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BRIEFING PAPER

www.reproductiverights.org

The Bush Global Gag Rule

A Violation of International Human Rights

On January 22, 2001, President George W. Bush re-imposed a restriction — known as the

“global gag rule” — on funding for international family planning provided through the U.S.

Agency for International Development (USAID) population program. This provision restricts

overseas non-governmental organizations (NGOs) that receive USAID family planning funds

from using their own money to provide abortion services, to advocate for changes in abortion

laws, or even to provide full and accurate medical information about legal abortion services to

their patients. By stifling debate and the ability of foreign NGOs to lobby their governments,

the global gag rule undermines their right to exercise freedom of speech. The global gag rule

also erects barriers to the development of the democratic process in other countries, the pro-

motion of civil society abroad, the enhancement of women’s participation, and the credibility

of the United States in international settings, thus undermining bedrock U.S. foreign policy

objectives. Furthermore, the restriction undermines U.S. commitments to women’s equality

and reproductive rights. The global gag rule would be unconstitutional if directly applied to

U.S.-based NGOs, and therefore creates a hypocritical double standard.

Table of Contents

I. Background 1

II. What Is the Bush Global Gag Rule? 3

A. Prohibited Activities

B. The Bush Global Gag Rule v. the FY 2000 Gag Rule

C. The Impact of the Global Gag Rule

III. The Global Gag Rule Undermines Freedom of Speech 8

A. Punishing Speech on Abortion

B. Violation of U.S. and International Human Rights Principles

IV. The Global Gag Rule Undermines U.S. Foreign Policy 11

A. Undermining U.S. Efforts to Promote Democracy and Freedom Abroad

B. Undermining Women’s Participation in Society

C. Undermining U.S. NGOs and Non-U.S. Government Donors

D. Undermining the Sovereignty of Foreign Governments

E. Undermining U.S. Credibility Abroad

V. The Global Gag Rule Undermines U.S. Commitments to Reproductive Rights 13

A. International Treaties and Conferences Recognizing Reproductive Rights

B. Liberalization of Abortion Laws

C. Harm to Women’s Reproductive Health

VI. The Global Gag Rule Would Be Unconstitutional if Applied to U.S. NGOs Receiving USAID Funds 18

A. Relevant Case Law

B ."Fungibility"

VII. Conclusion 19

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I. Background

The United States has supported international family planning and population assis-

tance since the 1960s. Congress amended the Foreign Assistance Act of 1961 (the

“Foreign Assistance Act”) to authorize the president to provide funding for voluntary

population planning,

stating that “poor health conditions and uncontrolled population

growth can vitiate otherwise successful development efforts.”

The Foreign Assistance

Act aims “to contribute to improvements in the health of the greatest number of poor

people in developing countries.”

In 1973, the Foreign Assistance Act was amended by

a provision, known as the Helms Amendment, prohibiting the use of federal money

“for the performance of abortions as a method of family planning or to motivate or

coerce any person to practice abortions.”

In addition, in 1974, USAID established its

own policy, later codified, that prohibits U.S. funding for “information, education,

training, or communication programs that seek to promote abortion as a method of

family planning.”

In 1984, the Reagan Administration imposed further restrictions on

U.S. funding for international family planning.

The so-called “Mexico City Policy”

—

the predecessor to the current “global gag rule”—prohibited overseas NGOs from

receiving U.S. funds if, with their own funds and in accordance with the laws of their

own countries, they “performed” or “actively promoted” “abortion as a method of fami-

ly planning.”

Further, the Reagan Administration issued extremely restrictive regula-

tions that interpreted the phrase “abortion as a method of family planning” to mean all

abortions, except when performed in cases of rape, incest, or when the life (but not

health) of the woman would be endangered if the fetus were carried to term.

The

Clinton Administration ended the Mexico City Policy in 1993.

Since 1995, Congressional foes of family planning and abortion rights, led by

Representative Chris Smith (R-NJ), have sought to add funding restrictions similar to

the Mexico City Policy to foreign operations appropriations bills and to State

Department reauthorization act. Representative Smith and his allies inappropriately

and unconscionably held payment of U.S. arrears on U.N. dues hostage to versions of

the global gag rule provision by attaching these as riders to the legislation authorizing

payment of the U.N. arrears. President Clinton vetoed this legislation in 1998, but

struck a “deal” in 1999 to accept the restriction in order to ensure payment of U.N.

arrears, in large part because the United States’ ability to vote in the U.N. General

Assembly was at stake. Thus, Representative Smith was finally successful in attaching

these restrictions—a modified version of the global gag rule11—to the fiscal year (FY)

2000 foreign operations appropriations bill that was enacted as part of the consolidated

appropriations act.

This was the first time that Congress acted to make such restric-

tions statutory law (as opposed to the Mexico City Policy, which was an executive

branch policy applied by USAID). The Clinton Administration caved into

Representative Smith’s demands, but vowed that the FY 2000 global gag rule would

only remain in effect for one year and would be eliminated in the FY 2001 appropria-

tions process.

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In practice, once a provision is written into an appropriations bill, which must be

renewed every year, eliminating it in subsequent years has historically proven to be dif-

ficult. However, in the fall of 2000, President Clinton and pro-family planning mem-

bers of Congress largely prevailed by successfully eliminating the global gag rule from

the FY 2001 appropriations legislation. Unfortunately, release of the USAID family

planning funding was delayed until February 15, 2001, allowing the new president (not

yet known) to decide whether to re-impose the global gag rule as an administrative poli-

cy. President Bush did so on January 22, 2001,

his first business day in office (and the

28th anniversary of Roe v. Wade, the landmark U.S. Supreme Court decision establish-

ing a woman’s right to an abortion).

II. What Is the Bush Global Gag Rule?

A. PROHIBITED ACTIVITIES

The Bush global gag rule forbids foreign NGOs receiving USAID assistance for family

planning or reproductive health services from using their own, non-U.S. money to “per-

form or actively promote abortion as a method of family planning in USAID-recipient

countries or provide financial support to any other foreign nongovernmental organiza-

tion that conducts such activities.”

The phrase “abortion as a method of family plan-

ning” 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:

(I) Operating a family planning counseling service that includes, as part of the reg-

ular program, providing advice and information regarding the benefits and avail-

ability of abortion as a method of family planning;

(II) 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 con-

sider abortion…;

(III) 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

(IV) Conducting a public information campaign in USAID-recipient countries

regarding the benefits and/or availability of abortion as a method of family plan-

ning.

Simply put, the global gag rule, with limited exceptions, prohibits foreign NGOs from

using their own funds to provide full and accurate information about all legal medical

options to female patients, perform legal abortions, or lobby their own governments for

abortion law reform. The 1973 Helms Amendment already prohibits U.S. funds from

being used for these activities.

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An estimated 78,000 women die each year all over the world, and millions more are

injured, from unsafe abortions. Such tragedies could be virtually eliminated by the

provision of appropriate health information and services and law reform efforts to

ensure access to safe and legal abortions. The global gag rule infringes upon interna-

tional human rights, such as freedom of speech and participation in the national demo-

cratic process, as well as the rights to health and reproductive self-determination.

