The Global Gag Rule: A Violation of the Right to Free Speech and Democratic Participation

Vol. 29 No. 3

By

Priscilla Smith is the acting director of CRLP’s Domestic Program and an attorney for plaintiffs in CRLP v. Bush . She graduated from Yale Law School in 1991. Kathy Hall Martinez, a plaintiff in CRLP v. Bush, is acting director of CRLP’s International Program and a 1992 graduate of Columbia University School of Law. Tzili Mor is an international legal fellow at CRLP and received her J.D. and M.A. in Foreign Service from Georgetown University Law Center in 2000.

On August 7, 2001, the American Bar Association (ABA) adopted a resolution opposing the global gag rule, also known as the Mexico City Policy (the global gag rule). The global gag rule restricts foreign nongovernmental organizations (FNGOs) that receive U.S. Agency for International Development (USAID) family planning funds from using their own, non-U.S. funds to provide legal abortion services, lobby their own governments for abortion law reform, or even provide accurate medical counseling or referrals regarding abortion. In adopting the resolution, the ABA echoed its position against federal regulations, adopted in 1988, that prohibited certain U.S. federal grant recipients from using federal funds for counseling, referral, and provision of information about abortion, but allowed them to engage in these activities with their own funds. See Rust v. Sullivan 500 U.S. 173, 196 (1991). In the report accompanying its resolution, the ABA objected to the global gag rule because it "imposes government censorship on healthcare professionals," forcing them to give "incomplete advice [which] can be worse than no advice at all," is "inconsistent with free speech guarantees," and is "inconsistent with several U.S. foreign policy goals, including enhancing the status of women within democracies." See ABA Section of Individual Rights and Responsibilities, "Global Gag Rule" Resolution and Report (Aug. 2001).

U.S. Reimposes the Global Gag Rule

On January 22, 2001, on his first business day in office (and the 28th anniversary of Roe v. Wade, the landmark U.S. Supreme Court decision establishing a woman’s right to an abortion), President George W. Bush reimposed the global gag rule on the USAID population program. The Bush global gag rule forbids FNGOs receiving USAID assistance for family planning from using their own, non-U.S. money to "perform or actively promote abortion as a method of family planning in USAID-recipient countries or provide financial support to any other FNGO that conducts such activities." President Reagan first imposed this restriction at the 1984 United Nations Population Conference in Mexico City and it remained in place until President Clinton ended it in 1993. The global gag rule is an additional restriction, separate from the 1973 Foreign Assistance Act (FAA) provision, known as the Helms Amendment, 22 U.S.C.A. § 2151b(f)(1) that already prohibits federal funds from being used for most abortion-related activities.

President Bush’s Executive Memorandum directs USAID "to reinstate in full all of the requirements of the Mexico City Policy in effect on January 19, 1993." The phrase "abortion as a method of family planning" is so broadly defined that it prohibits nearly all abortions, including an explicit ban on all "abortions performed for the physical or mental health of the mother." Also explicitly banned are the following:

(a) Operating a family planning counseling service that includes, as part of the regular program, providing advice and information regarding the benefits and availability of abortion as a method of family planning;

(b) Providing advice that abortion is an available option in the event other methods of family planning are not used or are not successful or encouraging women to consider abortion;

(c) Lobbying a foreign government to legalize or make available abortion as a method of family planning or lobbying such a government to continue the legality of abortion as a method of family planning; and

(d) Conducting a public information campaign in USAID-recipient countries regarding the benefits and/or availability of abortion as a method of family planning.

The global gag rule penalizes FNGOs in the nearly sixty countries that receive family planning assistance from the United States. Depending on the abortion laws in their countries, these FNGOs are prohibited from providing legal abortion-related services, including counseling and referrals, and/or lobbying or speaking publicly on abortion issues:

• In seventeen of the fifty-nine countries that receive U.S. family planning funds, abortion is legal on broad grounds. Under the global gag rule, U.S.-funded FNGOs that either provide abortions or refer or counsel on abortion in these countries with their own funds will no longer be able to do so. Medical care providers must surrender their responsibility to provide and discuss all reproductive health options with their patients or lose funding for desperately needed reproductive health programs.

