The Effect of Laws and Policies About Foreign Aid on Access to Reproductive Health Services

Date:	04 April 2018
Author:	GHLG Blog

By Dean M. Harris, J.D., Associate Professor, Department of Health Policy and Management, Gillings School of Global Public Health, University of North Carolina at Chapel Hill, USA, Dean_Harris unc.edu

In January of 2017, I wrote a blog post for Global Health Law Groningen about the global health effects of the 2016 U.S. election. I wrote it a few days before the inauguration of a new president. At that time, I made some predictions about the likely effects of the election on the U.S. role in global health.

I wish that my predictions had been wrong. In fact, the actual results have been worse than anticipated. My predictions in January of 2017 were that “It is very likely that the change of government in the U.S. will: (1) reduce access to reproductive health services; (2) change the amounts and priorities of development aid from the U.S. government; (3) reduce progress in responding to global environmental problems; and (4) change U.S. immigration policies in ways that adversely affect other countries.”[1] Specifically, I noted that the new president might reinstate the U.S. government’s Mexico City Policy , which critics call the “global gag rule.”[2]

Three days after his inauguration, the new U.S. President issued a “Presidential Memorandum Regarding the Mexico City Policy.”[3] That Presidential Memorandum not only reinstated the policy, but also greatly expanded its scope. In addition, that Presidential Memorandum began a process, under the federal “Kemp-Kasten” law, to stop U.S. funding for the United Nations Population Fund (UNFPA), on the false basis that this UN agency supports coerced abortion or involuntary sterilization in China. This new blog post provides more information and analysis about the expanded Mexico City Policy and the “Kemp-Kasten” law.

These actions by the current administration in Washington demonstrate how the laws and policies of one country might have the effect of reducing access to care in many other countries, especially for reproductive health services. In many countries, access to reproductive health services depends on financial support from international bodies, non-governmental organizations (NGOs), and the governments of wealthy countries. The EU and its Member States are the world’s biggest donors of official development assistance. In addition to European countries, major donors for family planning and reproductive health include Australia, Japan, Canada, and the United States.

The U.S. government has provided financial support for HIV/AIDS through PEPFAR (the “President’s Emergency Plan for AIDS Relief”). That bipartisan effort was created by former President George W. Bush (a Republican) and expanded by former President Barack Obama (a Democrat). The U.S. has spent over $6 billion per year on programs for anti-retroviral drugs for HIV. The current U.S. President has proposed to reduce this funding, although some members of Congress oppose that reduction.

Author and journalist Thomas Friedman made a useful observation that the current U.S. President is unable to make connections between different issues, and does not understand the relationship between different problems.[4] The President wants to stop migration to the U.S. from poor countries, but he has taken steps that are likely to increase the level of global migration. For example, the President has cut or restricted reproductive health services, and he has refused to cooperate with efforts to address global climate change. As Friedman explained, the President apparently does not understand that population explosion and climate change in developing countries will increase the number of refugees and migrants in the world.

The “Mexico City Policy” (the Global Gag Rule)

This policy does not simply prohibit the use of U.S. funds to perform abortion. In fact, another U.S. law (the “Helms Amendment”) already prohibited using U.S. government funds to perform abortion, with very few exceptions. The Mexico City Policy prohibits foreign NGOs receiving U.S. government funds from using otherfunds to “perform or actively promote abortion as a method of family planning.”[5]Moreover, this “global gag rule” generally prohibits referral, advocacy, and public information on abortion.[6]

This policy was announced at a conference in Mexico City in 1984. The policy was issued first by President Ronald Reagan from the Republican Party. It is a “political ritual” for this policy to be quickly cancelled (“rescinded”) by Presidents from the Democratic Party (Bill Clinton and Barack Obama) but renewed (“reinstated”) by Presidents from the Republican Party (George W. Bush and the current President).

In 2017, the current President greatly expanded the Mexico City Policy. In the past, the policy only applied to family planning aid from the U.S. Agency for International Development (USAID) and the State Department, which was about $575 million in 2016 .[7] The current President’s expanded policy applies to more types of funding from more U.S. agencies (including “global health assistance furnished by all departments or agencies.”).[8] That is estimated to be about $9.5 billion.[9]

As a practical matter, this policy will limit access to more than abortion. Many NGOs that provide or refer for abortion also provide contraceptives, as well as services for diseases such as malaria and HIV. Under Republican President George W. Bush, the Mexico City Policy did not include HIV/AIDS funding.[10] However, the expanded policy of the current President does include about $6 billion in HIV/AIDS funding under the PEPFAR program.[11]

Large-scale, global providers of reproductive health services have refused to comply with the new U.S. policy, including Marie Stopes International[12] and the International Planned Parenthood Federation (IPPF).[13] Those major providers of reproductive health services have estimated the serious effects of the U.S. policy, including large numbers of unintended pregnancies, unsafe abortions, and maternal deaths. On January 19, 2018, Marie Stopes International announced that it had obtained some replacement funding, but still faced a funding gap of about $80 million for the rest of the U.S. President’s current term in office.[14]

The U.S. government claims that it can give the same amount of money to different providers that agree to comply with U.S. policy.[15] However, critics doubt that the U.S. government could find qualified NGOs to meet the needs of people in developing countries.[16] In fact, the report of the U.S. government’s 6-month review of the policy, issued on February 6, 2018, did not identify those alternative providers, and did not indicate the specific amount of money that any alternative providers would receive.[17]

According to the government’s report of its 6-month review, only 4 out of 733 prime partners refused to agree to the condition in the government’s policy. However, the time frame of the 6-month review was too early for many NGOs to decide whether to accept the government’s condition. Moreover, the four providers that refused to agree to the condition include Marie Stopes International and IPPF, which are large-scale, global providers of reproductive health services. In a background briefing on February 7, 2018, senior government officials were unable to state the amount of funding that would have been given to those four providers, if they had agreed to the government’s condition.[18] Thus, the government’s claim that it can simply transfer funding to alternative providers is both speculative and unrealistic.