Through the global gag rule, the U.S. government not only stifles free speech, but also

affirmatively discriminates against a particular viewpoint that it does not like, setting

dangerous precedent. The global gag rule forces health care organizations to make an

immoral choice: either give up desperately needed funds for family planning and other

reproductive health care services, or give up their right to free speech and to provide

patients with full and accurate medical information.

B. THE BUSH GLOBAL GAG RULE V. THE FY 2000 GAG RULE

The Bush global gag rule differs from the modified version of the global gag rule

imposed on FY 2000 funds in several respects. For example, the Bush policy goes well

beyond the FY 2000 policy by prohibiting overseas groups from counseling pregnant

women on all of their pregnancy options, including safe abortion where it is legal.

Without complete and accurate information, the restriction makes informed decision-

making on the part of a pregnant woman impossible—a situation that is strikingly

unethical.

The imposition of a gag rule on the U.S. domestic family planning pro-

gram was debated by the federal government and throughout the country in the late

1980s and early 1990s. Professional medical associations, including the American

Medical Association, American College of Obstetricians and Gynecologists, and

American Nursing Association, universally opposed this type of restriction as directly

conflicting with the obligations of medical practitioners.

Punishing communication

between female patients and their physicians is tantamount to exporting malpractice.

The American Bar Association (ABA) has also taken a strong stance against any such

domestic gag rule.

The findings of the report accompanying the ABA policy opposing

the domestic gag rule illuminate the threat to medical ethics posed by the global gag

rule:

It is clear that, to one seeking either legal or medical counsel, incomplete advice can

be worse than no advice at all, misleading consumers into believing that they are

receiving all of the information necessary to make informed choices, when in fact the

advice is skewed toward a particular viewpoint. In a doctor’s office, the prohibition

imposed upon the health care professional against supplying complete information

may actually be life-threatening.

Another important distinction between the Bush policy and the FY 2000 policy is that

the Bush global gag rule discriminatorily bans abortion-related advocacy only by pro-

choice organizations, whereas the FY 2000 policy uniformly prohibited abortion-related

lobbying on both sides of the debate. The Bush version bars advocacy aimed at decrim-

inalizing abortions and making them more safe, legal and accessible; groups that

engage in anti-abortion advocacy bear no penalty and receive implicit endorsement

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from the United States government. Punishing the right to freedom of expression and

freedom to petition one’s government—regardless of viewpoint—is antidemocratic.

Removing one side from the debate is hypocritical, and only serves to export President

Bush’s anti-choice stance.

C. THE IMPACT OF THE GLOBAL GAG RULE

Of the 40 to 60 million abortions that take place annually, at least 20 million are per-

formed under unsafe, illegal conditions and up to 50% of these women require follow-

up gynecological care. Millions suffer permanent physical injuries, and at least 78,000

women die. Most of these deaths are preventable, and occur in countries where access

to abortion is highly restricted or illegal altogether. The U.S. government is complicit

in these preventable injuries and deaths due to President Bush’s decision to reinstate

the global gag rule. The following are examples of the impact that the global gag rule

is having around the world.

Nepal: Nepal has one of the highest maternal mortality rates in South Asia: 539

women in 100,000 die from pregnancy-related complications (as compared to 7 in

100,000 in the United States). Half of these deaths are caused by unsafe abortion.

On September 26, 2002, however, the King of Nepal signed a historic law that legal-

ized abortion on broad grounds.

Despite the landmark reform of the abortion law, safe abortion services will remain out

of reach for many women in Nepal, particularly rural and low-income women. The

Bush Administration’s global gag rule will pose an added barrier to ensuring abortion

access. The global gag rule will prevent the organizations that receive U.S. family plan-

ning assistance from providing or advocating for any abortion-related services. These

organizations also will not be able to provide counseling or referrals for women to

obtain abortion services elsewhere. To provide safe abortion services, these organiza-

tions would have to risk bankruptcy and forego U.S. family planning assistance—the

largest source of such foreign aid in Nepal.

Zimbabwe: A major provider of family planning information and services in

Zimbabwe is a recipient of U.S. population funds. The organization’s director privately

expressed concern regarding the high number of unsafe abortions being performed in

Zimbabwe, and indicated he felt that liberalization of Zimbabwe’s abortion laws would

result in fewer abortion-related deaths. Under Zimbabwe law, abortion is available only

when necessitated by a threat to women’s physical health, but abortions are virtually

unavailable without the means to pay. Yet when interviewed for a newspaper article

about the subject, the provider stated that his organization did not support the idea of

legalizing abortion. Although service providers express concern about unsafe abortions

off-the-record, those receiving U.S. funds are publicly gagged, which prevents them

from openly discussing their experiences treating complications of illegal abortion and

testifying to policy makers about whether abortion laws should be changed.

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Bolivia: Abortion is illegal in Bolivia, except when the pregnancy is the result of rape

or incest or when the life of the woman is at stake—a provision acted upon only twice

in the law’s 29-year existence. Consequently, unsafe and illegal abortions are resorted

to by large numbers of Bolivian women, contributing to the highest maternal mortality

rate in Latin America: 390 women in 100,000 die from pregnancy-related complica-

tions (again, as compared to 7 in 100,000 in United States). In an attempt to liberalize

the abortion law, NGOs formed a coalition to lobby the government and raise aware-

ness about this public health crisis. As a result of the global gag rule, several organiza-

tions were forced to end their involvement in the campaign.

One woman dies each day in Bolivia from the complications of an unsafe abortion.

Half of the beds in gynecology wards of State and Social Security hospitals are occu-

pied by women suffering the consequences of unsafe, clandestine abortions.

Reinforcing clandestinity through silence [imposed by compliance with the global gag

rule] would make us accomplices to the continuation of this grave public health and

rights issue, which contributes one third of Bolivia’s unacceptably high maternal mor-

tality rate. – Jaime Miguel Telleria, executive director, CISTAC

CISTAC refused to certify compliance to the FY 2000 global gag rule and lost a quarter

of its $200,000 budget reportedly due to fallout from the global gag rule, thus seriously

compromising its efforts to educate men and women about their sexual and reproduc-

tive health and rights.

Senegal: Under Senegalese law, abortion is permitted only to save a woman’s life.

[T]he Global Gag Rule would mean that many women, particularly adolescents,

could die. Let me tell you about our rural areas. Because jobs can be scarce in the

countryside, many men have to leave their wives to find work…. Many young wives left

behind have become pregnant by other men…. Contraceptive prevalence is extremely

low due to cultural and religious factors, so that is why these unwanted pregnancies

are so high. Once they are pregnant, they are stigmatized and ostracized by the other

villagers. So, many of these desperate young women will inject pomegranate juice into

their vaginas and uteruses to induce abortion. They don’t realize how potent and dan-

gerous the juice is, and they get badly burned inside. Women die as a result. The

“lucky” ones are forced to have hysterectomies.

I think that the Global Gag Rule is short-sighted—created by people sitting in

Washington, DC who cannot see the implications for women in the rest of the world.

