President Trump Reinstates the Mexico City Policy a.k.a “Global Gag Rule”: Is this constitutional under USAID v. Alliance for Open Society?
By Kendra Brown for BiolawToday.org.
Title X of the Public Health Services Act regulates the reward of grants that can be provided to foreign health providers that provide family planning services.[1] Section 300a-6 provides that “[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.”[2] On Monday, January 23 President Donald Trump issued an Executive Order to reinstate the Mexico City Policy[3] (“Policy”) that “require[s] foreign nongovernmental organizations to agree as a condition of their receipt of Federal funds for family planning activities that such organizations would neither perform nor actively promote abortion as a method of family planning in other nations.”[4]
The Mexico City Policy was first proposed by President Ronald Reagan and officially adopted in 1984. The Policy takes Title X a step further and prevents non-profit organizations and non-governmental organizations from providing counseling regarding abortions, providing referrals to clinics that could provide abortions, or promoting or advocating for safe abortions in foreign countries.[5] This is not just a restriction on foreign entities, but to non-profit and non-governmental organizations within the United States who seek federal grants to provide family planning services in foreign countries—including, but not limited to, the USAID and International Planned Parenthood Foundation (“IPPF”).[6]
Not only did President Donald Trump reinstate the Mexico City Policy, he expanded it:
I direct the Secretary of State, in coordination with the Secretary of Health and Human Services, to the extent allowable by law, to implement a plan to extend the requirements of the reinstated Memorandum to global health assistance furnished by all departments or agencies.[7]
President Donald Trump did not release a statement to explain this expansion and who it would impact.[8] Rather than focusing on organizations that provide family planning services, this applies to all departments and agencies that provide global health assistance. This expansion could mean that “rather than impacting $600 million in U.S. foreign aid, the global gag rule will affect $9.5 billion” of foreign aid. “Geeta Rao Gupta, a senior fellow at the United Nations Foundation who previously served as deputy executive director of UNICEF” explained that organizations that receive U.S. funding to provide antiretrovirals at HIV/AIDS clinics will no longer receive funding “[i]f they’re giving advice to women on what to do if they’re pregnant and HIV positive[—]giving them all the options that exist.”[9]
Since its adoption, Democratic presidents have revoked the policy, and Republican presidents have reinstated it. In 2009, President Barrack Obama revoked President George W. Bush’s Mexico City Policy because the “excessively broad conditions on grants and assistance awards [were] unwarranted . . . [and] undermined efforts to promote safe and effective voluntary family programs in foreign nations.”[10]
In fact, studies have shown that when President George W. Bush reinstated the policy there was a spike an abortions performed in foreign countries. Stanford University’s Department of Medicine “investigated the association between a country’s exposure to the Mexico City Policy and the odds of abortion among women of reproductive age between 1994 and 2008 using the reinstatement of the Mexico City Policy in 2001 as a natural experiment.”[11] “Exposure was defined as the amount of foreign assistance provided to the country for family planning and reproductive health by the United States during years when the policy was not being applied.”[12] This study “found robust empirical patterns suggesting that the Mexico City Policy is associated with increases in abortion rates in sub-Saharan African countries.”[13] Though the study could not draw definitive conclusions as to the cause of this increase, it was reasonable to believe that the “policies curtailing the activities of organizations that provide[d] modern contraceptives [could have] inadvertently lead to an increase in the abortion rate.” In other words, if organizations cannot receive federal funding because they counsel foreign women about abortions, then their clinics close and women who seek access to those clinics can no longer obtain contraceptives or counseling of other preventative measures for unwanted pregnancies. Without contraceptives and other family planning services unwanted pregnancies will most likely increase and the need for abortions will follow.
Not only is the Mexico City Policy and its expansion likely counterproductive to its purpose, it may also be unconstitutional. And there are more U.S. organizations and agencies that provide global health assistance that are now encompassed under this expanded Policy who have standing to challenge its constitutionality.
