Proposed "Domestic Gag Rule" Violates Americans’ Right to Free Speech

FOR IMMEDIATE RELEASE – July 31, 2018

[NEW YORK, NY] – Today marks the deadline for public commentary on the changes to the Title X Family Planning Program proposed by the Department of Health and Human Services (HHS). If adopted, this domestic “gag rule” would ban health centers that receive Title X funding from providing their patients with information, referrals, access or support regarding abortion services. This rule is yet another attack by the Trump Administration on low-income and minority communities.

Exporting Censorship: How U.S. Restrictions on Abortion Speech and Funding Violate International Law

Excerpt from Akila Radhakrishnan and Kristin Smith's blog post on IntLawGrrls

Although much attention is rightfully paid to the devastating impact of the reimposed Global Gag Rule, the Helms and Siljander Amendments (which have been permanently in place since the 1970s) often command less consideration. These restrictions are discussed separately here in order to illustrate their unique effects on freedoms of speech and association. However, Helms, Siljander and the Global Gag Rule all fall short of the ICCPR’s requirements and therefore violate freedoms of speech and association in complex ways, as examined in more detail in the Global Justice Center’s recent brief. This post explores how the Helms and Siljander Amendments fail to meet the ICCPR’s standards for lawful restrictions on the freedom of speech. Part Two will focus on the Global Gag Rule and its violation of the freedom of association.

The Helms Amendment (first enacted in 1973) provides that no U.S. funds “may be used to pay for the performance of abortions as a method of family planning or to motivate or coerce any person to practice abortions.” In practice, U.S. government agencies have interpreted and applied the Helms Amendment as a total ban on abortion speech and services, despite the Leahy Amendment’s attempt to clarify that counseling on pregnancy options should not be considered “motivation.” U.S. application of Helms also does not include exceptions for rape, incest or life endangerment (unlike the Global Gag Rule), even though these exceptions are often covered by other legal protections (such as international humanitarian law).

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Exporting Censorship: How U.S. Anti-Abortion Policy Violates International Laws on Freedom of Speech and Association

The Global Gag Rule Violates the Freedom of Speech

U.S. abortion restrictions on foreign aid impact the freedoms of  speech and association and prevent women from accessing necessary healthcare, limit democratic debate, and restrain other countries from complying with their human rights obligations. In short, they violate international law.

U.S. Restrictions and International Law

The freedoms of speech and association are central to the democratic process and among the most fundamental human rights. Protected by Articles 19 and 22 of the International Covenant on Civil and Political Rights (ICCPR), these rights cannot be obstructed by governments unless restrictions pass a strict three-part test. The ICCPR requires that any restrictions on speech or association: (1) are provided by law; (2) have a legitimate aim; and (3) are necessary and proportionate to achieving that aim.1
U.S. abortion restrictions on foreign aid fail every part of the ICCPR’s test. Instead, the Helms Amendment, Siljander Amendment, and Global Gag Rule (see the Global Justice Center’s FAQ for an explanation of these restrictions)2  limit the provision of abortion services around the world and prevent individuals, organizations, doctors, and human rights advocates from speaking about abortion rights to patients, governments, and the public.  Drawing from the Global Justice Center’s brief,3  the following examples demonstrate how these restrictions violate international law.

U.S. Restrictions on Free Speech & Association: How U.S. Anti-Abortion Policy Violates International Law

The Global Gag Rule Violates the Freedom of Speech

Since 1973 and the passage of Roe v. Wade, the United States has imposed restrictions on how foreign aid money is spent when it comes to abortion. These restrictions directly impact health care providers by reducing the services and information they can give. In fact, the restrictions are so far-reaching that they also limit the activities of experts and advocates when it comes to defending abortion rights. As a result, the U.S.—a country that prides itself on its democratic ideals—is continually violating the free speech and association rights of health care providers and advocates around the world.1

How U.S. Abortion Restrictions Violate International Law

  • Limit debate on issues of public interest and advocacy on human rights.
  • Harm the democratic process of other countries by preventing the free and open discussion of abortion as a right and barring the discussion of legislative changes to make the right effective.
  • Fail to provide sufficient clarity on which speech and activities remain allowed, creating a chilling effect on speech and activities that remain permissible. 
  • Do not pursue a legitimate aim such as national security or public health. The U.S. government itself does not see these restrictions as necessary to achieving a legitimate aim, as the Global Gag Rule is regularly removed and reinstated by U.S. presidents along party lines. In fact, the restrictions threaten women’s health by decreasing access  to necessary health care services and increasing unsafe abortion rates.2

GJC President (acting) Speaks at the Feminist Majority Foundation's National Young Feminist Leadership Conference

Saturday, March 17, 2018 at 10:00 am - 12:00pm

At Washington, DC

Sponsored by the Feminist Majority Foundation, the 2018 National Young Feminist Leadership Conference will provide young activists with the opportunity to network, grow their knowledge on pertinent domestic and global feminist issues, and fine-tune their organizing methodology.  Young feminist activists from around the nation come together to discuss issues including (but definitely not limited to) reproductive justice, eco-feminism, intersectionality and identity-based activism, campus organizing tactics and methods, violence against women, ballot measures and political organizing, social media and web-based activism, and global women’s rights and health. GJC President (acting) Akila Radhakrishnan will be speaking on the harm caused by US abortion restrictions. 