If it becomes taboo to talk about abortion, which is legal in our country in some cir-

cumstances but resorted to in unsafe conditions by large numbers of women anyway,

abortion will slip even further underground with disastrous implications for women. –

Codou Bop, executive director, Groupe de recherche femmes et lois au Sénégal

Peru: In Peru, abortion is illegal in most circumstances, unless necessitated by a severe

threat to women’s physical health. Even then it is nearly impossible for low-income

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women to access safe abortion services. NGOs receiving U.S. aid are so afraid of losing

this funding that they avoid all association with abortion. Last fall, the executive direc-

tor of a U.S.-funded women’s rights organization from Peru was invited to Washington,

D.C., to speak with the media and U.S. policy makers on the negative effects of the

global gag rule in her country. However, she would only speak about the policy’s

infringement upon free speech and association, declining to discuss the issue of abor-

tion and its impact on women in Peru. She later revealed she feared that publicly dis-

cussing abortion— even in America, when asked directly in closed meetings with U.S.

government officials—would jeopardize her U.S. funding, which is critical to her orga-

nization’s efforts to provide desperately poor women access to family planning and

other reproductive health information and services.

III. The Global Gag Rule Undermines Freedom of

Speech

The global gag rule undermines the right to freedom of speech—a universal human

right, highly valued and protected in the United States. This policy violates freedom of

expression by preventing overseas reproductive health and advocacy organizations from

speaking out and lobbying their own governments on their own countries’ abortion laws

or policies. The global gag rule censors health-care professionals in overseas family

planning clinics, depriving them of the ability to provide full and accurate information

to their patients.

It prohibits foreign NGOs involved in advocacy and/or health ser-

vice provision from communicating with their governments in order to decriminalize or

improve the safety of and access to abortion,

and prohibits public education cam-

paigns about abortion.

The global gag rule is the epitome of viewpoint-based discrim-

ination, because it does not constrain organizations working to oppose legal, safe and

accessible abortion. The global gag rule also undermines the free speech rights of

human rights advocates.

A. PUNISHING SPEECH ON ABORTION

If a foreign reproductive health organization refuses to compromise its right to freedom

of expression, the organization is denied all U.S. family planning funding. In effect, the

global gag rule holds this basic human right hostage by denying organizations vital

resources for family planning and other reproductive health services. The U.S. govern-

ment has only directly imposed this restriction on foreign organizations, which do not

receive protection under the U.S. Constitution.

Therefore, the global gag rule impos-

es a hypocritical double standard—denying freedom of expression to foreign organiza-

tions while ostensibly not imposing those restraints on U.S. organizations.

Examples of limitations on foreign organizations’ freedom of speech include:

• Lawyers and activists have successfully reformed Nepal’s abortion law—once one

of the world’s harshest. In a country where women die in large numbers from

unsafe abortions and hundreds have been prosecuted and remain in prison for

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The Bush Global Gag Rule

abortion, NGO reproductive health-care providers—many of whom are U.S.-fund-

ed—cannot lobby the government of Nepal to provide safe and accessible abortion

services.

• U.S.-funded NGOs in Russia, where most abortions are legal, cannot meet with gov-

ernmental officials to discuss their concerns regarding the negative health impact of

a proposed restrictive abortion law in Russia.

• Doctors in health-care organizations receiving U.S. family planning assistance in

Bolivia, where abortion is legal to protect a woman’s physical health, cannot inform

a woman whose health is severely compromised by a pregnancy that legal abortion

is an available option. In addition, doctors cannot refer women needing assistance

to clinics where safe abortion procedures are available to prevent severe health con-

sequences.

• Health-care organizations in South Africa cannot engage in public education pro-

grams about HIV/AIDS that include the availability of safe and legal abortion as an

option for HIV-infected pregnant women.

However, anti-choice groups are not gagged under this one-sided policy, and are free to

lobby their governments to make abortion laws more severe, and even criminal, while

receiving U.S. aid.

B. VIOLATION OF U.S. AND INTERNATIONAL HUMAN RIGHTS PRINCIPLES

Freedom of speech is cherished as one of the cornerstones of democracy—a fundamental

liberty essential to the responsible exercise of U.S. citizenship. Moreover, through its for-

eign policy, the United States has a long history of protecting the right of individuals and

groups to speak freely and to participate in their countries’ democratic processes. By

imposing the global gag rule, the United States government violates basic principles

ensconsed in international human rights instruments, including the Universal Declaration

on Human Rights and the International Convention on Civil and Political Rights, as well

as various instruments of the inter-American system.

Freedom of speech and democratic participation are protected in the First Amendment to

the U.S. Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom of speech, or of the press; or the right of

the people peaceably to assemble, and to petition the Government for a redress of

grievances.

With strong leadership by the United States, the right to free speech is also enshrined in

numerous, widely accepted international human rights instruments.

For example, the

Universal Declaration, drafted in part by U.S. delegate Eleanor Roosevelt and adopted by

the United Nations in 1948, proclaims the human right to freedom of speech and democ-

ratic participation:

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[T]he advent of a world in which human beings shall enjoy freedom of speech and

belief and freedom from fear and want has been proclaimed as the highest aspira-

tion of the common people…

Everyone has the right to freedom of opinion and expression; this right includes free-

dom to hold opinions without interference and to seek, receive and impart infor-

mation and ideas through any media and regardless of frontiers.

Everyone has the right to take part in the government of his country, directly or

through freely chosen representatives.

Additionally, the United States and 145 other countries, have ratified the International

Covenant on Civil and Political Rights (Civil and Political Rights Covenant)

that says:

Everyone shall have the right to hold opinions without interference... Everyone shall

have the right to freedom of expression; this right shall include the freedom to seek,

receive and impart information and ideas of all kinds, regardless of frontiers, either

orally, in writing or in print...

Under particular pressure from the United States, the inter-American system has a long

history of protecting the right of individuals and groups to speak freely and to partici-

pate in their countries’ democratic processes. These rights have been enshrined in

human rights instruments such as the American Convention on Human Rights;

the

American Declaration of the Rights and Duties of Man;

and the Inter-American

Declaration of Principles on Freedom of Expression.

The global gag rule violates sev-

eral basic principles articulated in those documents, such as the right to seek, receive

and impart information and the right to freedom of expression.

During the recent

Summit of the Americas, member nations agreed in the Summit’s Plan of Action to

“[c]ontinue to support the work of the inter-American human rights system in the area

of freedom of expression through the Special Rapporteur for Freedom of Expression of

the IACHR [Inter-American Commission on Human Rights] … and seek to ensure

that national legislation on freedom of expression is consistent with international legal

obligations.”

The U.S. government agreed to this principle and should reverse the

violations of freedom of expression caused by the global gag rule.

President Bush is turning back the clock on women and organizations promoting

women’s health through restrictions set forth in the global gag rule. Mr. Bush is

attempting to dictate speech on abortion law reform in low-income countries, such that

the only permissible governmental response to abortion is punishment, and even incar-

ceration. The global gag rule violates the letter and spirit of vital human rights docu-

ments by preventing overseas organizations, that depend upon U.S. funds to provide

desperately needed reproductive health-care services, from exercising their internation-

ally recognized right to express opinions. It denies reproductive health organizations

the right to simply talk about abortion to patients and to participate in their nations’

public policy discussions, including debate about legal and policy reforms. The global

gag rule is a clear violation of the international human right to freedom of expression,

and the United States should be held accountable for this imposition of censorship.