• In eighteen of the fifty-nine countries that receive U.S. family planning funds, abortion is legal under limited circumstances—to protect a woman’s life and physical health and, in some cases, to protect her mental health and on socioeconomic grounds but it is generally not available. The unavailability of safe and legal abortion services in these countries may be attributable to diverse factors, including a shortage of trained providers, lack of medical facilities, and burdensome regulation of the procedure. Under the global gag rule, FNGOs receiving U.S. family planning funding that might otherwise have offered desperately needed safe abortion services are prevented from doing so.

• In twenty-four of the fifty-nine countries that receive U.S. family planning funds, abortion is prohibited under most circumstances. U.S.-funded FNGOs that want to speak publicly about abortion issues are severely affected. The global gag rule stifles their free speech rights, cripples lobbying efforts to liberalize draconian abortion laws, and censors open and honest political participation and debate.

In addition, even the provision of services that are "permitted" on paper under the global gag rule, such as life-saving abortions and post-abortion care, are often curtailed because FNGOs fear jeopardizing their funding through any association with abortion. Providers may even be reluctant to dispense emergency contraception that acts to prevent pregnancy and is not an abortifacient because of the global gag rule.

The Global Gag Rule Threatens Women’s Health

According to the United Nations, at least twenty million abortions are performed under unsafe, illegal conditions annually and millions of these women require follow-up gynecological care. Seventy-eight thousand of these women die from the procedure each year. These statistics could be virtually eliminated by the provision of appropriate health information and services and abortion law reform efforts. Despite this, the organizations that are best suited to provide comprehensive reproductive healthcare services including abortion in countries where it is legal, have either lost their funding or are prevented from providing these critical, life-saving services. By reducing funding to reproductive healthcare providers in severely underserved areas, the global gag rule has decreased women’s ability to access pregnancy-related care, family planning, and services for HIV/AIDS and other sexually transmitted infections. In Kenya, for example, Marie Stopes International (MSI), a British family planning organization that supports comprehensive reproductive healthcare, including abortion where legal, had to close two clinics serving poor women, and end funding to eighty-seven community-based health workers as a direct result of the GGR. MSI’s Kenya program director stated that these cuts in family planning funding will increase the maternal death rate in Kenya.

The Global Gag Rule Undermines the Right to Free Speech

Regardless of abortion’s legal status, the global gag rule stifles public debate and the ability of FNGOs to lobby their governments on abortion, thus undermining their right to exercise freedom of speech. The U.S. government violates not only the free speech principles so revered in our country, but also those of international human rights instruments that the United States has championed, including the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights (ICCPR), which the United States ratified in 1992, as well as various instruments of the Organization of American States’ human rights system to which the United States is subject. For example, Article 19 of the ICCPR obligates state parties to ensure to everyone "the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers. . . ." Moreover, anti-choice groups that receive U.S. funds are not subject to the gag rule—they can speak freely and advocate for enhanced criminal liability for abortion or for increased restrictions on abortion access. The global gag rule affects advocacy at its very foundation, silencing those with relevant information from voicing their ideas and concerns in ongoing debates concerning abortion.

• In Ethiopia, for example, where women’s groups estimate that unsafe, illegal abortion accounts for 54 percent of direct obstetric deaths, the Ministry of Health and women’s organizations have expressed support for reforming Ethiopia’s restrictive abortion law. The reimposition of the law reform gag has the grave potential to curtail meaningful, balanced public debate that includes input from those organizations receiving USAID funds.

• U.S.-funded NGOs in Russia, where most abortions are legal, cannot meet with governmental officials to discuss their concerns regarding the need to provide more training to providers nor counter conservative efforts to pass a more restrictive abortion law in Russia. When CRLP’s legal advisor for Europe met with Russian FNGOs in July 2001, they were unwilling to discuss abortion or the GGR, for fear of jeopardizing their organizations’ USAID funds.