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US Abortion Restrictions on Foreign Aid and Their Impact on Free Speech and Free Association

The United States (US) imposes restrictions on its foreign aid that limit both services and speech related to abortion. They attach to nearly all recipients of foreign aid—limiting the activities, speech, and information that can be legally provided by doctors, health professionals, experts and advocates. These restrictions violate the US’s fundamental human rights obligations to protect free speech and free association.

This brief explains the restrictions on free speech and association imposed by the US Congress (the Helms and Siljander Amendments) and by the executive branch (the Global Gag Rule [“Gag Rule” or “GGR”]). It then details the US’s human rights obligations to respect freedom of speech and association, focusing on obligations under the International Covenant on Civil and Political Rights (ICCPR). The ICCPR only allows for the restriction of these rights in narrow circumstances: where the restriction is adequately provided by law, where it serves a legitimate aim (such as national security or public health), and where the state demonstrates that the restriction is necessary and proportionate in achieving that aim. This brief demonstrates that the Helms and Siljander Amendments and the GGR all fail that strict test, and therefore violate US obligations to ensure and protect the rights to free speech and association guaranteed under international human rights law.

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FAQ: How US Abortion Restrictions on Foreign Assistance, including the Global Gag Rule, Violate Women Rights & Human Rights

On January 23, 2017, his second day in office, President Trump issued an executive order reinstating the Global Gag Rule (“GGR” or “Gag Rule,” now termed “Protecting Life in Global Health Assistance”), restricting US funding for organizations that provide abortion services as a method of family planning. The GGR joins a multitude of other restrictions on family planning and abortion imposed on US foreign assistance that permit the US government to dictate the care provided to women around the world. This FAQ explores commonly asked questions about these policies—what they are, what they mean, and their impact is—including on women’s and human rights.

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GJC Weekly News Roundup

By Julia d'Amours

Chile proceeds with the repeal of its total anti-abortion laws. In August, legislation was presented to permit abortion in three cases: if the life of the mother was in danger, if it the fetus would not survive, or if the pregnancy was a result of rape. Lawyers argued that a total abortion ban was inhumane and a violation of women’s rights. Though polls indicate more than 70 percent of the population supports more lenient abortion laws, the Catholic Church and elite upper class staunchly opposed the bill. The repeal is considered a major victory in women’s rights and reproductive rights, and many hope it will lead to similar legislation in the region.

Last Friday, Kenya’s Supreme Court ruled that the re-election of the sitting president would be revisited after discovery that the vote counts had been irregular. It is the first example in Africa in which a court voided the re-election of an incumbent. Many are at unease considering Kenya’s fragile political landscape—the last disputed election in 2007 resulted in at least 1,300 dead and 600,000 displaced around the country.

On Sunday, Cambodia arrested Kem Sokha, the main opposition leader, accusing him of treason. This follows accounts of government harassment on the free press and expulsion of NGOs, such as the pro-democracy National Democratic Institute. A Human Rights Watch official called the arrest “a disastrous setback” for Cambodia as the country prepares for elections next year.

On Monday, Malala Yousafzi joined an increasing number of human rights activists in publicly criticizing Myanmar’s effective leader Aung San Suu Kyi for the treatment of the Rohingya Muslim minority in Burma. More than 73,000 Rohingya have fled into Bangladesh after they were attacked by Burmese military factions on August 25th. The UN special rapporteur for human rights in Myanmar has described the situation as “grave.” Widely seen as a champion of democracy, Suu Kyi has remained quiet on the subject of the Rohingya.

On Tuesday, President Trump broke headlines by announcing the end of DACA—the federal program that protected nearly 800,000 young undocumented immigrants who were brought to the US as children. He claimed DACA’s establishment was an abuse of electoral power and rebuking it would establish rule of law. Many of those enrolled in DACA already have families, started careers, or enrolled in higher education in the US. Permits that are set to expire in the next six months will be renewed, but the Department of Homeland Security will stop processing new applications for the program. Officials say there will be no formal guidance that former DACA recipients are not eligible for deportation.