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IV. The Global Gag Rule Undermines U.S. Foreign

Policy

A. UNDERMINING U.S. EFFORTS TO PROMOTE DEMOCRACY AND FREEDOM ABROAD

The global gag rule conflicts with primary U.S. foreign policy goals—the promotion of

democratic participation, the building of civil society, and the enhancement of the sta-

tus of women within democracies. A principal objective of U.S. foreign policy is to

assist “developing countries in their efforts to acquire the knowledge and resources

essential to development and to build the economic, political, and social institutions,

which will improve the quality of their lives.”

A number of legislative initiatives have

specifically furthered this goal. These include, in particular, legislative provisions in

which Congress has expressed its preference for the furtherance of development goals

through the private sector

and through “activities planned and carried out by private

and voluntary organizations and cooperatives.”

As USAID has articulated in implementing this congressional mandate, the “creation

and involvement of indigenous NGOs—intermediary organizations that enhance popu-

lar participation that deepen the benefits to society, and whose very existence can pro-

mote peaceful change,” is essential to the resolution of development problems and the

creation of self-sustaining, civic societies.

Thus, empowering overseas NGOs to par-

ticipate freely in their societies to foster democracy is clearly a central tenet of U.S. for-

eign policy. However, the global gag rule financially penalizes NGOs that participate

in the democratic process with their own funds on issues related to abortion.

In the United States, abortion sparks a great deal of political debate. However,

President Bush is arrogantly repressing public discourse on abortion in other coun-

tries—blatantly promoting only one side of the debate. On other issues, the United

States encourages citizens of other countries to engage in public debate and to resolve

their differences through the democratic political process. It is unwise to reverse this

foreign policy of encouraging democratic participation and to prohibit citizens from

utilizing the public forum to resolve such divisive issues.

B. UNDERMINING WOMEN’S PARTICIPATION IN SOCIETY

Through foreign assistance, the United States has helped improve the status of women,

including their role as participants in democratic decision-making. Numerous provi-

sions of U.S. foreign assistance legislation, including those which set forth the principle

purpose of bilateral development assistance, require the United States to support the

enhancement of women’s status and participation in civil society.

In 1974, USAID

established the Women in Development office “to help ensure that women participate

fully, and benefit equally, from U.S. overseas development assistance.”

USAID

announced the Women’s Legal Rights Initiative at the Fourth World Conference on

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Women in Beijing, China, in 1995 and emphasized the need to ensure women’s legal

status and promote their participation in social and economic life.

The global gag rule disproportionately impacts women’s groups, many of which receive

funding from USAID for projects related to reproductive health care, 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 upon to participate in their countries’ deliberations about abortion law

reform. If the United States is committed to decreasing women’s marginalization, it

should eliminate the global gag rule, which undermines women’s rights to reproductive

self-determination and to question their countries’ abortion laws. The United States

cannot have it both ways—supporting women with one hand and silencing them with

the other. It is imperialistic and hypocritical for the United States, a country where

women have the right to obtain information about safe, legal abortion in most circum-

stances, to “gag” women and women’s organizations abroad.

C. UNDERMINING U.S. NGOS AND NON-U.S. GOVERNMENT DONORS

USAID international family planning programs are often undertaken through U.S.-

based NGOs, which build partnerships and programs with local NGOs overseas. The

trust and teamwork necessary for effective partnership is built gradually over years of

working together. However, the double standard created by the global gag rule regard-

ing U.S.-based NGOs—which are not directly implicated by the global gag rule—and

overseas NGOs—which are directly implicated—results in unequal and unfair treat-

ment and is likely to lead to resentment by overseas NGOs. This is especially true

because the U.S.-based NGOs are being required under the global gag rule to assist in

its enforcement by requesting foreign NGOs to agree to contractual provisions giving

up their right to engage in certain abortion-related activities.

The global gag rule also impacts international assistance provided by other donor coun-

tries (e.g., the European Union countries, many of which have publicly opposed the

global gag rule

), UN agencies, and foundations and other private funders. For exam-

ple, foreign NGOs may be deterred from undertaking programs to provide legal abor-

tion services or to lobby their governments to make legal abortions safer—programs that

would have been sponsored by such funders—so that the NGOs do not jeopardize their

USAID family planning funding. Furthermore, U.S.-based NGOs that receive USAID

funding for international family planning and work with foreign NGOs may have prob-

lems seeking matching funds from other donors for these programs, as those donors

may resist having their grants “federalized,” i.e., subjected, in effect, to the global gag

rule.

D. UNDERMINING THE SOVEREIGNTY OF FOREIGN GOVERNMENTS

U.S. policy makers have long recognized, with respect to aid to foreign governments,

that sovereign countries are entitled to spend non-U.S. funds on abortion-related activi-

ties. It would be folly for the United States to cease funding family planning activities

in a particular country based on that government’s abortion views.

However, the

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national reproductive health policies of foreign governments within their own borders

could be compromised by the global gag rule. Foreign governments are not able to col-

laborate with their own domestic NGOs on abortion-related projects, because the

NGOs have been required by the U.S. government to give up their right to do so.

Furthermore, the global gag rule will prevent NGOs from carrying out their govern-

ments’ public policy decisions in countries where governments have determined that

abortions should be legal, safe and accessible. This U.S. interference with the repro-

ductive health policy decisions of foreign countries is an infringement of their national

sovereignty and directly contravenes international legal principles.

E. UNDERMINING U.S. CREDIBILITY ABROAD

The global gag rule causes foreign NGOs, and others, in foreign countries to scorn the

United States for imposing restrictions on their right to democratic participation, free

speech and reproductive self-determination.

Foreign women’s groups are ostracizing

foreign NGOs who cave in to USAID’s global gag rule requirement in order to obtain

funding. The global gag rule only serves to foster anti-American sentiments, particular-

ly related to U.S. foreign assistance programs around the world. A heightened anti-U.S.

climate around the world only hampers the ability of the U.S. government to maintain

its leadership role in international settings.

V. The Global Gag Rule Undermines U.S.

Commitments to Reproductive Rights

The global gag rule violates the right to health, including reproductive health, the right

freely and responsibly to determine the number and spacing of one’s children, and the

right to reproductive self-determination. The global gag rule’s restrictions on access to

health care and family planning stand in sharp contrast to long-standing U.S. policy at

home and abroad. The United States has a proud history of promoting women’s repro-

ductive health, as well as the right to freedom of speech and democratic participation.

Strong leadership by the U.S. government has ensured the inclusion of these principles

in numerous, widely accepted international human rights instruments.

A. INTERNATIONAL TREATIES AND CONFERENCES RECOGNIZING REPRODUCTIVE RIGHTS

Reproductive rights derive from the right to health, including family planning, and the

right to reproductive self-determination. Various treaties establish reproductive rights as

human rights under international law.

For example, women’s rights to health and

family planning are addressed in the 1979 Convention on the Elimination of All Forms

of Discrimination Against Women, which has been signed by the United States and rat-

ified by more than 165 countries.

Documents adopted at recent UN conferences also

reaffirm women’s reproductive rights, and although they are not binding under interna-

tional law, they embody globally accepted norms and standards, as well as customary

international law. These conferences include the International Conference on

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Population and Development in Cairo in 1994,

the Beijing Conference,

and their

five-year reviews.