The government’s policy might even cause an increase in the number of abortions. Previous research has suggested an association between use of the Mexico City policy and increased rates of abortion in sub-Saharan Africa.[19] “The first study to measure the effect of the gag rule showed that this policy could actually have resulted in an increase in abortions.”[20] “Moreover, there is no evidence that the global gag rule has ever resulted in its stated aim of reducing abortion.”[21] Under these circumstances, Stephen Latham wrote that the U.S. policy is not really intended to stop abortion, but rather “to keep [U.S.] taxpayers’ hands clean.”[22]

To make up for the loss of funds, several European countries pledged money to She Decides.[23] After the U.S. president cut off funding to NGOs, Netherland’s Minister for Foreign Trade and Development Cooperation started a fundraising initiative, and was quickly joined by the Belgian Minister for Development Cooperation. Many others are also participating in this important initiative.

The “Kemp-Kasten Amendment” (a U.S. federal statute)

This U.S. statute is part of the process for the annual appropriation of government funds. Since 1985, Congress has included the Kemp-Kasten provision in annual appropriation acts. The legislation prohibits giving U.S. government funds to “any organization or program which, as determined by the [p]resident of the United States, supports or participates in the management of a program of coercive abortion or involuntary sterilization.”[24]

The U.S. Congress gave authority to the President to make this determination. If the President (or his designated official) makes a determination about a specific organization, that organization may not receive any U.S. government funds. In the past 33 years, the U.S. has cut off funding to the United Nations Population Fund (UNFPA) under Kemp-Kasten for 16 years.[25] Generally, Republican Presidents have cut off funding for UNFPA, while Democratic Presidents have allowed that funding.[26] The current U.S. President cut off the funding.

On March 30, 2017, the U.S. government made its determination under Kemp-Kasten to stop funding for UNFPA, and it issued a 2-page “Memorandum of Justification.”[27] The government acknowledged that it had no evidence of direct involvement by UNFPA in coercive abortions or involuntary sterilizations.[28]

In fact, the UN Population Fund helps to relieve poverty in developing countries, by supporting access to contraceptives and preventing teen pregnancy. As explained by Melinda Gates (co-founder of the Bill & Melinda Gates Foundation), contraception can “start to break the cycle of poverty.”[29] “All over Africa, young girls getting pregnant early when they don’t want to keeps them out of school. So you’d keep more girls in school ….”[30]

A similar debate in Europe about the UNFPA had a very different result. The Parliament of the United Kingdom debated proposed amendments in 2002 that would have restricted funding for UNFPA. A mission was sent to China to study and report on the situation.[31] The mission recommended continued support by the UK and other western governments for UNFPA’s work in China.[32]

Conclusion

Cuts and restrictions on U.S. aid for global health are examples of decision-making on the basis of ideology and politics, rather than on the basis of evidence. Commentators have noted that the U.S. is “putting ideology before evidence” in a “post-truth” world of “alternative facts.”[33]

This is not simply a disagreement about the truth or falsehood of particular facts. Rather, this is a broader attack on the basic concept of truth. It is an attack by people who argue that there is no such thing as truth that can be proven by evidence. Rather, they insist that all people–and all governments–are entitled to their own truth on the basis of their own “alternative facts.” Under these circumstances, it is important to remember the words of the late U.S. Senator Daniel Patrick Moynihan: “Everyone…is entitled to his own opinion, but not to his own facts.”[34]

Eventually, the pendulum in the U.S. will swing back to promote global health and access to care. Meanwhile, advocates for global health and access must continue to speak, write, and teach the truth.

[1] https://ghlgblog.wordpress.com/2017/01/20/global-health-effects-of-the-2016-u-s-election/

[2] See Harris, Dean, Ethics in Health Services and Policy: A Global Approach, (Jossey-Bass/John Wiley & Sons, Inc., San Francisco, CA, 2011) 1-287, at 77-79.

[3] https://www.whitehouse.gov/presidential-actions/presidential-memorandum-regarding-mexico-city-policy/

[4] Friedman, Thomas, “Connecting Trump’s Dots,” New York Times, (Feb. 8, 2017), https://www.nytimes.com/2017/02/08/opinion/connecting-trumps-dots.html

[5] Kaiser Family Foundation, “The Mexico City Policy: An Explainer,” (June 2017), at 4 http://www.kff.org/global-health-policy/fact-sheet/mexico-city-policy-explainer/ (hereinafter “KFF-1).

[6] Id.

[7] Id., at 3-4; Starrs, A, “The Trump global gag rule: an attack on US family planning and global health aid,” Lancet, (February 4, 2017), 389(10068): 485-486.

[8] Presidential Memorandum, supra note 3.

[9] Starrs, supra note 7.

[10] KFF-1, supra note 5, at 3 and note 18.

[11] https://www.state.gov/r/pa/prs/ps/2017/05/270879.htm

[12] https://www.mariestopes.org/news/2017/1/re-enactment-of-the-mexico-city-policy/

[13] http://www.ippf.org/news/why-we-will-not-sign-global-gag-rule

[14] https://mariestopes.org/news/2018/1/global-gag-rule-anniversary

[15] Background Briefing, supra note 11.

[16] https://www.nytimes.com/2017/05/15/us/politics/trump-gag-rule-abortion.html?mcubz=0&_r=0

[17] https://www.state.gov/f/releases/other/278012.htm

[18] https://www.state.gov/r/pa/prs/ps/2018/02/278089.htm

[19] KFF-1, supra note 5, at 5-6.