• Doctors in healthcare organizations receiving U.S. family planning assistance in Bolivia, where abortion is legal to protect a woman’s physical health, cannot discuss this option with a woman whose health is threatened by her pregnancy.

• Healthcare organizations in South Africa cannot engage in public education programs about HIV/AIDS that include the availability of safe and legal abortion as an option for HIV-infected pregnant women.

The impact of the global gag rule, however, is not limited to FNGOs that decide to receive family planning assistance or foreign governments and international agencies that rely on these FNGOs to implement their reproductive health programs. The global gag rule affects domestic NGOs, such as the Center for Reproductive Law and Policy (CRLP), by curtailing their ability to engage in public education, legal advocacy, litigation, legislative reform, and human rights work. The gag on law reform, specifically, dilutes their political effectiveness and blocks essential channels for their advocacy in the United States, in international fora, including the United Nations, and overseas. In CRLP’s case, the global gag rule’s censorship of political speech directly impedes our organizational mission of advocating reform of reproductive health laws worldwide, including abortion laws, in accordance with human rights principles.

CRLP collaborates with lawyers, doctors, professors, parliamentarians, and other professionals in more than thirty-seven countries to educate policymakers about the deadly consequences of criminalizing abortion and to encourage them to reform restrictive abortion laws. The global gag rule prevents CRLP from working with gagged FNGOs in these countries to organize public debates, meetings, or any media events about legalizing or making abortion safe, or to publish or disseminate factual information. For example, when CRLP joined with local FNGOs to publish a political advertisement in the Bolivian daily newspaper, La Razon, urging the Bolivian government to liberalize its abortion laws to protect women’s health and human rights, several influential Bolivian FNGOs subject to the law reform gag were unwilling to associate with CRLP and sign on to the advertisement because of the law reform gag, thus diminishing the advertisement’s credibility and impact.

The Global Gag Rule Undercuts U.S. Foreign Policy

The global gag rule erects barriers to the development of the democratic process in other countries, the promotion of civil society and development of FNGOs abroad, and the enhancement of women’s equality and participation in the political process. The Foreign Assistance Act (FAA), 22 U.S.C.A. § 2304(a)(1), states that "a principal goal of the United States" is to "promote the increased observance of internationally recognized human rights by all countries." Surely this includes the fundamental rights to free speech and democratic participation, internationally protected human rights championed by the United States. Despite the robust public debate on abortion in our own country, the Bush administration is repressing public discourse on abortion in other countries. This amounts to undercutting the bedrock foreign policy principles of encouraging democratic participation and the use of the public forum to resolve divisive issues. United States development assistance has long supported the involvement of FNGOs to resolve development challenges and help create self-sustaining societies. In particular, the FAA requires the United States to support the enhancement of women’s status and democratic participation in civil society. The global gag rule disproportionately impacts women and women’s groups, many of which receive funding from USAID for projects related to reproductive healthcare, maternal and child survival, and voluntary family planning. These groups, as the "front line" of the women’s health movement, observe firsthand the effects of illegal, unsafe abortion and are often called on to participate in their countries’ deliberations about abortion law reform. The United States cannot have it both ways—supporting women with one hand and silencing them with the other.

The global gag rule also impacts international assistance provided by other donors—including Canada and European countries—that cannot collaborate with FNGOs on abortion-related projects if those FNGOs also receive USAID family planning funding. Furthermore, the global gag rule inappropriately challenges foreign governments’ sovereignty by constraining their implementation of national healthcare policies.