The global gag rule violates several internationally recognized principles regarding

reproductive health, family planning and unsafe abortion articulated during these inter-

national conferences. For example, it restrains the ability of overseas NGOs to “deal

with the health impact of unsafe abortion as a major public health concern,”

since

overseas NGOs receiving USAID funds are prohibited from lobbying their governments

to alter abortion laws to reduce unsafe abortion and to make legal abortion safer. By

gagging organizations with the greatest expertise on reproductive health from participat-

ing in dialogue concerning abortion legislation and policy, the global gag rule severely

diminishes the likelihood that women in the countries, in which USAID provides fund-

ing, will have access to safe, legal abortion.

The international pledge to ensure the provision of “[p]ost-abortion counseling, educa-

tion and family planning services ... promptly, which will also help to avoid repeat abor-

tions,”

is also inhibited, because the global gag rule mandates the segregation of abor-

tion services from family planning services. The global gag rule restrains overseas

NGOs’ ability to “reduce the recourse to abortion through expanded and improved

family planning services,”

because it forces a separation of family planning services

from abortion services, thus denying family planning services to women who have

unwanted pregnancies.

The international agreements also provide that where abortion is legal, “health systems

should train and equip health service providers and should take other measures to

ensure that such abortion is safe and accessible. Additional measures should be taken

to safeguard women’s health.”

The global gag rule undermines efforts to make legal

abortion more accessible and undermines training of health providers by restricting for-

eign NGOs from using their own funds to implement these mandates. Therefore, col-

laboration between foreign governments and foreign NGOs to implement these man-

dates is less likely. Several international documents also recommend that governments

should review abortion laws penalizing women.

The global gag rule contravenes this

provision by prohibiting organizations from working to decriminalize abortion and

allowing U.S. assistance to organizations working to incarcerate women who have abor-

tions.

The global gag rule also contravenes the precept that “[a]ny measures or changes relat-

ed to abortion within the health system can only be determined at the national or local

level according to the national legislative process.”

The United States is shackling the

national legislative process of foreign governments by prohibiting the democratic partic-

ipation of local NGOs and by depriving national legislators the expertise of the local

NGOs regarding remedying unsafe abortion.

The U.S. government was among the most ardent proponents of strong reproductive

rights language at these international conferences, and since has articulated its commit-

ment to incorporate these principles into U.S. foreign policy.

The consensus of the

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The Bush Global Gag Rule

community of nations has affirmed that reproductive rights are human rights. The

global gag rule directly conflicts with commitments agreed to by the U.S. government.

The United States’ restrictions on foreign aid for family planning and reproductive

health undermine the leadership role the United States assumed at these international

conferences. The grave implications of the global gag rule for the lives and health of

women and children further damage the credibility of the United States in its interna-

tional commitments.

B. LIBERALIZATION OF ABORTION LAWS

With increasing international recognition of women’s reproductive rights, draconian

prohibitions on abortion have given way in many countries to more humane laws and

regulations permitting abortion in cases of rape, incest, or endangerment of the life or

health of the woman, and on broad socioeconomic grounds. In countries that are

home to or representing 62% of the world’s population,

women are legally permitted

to have an abortion in most circumstances. Since 1985, numerous countries that

receive U.S. international family planning assistance have chosen to liberalize their

abortion laws, including Albania, Botswana, Cambodia, Ghana, Nepal, Romania, and

South Africa.

The global gag rule’s restriction on lobbying and advocacy has a significant negative

impact on abortion law reform movements in countries that receive USAID assistance.

Movements to ease restrictive abortion laws may be curtailed by the gag rule, as med-

ical care providers, advocates and their potential coalition partners fall silent on abor-

tion in order to maintain funding for reproductive health services. By tying the hands

of abortion-rights supporters, the gag rule bolsters ultraconservative, anti-choice move-

ments working to restrict the more liberal abortion laws already established in some

countries. In El Salvador in 1998, right-wing lawmakers succeeded in eliminating all

grounds for abortion—even where pregnancy may cause a women to die as a result—

and passing a damaging constitutional amendment.

In the following USAID-recipient countries, abortion has recently been or may become

the subject of legislative activity. In many cases, the proponents of reform are repro-

ductive health providers from the medical community—one of the sectors most likely

to be affected by the gag rule. The United States, through the global gag rule, restricts

U.S.-funded providers from participating in public discussions about their governments’

abortion policies. This prohibition on foreign NGOs’ participation in their countries’

democratic process is antithetical to U.S. efforts to promote democracy and free speech

worldwide.

Ethiopia: Ethiopia is currently considering a new draft penal code that would expand

the grounds for legal abortion to include rape and incest. The current code permits

abortion only to protect a woman’s life and health. The Ethiopian Women Lawyers

Association has played an active role in this reform effort by organizing a coalition and

issuing statements in favor of liberalizing the law on abortion.

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Indonesia: The Indonesian government has acted to develop a proposal to reform

Indonesia’s restrictive abortion law. The Ministry of Health is inclined to permit abor-

tion in cases of rape, incest and contraceptive failure.

This would considerably liber-

alize the current law, which permits abortion only when a woman’s life is in danger.

Kenya: In September 1999, the Ministry of Health made a statement endorsing liberal-

ization of the abortion law, which permits abortion only when the woman’s life is in

danger. The Kenya Chapter of the International Federation of Women Lawyers (FIDA-

Kenya) was quick to follow up with advocacy in support of that recommendation.

More recently, members of the medical community have come forward to advocate for

a relaxation of Kenya’s restrictive law.

Moldova: Like other former Soviet republics, Moldova is debating a draft law to replace

the liberal abortion law in force under Soviet rule. While it appears that there is strong

support for the new legislation, which closely resembles the current law, there is a vocal

conservative lobby urging that access to abortion be restricted.

Nicaragua: In 2001, the Nicaraguan Parliament considered legislation that would

eliminate all therapeutic exceptions to the law on abortion, including the exception to

save a woman’s life (a measure similar to that adopted in El Salvador in 1998).

Women’s groups organized to defend the current abortion law.

Philippines: In October 1999, a group of legislators proposed a law to make abortion

legal in the Philippines under certain circumstances.

While Filipino women’s groups,

health organizations and human rights groups support reform of the country’s abortion

ban,

the 1999 bill faced virulent opposition from the Catholic Church and was reject-

ed by lawmakers.

Uganda: At a conference in Uganda in May 2001, medical providers debated whether

the country’s restrictive abortion law should be liberalized. While the majority opposed

liberalization, a number of doctors spoke out in favor of it.

Zimbabwe: In response to the high numbers of maternal deaths attributable to unsafe

abortion in Zimbabwe, women’s activists and health experts have called for review of

the country’s restrictive abortion law. While these efforts have had little support from

government officials, the Ministry of Health and Child Welfare is in the process of

implementing programs to provide post-abortion care at all health centers.

In addition to reflecting the consensus reached in Cairo and Beijing,

the general

trend toward liberalization reflects political pressure through the democratic process,

which has allowed more civil society organizations—particularly women’s groups—to

gain political voice. As in the United States, women’s increasing political and econom-

ic roles in civil society have been an important force in the liberalization of abortion

laws. Although there has been a global trend toward the liberalization of national laws

regulating abortion, in many countries abortion remains a hotly contested issue. Efforts

to restrict access to abortion are active in parts of the world, and such efforts have met

with success in Chile, El Salvador and Poland during the last decade. The global gag

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The Bush Global Gag Rule

rule can only serve to bolster the rhetoric of anti-choice groups active internationally,

many of which are either U.S.-based or financed by U.S. groups.

