International Law Demands the U.S. Do Better on Abortion Policy

Within days of assuming office in 2017, President Trump re-instated and expanded the Global Gag Rulewhich restricts funding for international organizations that provide or “promote” abortions. Two years later, feminist lawmakers serving in the now Democratic-led House kicked off their own terms by attempting to roll it back.

Lawmakers should take on Trump’s Global Gag Rule—but they should also look to roll back Congress’ own anti-abortion policies. (Liz Lemon / Creative Commons)

Pending legislation to establish a budget and keep the government open beyond the three week negotiation period includes a provision that would protect NGOs from being categorically defunded, effectively rescinding the Global Gag Rule. The House spending bill would render health and medical services of such organizations, including counseling and referral services, as insufficient for the sole basis for ineligibility for U.S. funding, and allow NGOs to use non-U.S. funding with fewer regulations.

Every Republican president since Ronald Reagan has enacted some version of the Global Gag Rule, but Trump drastically expanded its scope—and magnitude of harm. NGOs receiving U.S. foreign aid are now prohibited from spending any of their funds, including funding from non-U.S. sources, on abortion-related services, referrals, counseling or advocacy. Trump’s iteration of the Global Gag Rule also applies to all U.S. global health assistance, as opposed to previous version which were centered solely on U.S. family planning funds, meaning it affects $8.8 billion of foreign aid rather than $575 million.

Human rights bodies, including the Human Rights Committee, Committee for the Elimination of All Forms of Discrimination against Women and several Special Rapporteurs have recognized that complete bans on abortion access violate women and girls’ rights to life, freedom from torture, health and privacy. That means the U.S. must do more than stop creating barriers to abortion-related services and advocacy, and has a positive obligation to ensure access to abortion in certain circumstances.

But although rescinding the Global Gag is an important first step, Presidential memoranda are not the only barriers to bringing U.S. foreign assistance policy in line with international human rights and humanitarian law. Congress, too, has a unique role to play—and its own anti-abortion policies to confront.

In reaction to the landmark Roe v. Wade decision, Congress adopted the Helms Amendment in 1973, which prohibits NGOs from using U.S. foreign aid to perform abortions—even in cases of rape, incest, fetal impairment and threats to the woman’s life and health. The Siljander Amendment later extended the restrictions to include abortion-related speech and political activity, namely lobbying for or against abortion.

Unlike the Global Gag Rule, the Helms and Siljander amendments technically only apply to U.S. funding. In practice, however, organizations often lack the capacity to maintain separate funds, which means these policies extend to other sources—and hold back women around the world from accessing their legal right to abortion.

Under international humanitarian law, all wounded and sick in armed conflict are entitled to the medical care required by their condition—including rape victims. But under current U.S. policy, women who are raped in armed conflict and become pregnant are unable to access an abortion as necessary medical care. Denying a medical service needed mostly by women, such as abortion, is discrimination, and violates the requirements of international humanitarian law.

In order to comply with international human rights standards, the Helms Amendment must, at minimum, be amended to include exceptions for rape, incest, risk to the pregnant person’s health and fetal unviability or impairment. It must also not be implemented where it causes physical or mental suffering.

The Siljander and Helms Amendments’ restrictions on counseling and referrals also violate the right to free speech and association. Article 19 of the International Covenant on Civil and Political Rights guarantees the right to “seek, receive and impart information and ideas.” States can only limit the right in narrow circumstances where the restriction is clearly established and defined by law, the state has a legitimate reason for imposing the limitation and the state demonstrates that the restriction is necessary and proportionate to achieve that aim. Practice has shown that the law is unclear and confusing for grantees—and that restricting access to safe abortions yields no net decrease in abortions but does cause a significant increase in unsafe abortions.

That lawmakers in the historically diverse and feminist-fueled 116th Congress are willing to tackle barriers to women’s right to abortion access is important. But they must challenge not only the current administration’s attacks on women’s rights, but all policies that violate international human rights and humanitarian law.

The Global Justice Center was founded in 2005 to fill a critical need in the international human rights field. GJC works for peace, justice and security by enforcing international laws that protect human rights and promote gender equality. Their model for justice embraces the tenets that gender parity in power and under the law is essential to global security, justice and prosperity for all; that discriminatory political and legal systems that fail to enforce human rights or ensure equal protection to women must be challenged; and that progressive interpretation and enforcement of international law is a powerful catalyst for social and structural change.

Danielle Hites is the Staff Attorney at the Global Justice Center. She previously worked with the Alliance for Rule of Law Promotion and Alternative Dispute Resolution, the International Justice Resource Center, Lawyers for Human Rights and the Coalition for the International Criminal Court. Danielle received her J.D. with a concentration in international law from Boston University and holds a B.A. in Psychology from Suffolk University.

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