Trump’s Global Gag Order and Reproductive Rights

The last week has been characterized by surprising executive orders coming out of the freshly minted President Trump’s Oval Office left and right.  One of these orders is, perhaps, a little less surprising than the others–the global gag rule.

Trump’s spin on the global gag rule came, ironically, the day after the anniversary of Roe v. Wade–arguably the most influential case ensuring reproductive rights in the 20th century.  It also was only two days after the women’s march–with 673 different marches taking place in support of women’s rights around the globe.

The order enacts a policy which forbids providing U.S. aid money to any foreign organization which offers any abortion-related services–from actual abortions to things as small as providing pamphlets about abortion, information of any sort about getting an abortion, or medical referrals to locations that can provide safe abortions.  The order even applies in countries where abortions are completely legal.  So why isn’t such a huge order–chilling reproductive rights across the globe–a surprise?  Because, at its core, it’s nothing new.

The original global gag rule–also known as the Mexico City Policy–was put into force by Ronald Reagan in 1984.  Since the policy first came to be, every passing of the guard has seen the policy removed or reenacted.  President Clinton got rid of the policy nearly immediately on taking office, President Bush brought it back just as quick during his tenure, and President Obama nixed it within days of taking office.

With this in mind, the global gag rule wasn’t unexpected–what was unexpected was the additions President Trump included which further curtail reproductive rights around the globe.

So What Has Changed?

Trump’s global gag policy made some changes which, while subtle at a glance, actually represent fairly sweeping expansions on previous versions of the rule.  For instance, versions under Reagan and Bush both included exception for services provided by the government–Trump’s order has no such exception.  In fact, the changes are even more far reaching than that.  Previous versions applied only to family planning programs around the world–Trump’s gag policy applies to all health funding full stop.   Trumps version of the order also closes exemptions for hospitals and clinics which don’t offer abortion and situations where health providers treat women suffering complications after they seek an illegal or unsafe abortion–as they might be forced to do where abortion is made unavailable.

When George W.  Bush enacted his version of the policy, he included a carve out for the President’s Emergency Plan for AIDS Relief (PEPFAR).  This was because the rule would make the goals of PEPFAR–helping to treat AIDS in developing countries–impossible to achieve if the global gag rule had been applied to them.  Trumps rule, once again, has no such exception.

You’re probably wondering what kind of an impact these changes have on the assistance the U.S. offers to foreign countries.  The policy, as originally written, stopped a whopping $600M a year in foreign aid from helping those in need of reproductive care.  Trump’s expansions increase that number substantially, blocking potentially as much as $9.5B in funding.

What Will it Do?

The amount of money that could be taken away from people trying to provide women with safe health services is astronomical.  However, it is important to understand exactly what the global gag rule achieves in order to understand its full effect.  In order to that, it’s important to understand what it doesn’t achieve.

Shortly after Roe v. Wade served to help delineate the situations in which a state could not impinge on a woman’s privacy and reproductive rights, Congress lashed out against abortion in one of the only legal ways it could.  In 1973, they passed the Helms Amendment to the Foreign Assistance Act–colloquially known as just the Helms Amendment.  This amendment actively serves to bar and U.S. tax dollars from funding “abortion as a method of family planning or to motivate or coerce any person to practice abortions.”  Thus, the Global Gag Policy isn’t in place to prevent money from going to abortions–the Helms Amendment has already seen to this.

Instead, the global gag rule seeks to go far beyond the Helms Amendment–punishing health service providers for even providing information on abortion as a family planning option.  What’s more, while federal law implies that the Helms Amendment has exceptions for situations such as rape, incest, or a pregnancy which threatens a woman’s life, the new version of the global gag rule has no such exclusions.  It does not even provide an exception for HIV/AIDS funding.

The gag rule also goes further than the Helms Amendment in another way.  While the Helms Amendment prevents U.S. dollars from funding abortions, the global gag rule works to limit how an organization applies its own funds.  Under the order, if an organization uses its own funds to even provide literature discussing abortion as a family planning option it is unable to receive funding from the U.S. government.

So what will the gag rule truly accomplish?  It will reduce funding to contraception and AIDS prevention services around the globe.  It will cut funding to organizations focusing of water and sanitation, child survival and education–killing children in developing countries.

The global gag rule has not served to reduce abortions abroad for an obvious reason.  The health service organizations it tends to target are also some of the primary providers of contraception and birth control.  Lo and behold, removing funding from the people who provide cheap access to contraception leads to more women seeking an abortion–some studies showed the number of abortions sought around the world increasing nearly 3 times over during periods where the gag rule is in effect.  History and the numbers under the past global gag policies have also shown that putting abortion out of reach does not stop women from seeking abortions–it forces women in developing countries to seek unsafe abortions.  In fact, the World Health Organization puts the number of unsafe abortions in developing countries alone at about 21M per year.  The deaths resulting from these unsafe procedures accounts for 1 in 6 maternal deaths.

Is it Legal?

For quite some time, despite its substantial potential for harm, the legality of the global gag rule has been supported by a 1991 Supreme Court case known as Rust v. Sullivan.  This case dealt with the ability of the government to place abortion-related conditions on organizations receiving federal funds.  The issue was framed as a potential First Amendment violation as the restriction in question in the case refused funds to organizations with doctors who informed patients about abortion as a medical option.  The Supreme Court upheld the restrictions, ruling that while Congress could not stop doctors from advocating for abortion through other separately funded programs, they can stop them from doing so using money provided by the government.  This has been interpreted to mean that the global gag rule in constitutional.

However, in 2013, another Supreme Court case may have changed the boundaries of Rust in such a way to bring legality of the global gag order into question.  The case dealt with a law which barred organizations from receiving government funding where the group advocated for legalizing sex work.  This included situations where the groups used their own money to support their advocacy.  The Supreme Court ruled that restricting activities “on [an organizations] own time and dime” was an unconstitutional condition on funding and violated First Amendment rights.

Executive orders, such as the gag rule, must be constitutional.  While the gag rule certainly does restrict the way organizations–both abroad and organizations within the U.S. with operations abroad–may use their own funds, it is still unclear whether these more recent changes would render the gag rule unconstitutional.  The global gag order has not been in place since the Supreme Court expanded on its position on Rust so no organization has had a chance to challenge it.  It’s likely that an organization whose funding has been jeopardized will bring a lawsuit arguing just this distinction in the coming days.

This is Our Reality

Until this legal uncertainty can be resolved, women at home and abroad will suffer for it.  Protecting a woman’s reproductive rights is crucial, providing women the right to autonomy over their own bodies is not a woman’s issue it is a human one.  The global gag order not only simply doesn’t achieve its goal, it takes reproductive choices out of the hands of women and forces them to look elsewhere–often at the risk of their own health.