The global gag rule

gives the impression that providing legal abortions is inappropriate, even though abor-

tion is a constitutionally protected right in the United States, and access to safe and

legal abortion is recognized by many national governments as fundamental to preserv-

ing women’s reproductive autonomy as well as their health.

C. HARM TO WOMEN’S REPRODUCTIVE HEALTH

Organizations that are well suited to provide comprehensive reproductive health care

services, including abortion in countries where it is legal, will lose their funding or be

frozen out of seeking U.S. aid. By reducing funding to such providers in under-served

areas, the global gag rule will decrease women’s ability to access pregnancy-related

care, family planning, and services for HIV/AIDS and other sexually transmissible

infections. Cuts in family planning funding mean higher rates of unintended pregnan-

cy and abortion.

The global gag rule also undermines the international consensus on reproductive rights

by compromising access to reproductive health-care services—including legal and safe

abortion—in various countries. In 33 of the 56 countries (59%) that receive U.S. aid,

abortion is legal on grounds broader than just to save the pregnant woman’s life: either

to preserve the woman’s health, for socioeconomic reasons, in cases of fetal impair-

ment, or without restriction as to reason.

Under the global gag rule, U.S.-funded

NGOs that either provide abortions or refer or counsel on abortion in these countries

where it is legal will no longer be able to do so. Medical care providers must surrender

their ability to provide and discuss all reproductive health options with their patients or

lose funding for desperately needed reproductive health programs. Since women faced

with an unwanted pregnancy often decide to terminate it regardless of the availability of

safe services, many will resort to unskilled providers or self-induce, resulting in severe

consequences for women’s lives and health.

The global gag rule is also likely to have a chilling effect on legal abortion-related activ-

ities that are technically “permitted” under the global gag rule, as occurred when the

former Mexico City Policy was in effect.

In other words, women seeking abortions

that are exceptions under the global gag rule (e.g., if they have been victims of rape or

incest, or if their life is endangered by the pregnancy) may be turned away because of

misinterpretation of the global gag rule. In addition, the provision of post-abortion

care—which is explicitly allowed—such as treatment for illness or injury due to unsafe

abortions, is being curtailed because entities fear jeopardizing their funding through

any association with abortion. The equipment for providing post-abortion care is the

same as that used for early abortion services, and organizations are afraid of having their

funding terminated if they even have such equipment available for their health care

providers. Center for Reproductive Rights attorneys have heard reports from local

NGOs that in Bolivia, the Ministry of Health—which technically is not even covered

by the global gag rule—has indicated that it will no longer endorse life-saving care for

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women suffering complications from illegal, unsafe abortions as a direct result of the

global gag rule.

Health-care providers also may be reluctant to dispense emergency

contraception—which acts to prevent pregnancy and is not an abortifacient—because

of the global gag rule. The Bolivian NGOs reported that their government suspended

efforts to permit distribution of emergency contraception because of the global gag

rule.

The result of the global gag rule will be increased numbers of unwanted preg-

nancies and still more desperate women turning to illegal, dangerous abortions.

VI. The Global Gag Rule Would Be Unconstitutional if

Applied to U.S. NGOs Receiving USAID Funds

A. RELEVANT CASE LAW

Although it is constitutionally permissible for the U.S. government to restrict how a

U.S.-based organization spends U.S. government funds, the Constitution does not per-

mit the legislature to impinge upon that organization’s constitutional interests—includ-

ing the right to free speech and association—by rest ricting how a grantee spends segre-

gated funds received from other, non-U.S. government sources.

It is unconstitutional

for the federal government to prohibit U.S.-based NGOs from using their own, private

funds to exercise their constitutional right to free speech and to lobby in order to be eli-

gible for federal funding.

Additionally, a funding policy may be found unconstitution-

al if it discriminates among various viewpoints.

While the Court held in Rust v.

Sullivan that the government may prohibit health workers from providing abortion

information or referrals within the context of a Title X project, the regulations at issue

in Rust would likely have been impermissible abridgments of the grantees’ freedom of

speech if they had barred recipients of government funds from freely providing infor-

mation and counseling about abortion with wholly private funds outside the govern-

ment-funded program.

With respect to federal funds for family planning, two lower courts have held that pro-

hibitions on abortion counseling, referrals or services as requirements for eligibility for

such funds are unconstitutional. The court in Planned Parenthood v. Kempiners held

that a statute prohibiting health care providers from engaging in abortion counseling or

referrals from receiving grants under another state program was unconstitutional.

Similarly, the court in Planned Parenthood of Central and Northern Arizona v. Arizona

struck down a state statute that denied federal and state funding to family planning

organizations that performed or promoted abortion, stating that the statute constituted

“a penalty designed to chill the constitutional rights to provide abortions” and was

therefore an unconstitutional condition.

Although the state could require the segrega-

tion of funds to ensure that the restrictions applied to the state funds, the court held

that the state could not restrict non-governmental funds from being used for constitu-

tionally protected activities such as abortion related services.

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The global gag rule creates a clear double standard by restricting overseas grantees from

spending their own, non-U.S. funds for abortion-related speech and other activities.

Although the courts have stated that the constitutional protections guaranteed to domestic

NGOs do not apply equally to foreign NGOs,

as a matter of policy, U.S. legislators

should extend to overseas NGOs and multilateral organizations the same principles of

freedom of speech and association that apply under the U.S. Constitution to U.S.-based

NGOs.

In a 1989 case challenging USAID policies implementing the Mexico City Policy, DKT

Memorial Fund v. the Agency for International Development,

100

a 2 to 1 majority of the

Court of Appeals for the District of Columbia held that overseas NGOs were not protect-

ed by the First Amendment and thus could not challenge the USAID

policies.

101

However, then-D.C. Circuit Judge Ruth Bader Ginsburg, in her dissent, found

it troubling that accommodation for non-U.S. funding of abortion-related activities was

granted to U.S.-based NGOs under the First Amendment, but that overseas NGOs were left

“no accommodation, no tolerance for what the organization would elect to do with other

resources available to it.”

102

Criticizing her colleagues’ characterization of the decision of

overseas NGOs to accept U.S. funds for non-abortion related family planning activities as

voluntary, she stated, “I would not so characterize the hard decision confronting foreign

NGOs operating in communities with poverty so dire and conditions for women so low we

cannot comprehend their situation.”

103

Justice Ginsburg articulated important principles

that warrant rejection of the global gag rule:

If our land is one “of freedom, of equal opportunity, of religious tolerance, and of good will

for other peoples who share our aspirations,” it is in no small measure so because our

Constitution restrains all officialdom from infringing on fundamental human rights; just as

our flag “carries its message ... both at home and abroad,” so does our Constitution and the

values it expresses.

104

B. “FUNGIBILITY”

Proponents of the global gag rule have argued that it is necessary to prevent overseas NGOs

and multilateral organizations from taking U.S. funds, because that would “free up” their

own funds for abortion-related activities; in other words, that “all money is fungible.”

105

This argument has been specifically rejected in federal cases with respect to providers of

abortion services in the United States.

106

In Planned Parenthood of Central and Northern

Arizona v. Arizona, the Ninth Circuit Court of Appeals held that, for the purposes of pre-

venting the use of state funds for abortion-related activities, the state could only require that

Planned Parenthood monitor and adequately segregate state funds from funds used for abor-

tion-related services.