On Wednesday, the Trump Administration introduced a Security Council resolution that would empower the United States Navy and Airforce to interdict North Korean ships and evaluate if their cargo contains military equipment. It also included a ban on the shipment of crude oil, petroleum, and natural gas, which would have severe results for the North Korean population as winter approaches, and aims to block the assets of Kim Jong-un. The resolution is careful not to encompass a total blockade, which is an act of war, but permits the US and UNSC to “nonconsensual inspections.”

On Thursday, a federal appeals court permitted thousands of refugees who had been blocked by President Trumps’ travel ban to enter the country. Since June, the government has frozen refugee resettlement applications and brought resettlement programs to a standstill.  Yesterday’s ruling mandated that the government resume refugee resettlements in the next five days. It also upheld a lower court decision that exempted grandparents and other relatives from the ban. A Justice Department representative remarked that they will appeal the decision to the Supreme Court.

Also on Thursday, the High Court of Australia ruled that a postal survey on the legalization of gay marriage was legitimate, despite the objections of same-sex marriage advocates. The results of the survey could not make same-sex marriage legal or illegal, but it could spark a vote in Parliament. Polls suggest that a “yes” vote in favor of legalizing gay marriage will prevail. The results will be announced the 15th of November.

Photo by Alsidare Hickson 

Global Justice Center Applauds Senate Committee Vote Against Global Gag Rule

FOR IMMEDIATE RELEASE - September 8, 2017

[NEW YORK, NY] – On Thursday, the Senate Appropriations Committee moved to reinstate funding for the United Nations Population Fund and overturn Trump’s reinstatement and expansion of the Global Gag Rule. Sen. Jeanne Shaheen from New Hampshire proposed an amendment to the 2018 State and Foreign Operations Appropriations Bill that would overturn Trump’s expanded version of the Gag Rule, reinstate US contributions to UNFPA and limit the power of any future president to reinstate the Gag Rule. The amendment was approved with the votes of two female republicans, Senator Collins from Maine and Senator Murkowski from Alaska, but still needs to pass the full senate to become law.

GJC Weekly News Roundup

 Wednesday, Turkey detained eleven human rights defenders near Istanbul. The activists were attending a workshop on protecting the work of human rights groups when Turkish police arrested them on the baseless suspicion of belonging to an “armed terrorist organization,” and they are still in custody. Two are leaders of Amnesty International Turkey.

Friday, the Financial Times explored Brexit’s impact on women. The British government drew attention last month because of the lack of women on their negotiating team (two of the twelve negotiators at the initial meeting were women), but concerns extend beyond that. Laws on women’s rights might change with Brexit, particularly if Britain is no longer under the jurisdiction of the European Court of Justice. This could remove decades of progressive decisions on issues including equal pay, pregnancy discrimination, and sex discrimination laws.

Saturday, in an article about the Afghan province Ghor, The New York Times described what happens when the law provides no protection for women. Ghor’s weak rule of law and their marriage customs leave women vulnerable. There have been 118 registered cases of violence against women in the past year—with many more going unreported—and zero suspects in these 118 cases have been arrested. Extreme stories of women being abducted, shot, stoned to death and more have emerged from the province in recent years. Law officials say they have to balance justice with security when sharing borders with violent, Taliban-occupied territories.

Monday, Oregon’s legislature passed one of the most progressive pieces of reproductive rights legislation in the country. The Reproductive Health Equity Act requires health insurance to cover, at no cost to patients, a number of reproductive health services such as abortion, contraception and prenatal and postnatal care. Religious employers can opt out of covering abortion and contraception. It also reaffirms Oregon citizens’ rights to an abortion, protecting them from possible changes in federal law. The bill will now go to Governor Kate Brown, a Democrat who is supportive of reproductive rights.

Tuesday, in retaliation against the United States’ Global Gag Rule, Sweden’s development agency announced it will no longer give funding for sexual and reproductive health services to organizations that follow the Gag Rule. Sweden is also allocating new funds to organizations that agree to not follow the Gag Rule.

Wednesday, Buddhists protested the arrival of a UN human rights envoy to Myanmar. The envoy is on an information-gathering trip in the Rakhine state to investigate security forces’ human rights abuses against the Muslim Rohingya minority. The protestors said Yanghee Lee, who is leading the envoy, is too “one-sided.” Earlier this summer, Lee recommended a special UN mission to investigate the problems in Rakhine, which the Human Rights Council approved; however, Myanmar wouldn’t allow the mission members to enter the country.

Wednesday, U.S. Education Secretary Betsy DeVos is re-examining the college sexual assault policies instituted under Title IX during the Obama administration. She is meeting with victims of sexual assault, men accused of assault, and higher education officials. Obama’s policies sparked a backlash from some who believed the policies and investigations went too far in ignoring the rights of the accused.

