule-trump-biden-reproductive-womens-rights/.
[8] See The Mexico City Policy: An Explainer, supra note 3.
[9] See id.
[10] See id.; What is the Global Gag Rule?, Open Soc’y Found., (Apr. 2019), https://www.opensocietyfoundations.org/explainers/what-global-gag-rule.
[11] See Sippel & Radhakrishnan, supra note 7.
[12] See id.
[13] See The Mexico City Policy: An Explainer, supra note 3.
[14] See id.
[15] See id.
[16] See Epstein, supra note 1.
[17] See Federal Acquisition Regulation: Protecting Life in Global Health Assistance, 85 Fed. Reg. 56549 (Sept. 14, 2020) (to be codified at 48 C.F.R. pt. 1, 7, 25, 44, 52).
[18] See Epstein, supra note 1.
[19] See Saldinger & Lieberman, supra note 2.
[20] See id.; Sippel & Radhakrishnan, supra note 7.
[21] See Sippel & Radhakrishnan, supra note 7.
[22] See id.
[23] See Zara Ahmed, The Unprecedented Expansion of the Global Gag Rule: Trampling Rights, Health and Free Speech, 23 Guttmacher Pol’y Rev. 13, 17 (2020), https://www.guttmacher.org/sites/default/files/article_files/gpr2301320.pdf.
[24] See id.; see also Sippel & Radhakrishnan, supra note 7.
[25] See Sippel & Radhakrishnan, supra note 7.
[26] See US President-elect Biden plans to rescind 'global gag rule', but damage done will not be easily reversed, Donor Tracker (Nov. 20, 2020), https://donortracker.org/policy-updates/us-president-elect-biden-plans-rescind-global-gag-rule-damage-done-will-not-be; Sippel & Radhakrishnan, supra note 7.
[27] See id.