107

Similarly, the global gag rule applies a double standard to foreign

reproductive health organizations. President Bush, himself, has discredited the fungibility

argument by insisting that faith-based organizations will be able to keep U.S. funds for social

service work segregated from other funds used for religious activities. He should apply the

same logic to health care organizations.

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VII. Conclusion

The global gag rule blocks U.S. funds appropriated for international family planning and

reproductive health programs from being made available to any foreign organization that,

with its own funds, provides legal abortion services or engages in abortion-related lobbying.

This restriction is inconsistent with international and U.S. legal principles that include the

rights to free speech, democratic participation, and reproductive autonomy. The global gag

rule also undermines U.S. foreign policy objectives that encourage the building of democ-

racy, civil society, and women’s participation as equals in society. It runs counter to the

U.S. commitment to women’s reproductive rights and health. It would be unconstitutional

if applied directly to organizations in the United States that receive federal funding. For

the reasons articulated in this paper,

the Center for Reproductive Rights urges the U.S.

Congress and the Bush administration to eliminate the global gag rule.

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Endnotes

22 U.S.C.A. § 2151b(b) (West 1990).

22 U.S.C.A. § 2151b(a).

22 U.S.C.A. § 2151(c)(1).

22 U.S.C.A. § 2151b(f)(1). Due to the Helms

Amendment, U.S. Agency for International

Development (USAID) population assistance

funds may not be used “to pay for the perfor-

mance of abortions as a method of family plan-

ning.”

Id. Furthermore, although USAID and its

grantees are legally permitted to provide funding

for abortion in cases of rape, incest, or where the

life of the woman would be endangered if the

pregnancy were carried to term, U.S. government

officials have asserted that USAID currently does

not knowingly provide any funding for abortion

services.

See, e.g., Statement to the Washington

Foreign Press Center by Julia Taft, Assistant

Secretary of State for Population, Refugees and

Migration, January 21, 1999 (on file with Center

for Reproductive Rights).

5 Family Planning and Population Assistance

Activities, 48 C.F.R. § 752.7016(b) (1996);

see

also

U.S. AGENCY FOR INTERNATIONAL

DEVELOPMENT (USAID), POLICY

DETERMINATION NO.56, A.I.D. POLICIES

RELATIVE TO ABORTION-RELATED ACTIVITIES 2

(1974).

Policy Statement of the United States of America

at the United Nations International Conference on

Population

, 2d Sess., Mexico City (Aug 6-13,

1984) (on file with Center for Reproductive

Rights) [hereinafter

Mexico City Policy

Statement

The name derives from the fact that the policy

was announced at the 1984 United Nations

International Conference on Population in

Mexico City.

8 M

EXICO CITY POLICY STATEMENT, supra note 6.

The phrase “actively promote abortion” was

defined to mean a “substantial or continuing

effort to increase the availability or use of abor-

tion as a method of family planning,” including

“providing advice and information regarding the

benefits and availability of abortion as a method

of family planning” and “[p]roviding advice that

abortion is an available option” to a woman in a

clinical context if she is not pregnant or has not

already decided to have an abortion and stated

her intention to do so. JOHN BLANE &

ATTHEW FRIEDMAN, MEXICO CITY POLICY

IMPLEMENTATION STUDY, app., at A-4, A-6

(Population Technical Assistance Project

Occasional Paper No. 5, 1990) [hereinafter

Mexico City Policy Implementation Study]; but

see Alan Guttmacher Institute v. McPherson, 616

F.Supp. 195, 206 (S.D.N.Y. 1985), aff’d as modi-

fied, 805 F.2d 1088 (2d Cir. 1986) (interpreting

similarly worded USAID regulations as permitting

“neutral, informational” articles about abortion).

9 M

EXICO CITY POLICY IMPLEMENTATION STUDY,

supra note 8, at A-4.

10 Memorandum on the M

EXICO CITY POLICY, 29

EEKLY COMP. PRES. Doc. 88 (Jan 22, 1993).

11 The Fiscal Year (FY) 2000 gag rule prohibited

foreign NGOs from using their own funds to

“perform abortions in any foreign country, except

where the life of the mother would be endan-

gered if the pregnancy were carried to term or in

cases of forcible rape or incest.” Consolidated

Appropriations Act, 2000, § 1001(a)(2) (P.L. 106-

113), enacting Foreign Operations, Export

Financing, and Related Programs Appropriations

Act, 2000, § 599D [hereinafter Foreign

Operations Appropriations Act], § 599D(b)(1). It

also disqualified foreign NGOs if they used their

own, non-U.S. money to “engage in activities or

efforts to alter the laws or governmental policies

of any foreign country concerning the circum-

stances under which abortion is permitted, regu-

lated, or prohibited.”

Id. at 599D(b)(2).

Additionally, the FY 2000 gag rule contained a

procedural mechanism that allowed for a waiver

of the “gag” restrictions on a small portion ($15

million, or about 4%) of USAID population pro-

gram funding, but doing so resulted in a $12.5

million reduction in the total amount of these

funds.

Id. at § 599D(c)(2)(a). In determining

which grants to organizations would be counted

toward the $15 million cap, USAID was com-

pelled to create a “blacklist” of organizations that

refused to give up their right to be involved with

legal abortion-related activities with their own,

non-U.S. funds. The “blacklist” not only invaded

foreign NGOs’ privacy in terms of how they

spend their own money, but could possibly be

obtained and used by anti-choice extremists for

purposes of harassment – or worse – against

women’s rights and health advocates, health care

providers and their families, and women who

obtain health care services at facilities on the

“blacklist.” The U.S. government could effective-

ly become an accomplice to such activities by

providing a road map to extremists for their tar-

gets. This certification process also compelled

USAID and NGOs to expend resources in over-

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seeing this requirement, thus diverting those

resources away from the provision of family plan-

ning services.

Foreign Operations Appropriations Act, supra

note 11, § 599D.

Copy of the January 22, 2001, Presidential

Memorandum on file with Center for

Reproductive Rights. President Bush issued a

Presidential Memorandum implementing the

policy on March 28, 2001. “Memorandum of

March 28, 2001 – Restoration of the Mexico City

Policy,” 66 F.R. 61, at 17303 (March 29, 2001)

[hereinafter Bush Memorandum].

Bush Memorandum, supra note 13, p. 17308.

The ban applies whether the NGOs receive the

funds either directly through USAID or indirectly

through U.S.-based NGOs that received USAID

funds.

Id. at 17311.

Id.

22 U.S.C.A. § 2151b(f)(1).

Alan Guttmacher Institute, “The Bush ‘Mexico

City’ Global Gag Rule Policy is More Extreme,”

(May 2001), on file with Center for Reproductive

Rights [hereinafter AGI Fact Sheet].

Id.

American Bar Association (ABA) policy #10H,

unanimously adopted August 1991.

Id. at 2-3 (emphasis in original, citations omitted).

The policy also stated:

In the health care context, the [ABA] has

opposed governmental intrusion into sensitive

and confidential areas of health care … in recog-

nition of the fact that the professional relationship

must be characterized by trust and privacy. The

medical practitioner, like the attorney, must be

free to give the patient the best possible profes-

sional advice, and this freedom must be guarded.