In 1958, the United States Supreme Court held that the government cannot condition a benefit on the requirement that a person forgo a constitutional right.[14] In 1991, the United States Supreme Court refused to find that Title X imposed an unconstitutional condition on receiving federal funding by prohibiting recipients of federal funds for family-planning services from providing counseling concerning the use of abortion as a method of family planning or provide referral for abortion as a method of family planning.[15] The Court specifically stated:
The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternate program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of another. A legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right.”[16]
In 2013, the United States Supreme Court addressed whether “a requirement that non-governmental organizations institute an explicit anti-prostitution policy in order to receive federal funding violate[s] the First Amendment.”[17] In USAID v. Alliance for Open Society International, the petitioner USAID was “the lead U.S. Government agency that work[ed] to end extreme global poverty and enable resilient, democratic societies to realize their potential.”[18] USAID, among other non-governmental organizations sought to eradicate AIDS and other diseases around the world. The federal government imposed a condition on grant recipients seeking federal funding for the fight against AIDS that required the organizations to adopt a policy that explicitly opposed prostitution and sex trafficking.[19] The government attempted to support this policy by alleging that organizations, “whether using public or private funds, [would] undermine the government’s program and confuse its message opposing prostitution and sex trafficking.”[20]
The United States Supreme Court did not go so far as to overturn Rust, but disagreed with the government and found that the policy required organizations “to pledge allegiance to the Government’s policy of eradicating prostitution” in order to receive funding.[21] The Court found that “[t]he Policy Requirement [was] an ongoing condition on recipients’ speech and activities, a ground for terminating a grant after selection is complete”[22] which “compel[led] as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program.”[23] Therefore, the policy “violat[ed] the First Amendment and [could not] be sustained.”[24]
It may be time for the Court to address whether Rust should be overturned by following the holding in USAID. Though the Mexico City Policy does not require non-profit organizations or non-governmental organizations to expressly adopt a policy against abortion, the Policy has this same effect. The Policy could reasonably be interpreted as requiring an ongoing condition on recipients’ speech activities—prohibiting American organizations and agencies from providing foreign aid for family planning or global health assistance that includes counseling patients about abortions or advocating for abortions in foreign countries—a violation of which is grounds for terminating a grant after selection is complete. This is a restriction on speech. If the organizations discuss abortions, they lose their federal funding. Similar to USAID, in order to receive federal grants to provide foreign aid in all areas of global health, the organizations and the healthcare providers would have to adopt the government’s pro-life policy.
Though the First Amendment provides protection for only Americans, not foreign entities or individuals, American volunteers or employees working for non-profit organizations or NGOs that provide family planning services or global health assistance in foreign countries may have standing to seek legal recourse.
USAID provides family planning services[25] in foreign countries—including, but not limited to: Afghanistan, Rwanda, DRC, Haiti, India, Nepal, and Zambia.[26] In addition, they provide other means of global health assistance—such as, HIV/AIDS prevention and treatment, nutrition, emerging pandemic threats, maternal and child health, etc.[27] The United States President’s Emergency Plan for AIDS Relief (PEPFAR), who “has reached over 1 million adolescent girls and young women with critical comprehensive HIV prevention in high-burden geographic areas to reduce their risk of HIV, help them to know their HIV status, and ultimately prevent HIV”[28] is now prohibited from receiving U.S. funding. “Scott Evertz, who served as director of the White House Office of National AIDS Policy under George W. Bush,” told Slate Magazine that President George W. Bush exempted PEPFAR from the Policy because “[i]t would have been impossible to treat HIV/AIDS in the developing world . . . if the global gag rule were to be applied to the thousands of organizations with which those . . . involved in PEPFAR would be working.”[29]
Another organization that will most likely be affected by this policy is the International Planned Parenthood Foundation (“IPPF”).[30] The IPPF focuses on “ensur[ing] [that] people are free to make choices about their sexuality and well-being, in a world without discrimination.”[31] Sarah Marshall, director of advocacy for IPPF, commented that when President George W. Bush reinstated the policy in 2001, it was “enormously disruptive because [they] faced enormous budget cuts very suddenly. And not just for [their group] but for other nonprofit providers, clinics had to be closed, staff had to be laid off. We just weren’t able to offer the family planning services to the women and girls who needed them.”[32] The same will most likely occur again, but “complying with the terms of the Mexico City policy in order to keep U.S. funding is not an option IPPF would consider” because doing so would prevent them from “telling women and girls when they [go] into [the] clinic what their options are.”[33]
Thus, USAID, IPPF, and REPFAR are but three of many U.S. organizations and agencies that provide global health assistance, as well as those that promote women autonomy and sexual and reproductive health that could have standing to bring another challenge to the constitutionality of President Donald Trump’s reinstatement and expansion of the Mexico City Policy. If this Policy is challenged and catches the attention of the United States Supreme Court, the Court will have to determine whether USAID should have overturned Rust, which would prevent the federal government from prohibiting organizations and agencies that provide global health assistance from providing counseling, referrals, and support for safe abortions in foreign countries in order to receive federal funding.