CRLP v. Bush

Because of the global gag rule’s impact on the law reform efforts of CRLP’s international human rights lawyers, in June 2001, CRLP and its lawyers sued President Bush, charging that the global gag rule’s prohibition on law reform efforts violates their fundamental constitutional rights under the First and Fifth Amendments to freedom of speech, freedom of political association, due process, and equal protection of the law, as well as customary international law. Despite the evidence of the gag rule’s impact on CRLP’s lawyers, on July 31, 2001, the district court dismissed the case, holding that the plaintiffs—as non-USAID recipients—did not have standing to challenge the law reform gag because "any interruption in the flow of information from FNGOs to CRLP is due to the independent choice of those organizations to accept USAID funding (with its conditions and restrictions) rather than to engage in abortion advocacy activities." CRLP v. Bush, No. 01-4986, 2001 WL 868007 at 9 (S.D.N.Y. July 31, 2001). The court relied mainly on PPFA v. AID, 915 F.2d 59 (2d Cir. 1990), in which the Second Circuit upheld a medical provider’s challenge to the Mexico City policy, and ignored both the significant differences between the claims in the two cases as well as subsequent Supreme Court precedent clarifying the plaintiffs’ burden of proof in cases where the government’s challenged action is directed at someone other than the plaintiff.

On appeal to the U.S. Court of Appeals for the Second Circuit, CRLP argued, inter alia, that the district court wrongly conflated the issues of injury in fact and causation. CRLP alleged that plaintiffs had been injured and would continue to be injured in the future by their inability to collaborate with, freely exchange information with, and establish new audiences and conduits for their political advocacy with FNGOs. The Supreme Court has recognized that the First Amendment protects the qualitative nature of speech and the right to associate for effective advocacy. S ee, e.g., McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) (prohibition against distribution of anonymous campaign literature violated the First Amendment where "most effective advocates have sometimes opted for anonymity"); Meyer v. Grant, 486 U.S. 414, 422-23 (1988) (prohibition against paying circulators of initiative petitions violated the First Amendment both by "limit[ing] the number of voices who will convey appellees’ message . . . and, therefore limit[ing] the size of the audience they can reach," as well as by making it less likely that the appellees would be successful in their effort); NAACP v. Button, 371 U.S. 415, 431 (1963) (First Amendment protects right of NAACP members to associate with attorneys and clients for purposes of litigation because it "may be the most effective form of political association"). Therefore, these allegations establish injury in fact under Lujan v. Defenders of Wildlife, 504 U.S. 555 ( 1992), and Bennett v. Spear, 520 U.S. 154 (1997).

Moreover, in Bennett, decided seven years after the Second Circuit’s decision in PPFA, the Court clarified that "[w]hile, as we have said, it does not suffice if the injury complained of is ‘th[e] result [of] the independent action of some third party not before the court’ . . . that does not exclude injury produced by determinative or coercive effect upon the action of someone else." 520 U.S. at 169. While acknowledging that the plaintiffs had in fact alleged that the law reform gag, as a condition on desperately needed funds, had a determinative or coercive effect on the actions of the FNGOs, the court denied the plaintiffs their opportunity to prove their case. Instead, the court improperly equated the act of accepting the funds with a free and independent choice. CRLP, 2001 WL 868007 at *9. This is tantamount to rejecting a defense of duress on the grounds that the coerced individual "chose to comply" with the coercion.

Finally, the district court failed to consider separately the plaintiffs’ standing to pursue their claim that the law reform gag violates the equal protection component of the Fifth Amendment. This failure compounded the errors of the district court, because the law reform gag is precisely the sort of discriminatory government-imposed barrier to a desired working relationship that gives a plaintiff—even one who cannot demonstrate that the working relationship will ultimately be achieved—standing under equal protection doctrine. The case is currently pending, following argument on March 13, 2002, in the U.S. Court of Appeals for the Second Circuit.

Conclusion

The global gag rule is a violation of U.S. constitutional and international human rights principles that include the rights to free speech and democratic participation. It violates the constitutional rights of U.S.-based NGOs such as CRLP and its lawyers, hampering their ability to effectively collaborate and freely exchange information with organizations abroad. It also is inconsistent with U.S. foreign policy objectives and severely harms women’s reproductive health. United States development assistance has sought to encourage the building of civil societies, the free exchange of ideas, and women’s participation as equals. The U.S. government cannot have it both ways—FNGOs and U.S.-based organizations like CRLP that support making abortion safe and legal should not have their right to speak and advocate cut off by the U.S. government, while U.S.-funded FNGOs fighting to increase restrictions on abortion are free to speak openly. This misguided and hypocritical U.S. policy must be eliminated.

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