The principle at stake is whether federal fund-

ing is, or should be, synonymous with federal

censorship. Opportunities for government

manipulation of information emanating from

funded projects abound. Scholarly research,

library collections, and creative arts endeavors are

but a few of the programs which could be jeopar-

dized by the tolerance for “viewpoint discrimina-

tion” implicit in the [domestic gag rule] …

From the professional’s point of view, the regula-

tions require physicians to violate principles of

medical ethics dating from the ancient days of

Hippocrates, which mandate accurate and com-

plete communication of treatment alternatives,

including information about abortion, and which

prohibit the abandonment of a patient, at least

without an appropriate referral. In effect, the

same doctor could not give the same quality of

care, could not even give the same answer to the

same medical question, to two patients at two dif-

ferent facilities. Moreover, court decisions in at

least thirty-six states and the District of Columbia

have held that physicians may be liable for failure

to disclose alternative treatment information

material to the patient’s ability to make informed

medical decisions. As this briefing paper goes to

press, the ABA also voted to oppose the global gag

rule. ABA Resolution 118, August 7, 2001.

AGI Fact Sheet, supra note 18.

Center for Reproductive Rights, “The Impact of

the Global Gag Rule: A Country by Country

Snapshot” (February 2001) [hereinafter Country

by Country Snapshot].

Id.

Bush Memorandum, supra note 13, at II(e)(1)

and (13)(i-iii)(A)(I-II).

Id. at II(e)(1) and (13)(iii)(A)(III).

Id. at II(e)(1) and (13)(iii)(A)(IV).

If the same restriction were placed directly on

U.S.-based NGOs, it would be an unconstitution-

al violation of the protection of freedom of

speech under the First Amendment to the U.S.

Constitution.

See, e.g., Rust v. Sullivan, 111

S.Ct. 1759, 1774-1775 (1991); and Federal

Communications Commission v. League of

Women Voters of Cal., 104 S.Ct. 3106, 3128

(1984).

Bush Memorandum, supra note 13, p. 17311.

Paragraph II(e)(13)(iii)(A)(IV) prohibits “[l]obby-

ing 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 plan-

ning.”

See, e.g., The Universal Declaration of Human

Rights, art. 19, G.A. Res. 217A (III), UN GAOR,

3rd Sess., Pt. 1, at 71, U.N. Doc. A/810 (1948)

(

adopted Dec. 10, 1948) [hereinafter Universal

Declaration]; International Covenant on Civil

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The Bush Global Gag Rule

and Political Rights, adopted Dec. 16, 1966, UN

GAOR, Supp. No. 16, at 52, U.N. Doc. A/6316,

999 U.N.T.S. 171 (

entered into force March 23,

1976) (

U.S. deposit of instrument of ratification

June 8, 1992), arts. 19, 21 [hereinafter Civil and

Political Rights Covenant].

Universal Declaration, supra note 37, preamble.

Id., art. 19.

Id., art. 21(1).

Status of the International Covenant on

Economic, Social and Cultural Rights, the

International Covenant on Civil and Political

Rights and the Optional Protocols to the

International Covenant on Civil and Political

Rights, United Nations Report of the Secretary-

General

, A/54/277, 4 (August 25, 1999).

Civil and Political Rights Covenant, supra note

37, art. 19.

American Convention on Human Rights, 1144

U.N.T.S. 123; 9 I.L.M. 673 [hereinafter

American Convention], which the United States

has signed but not yet ratified.

See, ABA, The

International Human Rights of Women:

Instruments of Change

, 251 (1998) [here-

inafter

ABA: Instruments of Change].

American Declaration of the Rights and Duties

of Man, Resolution XXX, Final Act, 9

International Conference, March 30-May 2,

1948, Bogota, OAS Off. Rec., OAS Res. 30,

OEA/Serv.L./V./1. 4 rev. (1965) [hereinafter

Declaration of Rights and Duties], to which the

United States is subject.

See ABA: Instruments

of Change

, supra note 43, at 131.

Inter-American Declaration of Principles on

Freedom of Expression, Inter-American

Commission on Human Rights Web site at

<http://www.cidh.oas.org/declaration.htm> (last

visited July 9, 2001) [hereinafter Declaration of

Freedom of Expression], to which the United

States is subject.

Examples include the following: “the right to

seek, receive and impart information and opin-

ions”, Declaration of Freedom of Expression,

supra note 45, art. 2; “the right to freedom of

thought and expression”, American Convention,

supra note 43, art. 13.1; “the right to freedom of

investigation, of opinion, and of the expression

and dissemination of ideas, by any medium what-

soever”, Declaration of Rights and Duties,

supra

note 44, art. IV; “the right to access to informa-

tion about himself or herself”, Declaration of

Freedom of Expression,

supra note 45, art. 3;

“[t]he right of expression may not be restricted by

indirect methods or means”, American

Convention,

supra note 43, art. 13.3; and

“[r]estrictions to the free circulation of ideas and

opinions, as well as the arbitrary imposition of

information and the imposition of obstacles to

the free flow of information violate the right to

freedom of expression,” Declaration of Freedom

of Expression,

supra note 45, art. 5. The gag rule

violates these provisions because health care

workers are prohibited from informing clients

about all legal medical options; organizations are

prohibited from communicating about a public

health issue to their government officials, and

from conducing public education about a signifi-

cant public health issue; clients of health clinics

are prohibited from receiving information about

all legal medical options pertaining to their

health conditions; and family planning assistance

is being held hostage to U.S. government censor-

ship.

Summit of the Americas Plan of Action,

AmericasCanada Web site at <http://www.americ-

ascanada.org/eventsummit/declarations/plan-

e.pdf>, art. 2, p. 7 (last visited July 9, 2001).

22 U.S.C.A. § 2151(a) (West 1990). Several for-

eign assistance programs include the building of

democratic institutions and the promotion of

individual freedoms, including the freedom of

speech.

See, e.g., 22 U.S.C.A. § 2871 (1) (Radio

Free Europe and Radio Liberty); 22 U.S.C.A. §

5401 (Support for Eastern European

Democracy); 22 U.S.C.A. § 2274 (Central

America Democracy, Peace and Development

Initiative).

22 U.S.C.A. § 2151(b)(8).

22 U.S.C.A. § 2151(u)(a).

USAID, USAID’s Strategy for Sustainable

Development

(visited August 18, 1997)

<http://www.info.usaid.gov/democracy/strategy.ht

m> (since revised). “USAID will support pro-

grams in four areas that are fundamental to sus-

tainable development: Population and Health,

Broad-Based Economic Growth, Environment,

and Democracy.”

Id. “Democracy’s freedoms

permit the formation of a wide range of non-gov-

ernmental organizations throughout society,

including community associations, service

providers, unions, advocacy groups, and religious

institutions. These private organizations often

stimulate innovation in production and social ser-

vices, confront corruption, advocate respect for

human rights, and promote and defend democra-

A Violation of International Human Rights

www.reproductiverights.org

tic process and institutions.” Id.

22 U.S.C.A. §§ 2151-1(6), 2151b(d)(1), 2151k ,

2225.

USAID, Fact Sheet: USAID Office of Women in

Development.

Id.; see also USAID, Fact Sheet: New USAID

Women’s Legal Rights Initiative;