GJC Weekly News Roundup

Thursday, an appeals court ruled that abortion law in Northern Ireland should be determined by a legislature, not by courts or local government. It ruled against a change in law to allow abortions in cases of rape or fatal fetal abnormality. Abortion restrictions are stricter in Northern Ireland than they are in the rest of the United Kingdom; it is legal only if there is a serious risk to the mother’s health or life. Abortion rights advocates are hoping the case will proceed to the Supreme Court. The same day, the UK government passed legislation allowing women in Northern Ireland to have abortions for free in England under the National Health Service.

Thursday, the state prosecutor’s office charged Antonio Benavides, the former head of Venezuela’s National Guard, with human rights violations. He was removed from his post last week and reassigned to a position as head of Venezuela’s Capital District government after a video of his troops shooting handguns at protestors was released. The office also said they had evidence that his forces used “excessive force” against demonstrators, tortured protestors, issued raids without warrants, and more. Anti-government protests have swelled in recent months, pushing for the resignation of President Nicolas Maduro and demanding general elections.

Monday, the New York Times reported that while the Trump administration has not followed through on policies that help women and families, states have. Experts say that states have been increasingly active on these policies, which have widespread support, because of the slow pace of policymaking in Congress. Recent state legislation includes paid family leave and breast-feeding breaks and lactation rooms in the workplace.

Wednesday, aid groups protested Australia’s decrease in foreign aid spending on family planning and urged the government to compensate for the family planning aid void left by the Trump administration’s Global Gag Rule. Their recently released overseas development assistance budget shows that aid funding for family planning went from AU$46.4m in 2013-2014 to $23.7m in 2015-2016.

Photo credit: Diliff (CC-BY-SA-3.0)

U.S. Continues to Prioritize Anti-Abortion Policy Over The Wellbeing of Women

By Marie Wilken

The United States recently rejected a United Nations Human Rights Council resolution on violence against women because it contained language calling for access to abortion in countries where it is legal. This is yet another example of the Trump administration using international aid and laws to limit access to abortion around the world. Like the Global Gag Rule, this rejection ignores that in addition to infringing on reproductive rights, these actions have many negative ramifications that are unrelated to abortion.

After a resolution aimed at eliminating violence and discrimination against women, introduced by Canada, was adopted by consensus, the United States dissociated from the consensus because of a sentence about abortion.  While abortion was not a primary focus of the resolution, it stated that all women should have access to “comprehensive sexual and health-care services” including “safe abortion where such services are permitted by national law.” U.S. First Secretary to the U.N. in Geneva Jason Mack delivered a statement saying that the U.S. agrees with the “spirit” of the resolution but cannot endorse the paragraph on reproductive services because the U.S. does “not recognize abortion as a method of family planning, nor do we support abortion in our reproductive health assistance.”

This is not a singular action; its motivations and effects parallel other Trump administration policies. Congress’s new health care bill defunds Planned Parenthood—a policy that, though driven by anti-abortion sentiment, will have a much broader impact on women’s health care. This year President Trump reinstated and greatly expanded the Global Gag Rule. The administration refuses to fund international aid even loosely related to abortion, and its rejection of the UN resolution suggests it is adopting a similar approach toward international law. Because of the Gag Rule, organizations are afraid to even reference abortion out of fear of losing their U.S. funding. There is now fear that the same chilling effect to mentions of abortion and other reproductive rights will spread to international law. The Global Gag Rule, health care bill, and rejection of the UN resolution not only violate women’s reproductive rights, but all also deny women unrelated services and protections.

The United States’ resistance to international reproductive rights is dangerous. By denying women around the world safe and accessible abortion, it risks the lives of women and girls. Approximately 830 women die from preventable pregnancy- and childbirth-related causes per day. U.S. policy forces some of the world’s poorest women to choose between giving birth to a child they cannot afford to care for and seeking an unsafe abortion. The World Health Organization estimates that approximately 225 million women in developing countries want to prevent pregnancy but are not using contraception, mostly due to the limited reproductive health services available.  The administration’s policies are also dangerous because of the message they send the international community about abortion and U.S. ideals. Abortion is a reproductive right, and reproductive rights are an essential aspect of women’s rights—but Mack’s statement separated abortion from other rights and reproductive health services and demonized it. He wielded United States influence over international norms to push them backwards, away from progress toward equal protection of rights.

Because of one sentence on abortion, the United States obstructed the entire resolution. In addition to attacking women’s reproductive rights, the U.S. missed its opportunity to show commitment to improving the lives women through preventing violence and eliminating discrimination. By doing so, the Trump administration reaffirmed its willingness to sacrifice women’s rights, health care, and even lives.