Kendra Brown is a third year student at the S.J. Quinney College of Law and is Executive Managing Editor of the Utah Law Review as well as the Student Director for the Medical-Legal Clinic. Kendra graduated from the University of Utah in 2009 with a B.A. in History after transferring from Colorado State University. Kendra loves to travel, scuba dive, and play soccer.
[1] 42 U.S.C. § 300 et seq. (West 2012).
[2] 42 U.S.C. § 300a-6.
[3] The Mexico City Policy, 82 Fed. Reg. 8495 (Jan. 23, 2017).
[4] Restoration of the Mexico City Policy, 66 Fed. Reg. 17301 (March 28, 2001) (to be codified at 24 C.F.R. pt. 990).
[5] Id.
[6] Id.
[7] The Mexico City Policy, 82 Fed. Reg. 8495 (Jan. 23, 2017).
[8] Michelle Goldberg, Trump Didn’t Just Reinstate the Global Gag Rule. He Massively Expanded It: It’s the Global Gag Rule “On Steroids.”, Slate (Jan. 24, 2017) http://www.slate.com/articles/news_and_politics/politics/2017/01/trump_s_global_gag_rule_is_even_worse_than_it_seemed.html. (quoting “I had a staff person who tried to call the White House yesterday and was told that the White House telephone lines are down and they aren’t taking calls,” says Debra Hauser, president of Advocates for Youth, a group that champions sex education and sexual health services for young people. “Normally there’s a press release. You can look it up. That was not the case yesterday. Nothing.”).
[9]Id.
[10] Mexico City Policy and Assistance for Voluntary Population Planning, 77 Fed. Reg. 4903 (Jan. 28, 2009).
[11] Eran Bendavid, et al., United States Aid Policy and Induce Abortion in sub-Saharan Africa, Bulletin of the WHO (June 7, 2011) http://www.who.int/bulletin/volumes/89/12/11-091660/en/.
[12] Id.
[13] Id.
[14] Speiser v. Randall, 357 U.S. 513 (1958).
[15] Rust v. Sullivan, 500 U.S. 173 (1991).
[16] Id. at 193 (citation omitted).
[17] Agency for Int’l Dev. v. Alliance for Open Society Int’l, Oyez.org (last visited Jan. 29, 2017) https://www.oyez.org/cases/2012/12-10.
[18] Who We Are, USAID (last visited Jan. 27, 2017) https://www.usaid.gov/who-we-are.
[19] 133 S. Ct. 2321, 2325 (2013).
[20] Id. at 2331.
[21] Id.
[22] Id. at 2330.
[23] Id. at 2331.
[24] Id.
[25] Family Planning and Reproductive Health, USAID (Jan. 27, 2017) https://www.usaid.gov/what-we-do/global-health/family-planning.
[26] Family Planning Countries: USAID FP/RH Priority, Assisted and Graduated Countries (Jan. 27, 2017) https://www.usaid.gov/what-we-do/global-health/family-planning/countries#priority.
[27] What We Do, USAID (last visited Jan. 27, 2017) https://www.usaid.gov/what-we-do/global-health.
[28] Adolescent Girls & Women: Creating Gender Equityhttps://www.pepfar.gov/priorities/girlswomen/index.htm
[29] Michelle Goldberg, Trump Didn’t Just Reinstate the Global Gag Rule. He Massively Expanded It: It’s the Global Gag Rule “On Steroids.”, Slate (Jan. 24, 2017) http://www.slate.com/articles/news_and_politics/politics/2017/01/trump_s_global_gag_rule_is_even_worse_than_it_seemed.html.
[30] IPPF, http://www.ippf.org (last visited Jan. 25, 2017).
[31] Id.
[32] Nurith Aizenman, Will Trump Reinstate Reagan’s Abortion Rule For International Charities?, NPR.org (last visited Jan. 30, 2017) http://www.npr.org/sections/goatsandsoda/2016/12/06/503187530/will-trump-bring-back-the-reagan-rule-about-abortions.
[33] Id.