With this submission, the Global Justice Center (GJC) and the Center for Health and Gender Equity (CHANGE) aim to provide guidance to the pre-session Working Group in its preparation of the list of issues to be examined during the Human Rights Committee’s (“Committee”) review of the United States (US). It specifically focuses on areas of concern with respect to the US’s violations of the International Covenant on Civil and Political Rights (ICCPR) related to sexual and reproductive rights of individuals around the world.
Illegal US Abortion Policy
The Global Justice Center (GJC) has submitted a comment to the Department of Health and Human Services (HHS) urging the department to withdraw the proposed rule on abortion coverage for the ACA Marketplace. The proposed rule will create bureaucratic obstacles for abortion coverage, including instituting separate payment requirements for plans that cover abortion services.
The proposed rule violates women’s fundamental rights under the US Constitution and international human rights law. Human rights obligations protect access to abortion under a multitude of rights—including the rights to privacy, life, and health, and the right to be free from discrimination, torture, and cruel, inhuman or degrading treatment. The proposed rule would violate these protections by enacting discriminatory barriers to services needed only by women, stigmatizing abortion, and denying women access to safe affordable care, forcing them to seek out unsafe services at high risk to their health and lives.
"The outcome, and tacit intent, of the proposed rule is to discourage insurers from providing abortion coverage” says Global Justice Center Special Counsel, Michelle Onello. “It will impose onerous burdens on both insurers and consumers that aim to stigmatize abortion, embarrass women, annoy and inconvenience consumers, and increase administrative burdens on insurers.”
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Dear Secretary Azar and Administrator Verma:
The Global Justice Center (“GJC”) submits this comment in response to the Department of Health and Human Services’ (“HHS”) Proposed Rule entitled Patient Protection and Affordable Care Act, Exchange Program Integrity, published in the Federal Register on November 9, 2018 (the “Proposed Rule”). For purposes of this submission, commentary is limited to the portion of the Proposed Rule that suggests changes related to the separate payment requirements in section 1303 of the Patient Protection and Affordable Care Act (“PPACA”).
GJC is an international human rights organization based in New York dedicated to achieving gender equality through the rule of law. For the past decade, GJC has been at the forefront of efforts to ensure that the law protects and promotes access to comprehensive sexual and reproductive health rights for women and girls around the world. As experts in women’s rights and human rights, we write to express our vehement opposition to the Proposed Rule.
First, the Proposed Rule would impose undue and onerous burdens on both insurers and consumers that violate women’s fundamental human rights, including to non-discriminatory health care. Second, by singling out abortion for special treatment from all other health services, the Proposed Rule reinforces the already stigmatizing and discriminatory treatment of abortion under the PPACA. Third, the Proposed Rule does not, as claimed, fulfill Congressional intent, since Congressional intent under the PPACA was to allow issuers to decide for themselves whether to provide abortion coverage beyond the limited exceptions allowed under the discriminatory and harmful federal Hyde Amendment. Finally, the Proposed Rule imposes undue burdens on insurers and consumers that will lead to unnecessary restrictions on comprehensive health care for women. The outcome, and tacit intent, of the Proposed Rule is to further stigmatize abortion and to impose onerous burdens on both insurers and consumers that will embarrass women, annoy and inconvenience consumers, and increase administrative burdens on insurers, all with the ultimate aim of discouraging insurers from providing abortion coverage. As such, the Proposed Rule violates women’s fundamental rights under the US Constitution and international human rights law. For these reasons, GJC urges HHS to withdraw the Proposed Rule.
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.
FOR IMMEDIATE RELEASE – May 23, 2018
[NEW YORK] – The Trump administration proposed a domestic “Gag Rule” last night, banning health centers that provide, refer, support, or assist women in accessing abortion services from receiving Title X funding. This dangerous policy will deny women their fundamental human rights.
Like the Global Gag Rule reinstated by President Trump in 2017, the Domestic Gag Rule will coerce doctors into staying silent about the option to terminate a pregnancy (except in extremely limited circumstances) under threat of losing their government funding. In effect, the Domestic Gag Rule will prevent doctors from providing complete and accurate medical guidance to women. Even if a patient asks directly where she can obtain an abortion, a Title X provider will not be able to provide her with direct information in order to allow her to access her constitutionally protected right.
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).
Exporting Censorship: How U.S. Anti-Abortion Policy Violates International Laws on Freedom of Speech and Association
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
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
An official appointed by Trump said during a closed-door meeting at the UN that the United States is a "pro-life country."
Legally, it's not.
The official also tried to negotiate the removal of any references to "sexual and reproductive health" in a UN document. Every day, the Trump Administration shows its willingness to take even more radical anti-choice positions than past Republican administrations.
Photo: Steenaire / CC BY 2.0
GJC President (acting) Akila Radhakrishnan is quoted in an article on Women Under Siege on a US official stating at the UN that the US is a "pro-life nation."
GJC President (acting) Akila Radhakrishnan quoted in article in the Independent, on a US official saying at a UN meeting that the US is a "pro-life nation." Read here.
Read Akila Radhakrishnan's Speech at the Feminist Majority Foundation's 2018 National Young Feminist Leadership Conference
2018 National Young Feminist Leadership Conference
March 17, 2018 Washington, DC
Text of Preparted Remarks
"I think we all remember the image of Donald Trump, on his third day in office, surrounded by a group of white men, with Mike Pence looking anxiously over his shoulder, signing an executive order stripping women and girls around the world of their access to safe abortion services. And he didn’t just do it like Presidents before him—like Regan and George W. Bush—he did it bigly.
Today on International Women’s Day, the Global Justice Center Presses Forward for New Rights for Women
FOR IMMEDIATE RELEASE -March 8, 2018
[New York]– On International Women’s Day, the Global Justice Center stands with women and girls raped in conflict. As a direct result of the abortion restrictions the US puts on its foreign aid, including the Trump Administration’s expanded Gag Rule, women in conflict are regularly denied the medical care they are entitled to and need.
FOR IMMEDIATE RELEASE -March 2, 2018
[New York]– Today marks the one-year anniversary of the day when governments all over the world came together and created the She Decides initiative to combat the impact of the Trump administration’s expanded Global Gag Rule. She Decideshas raised over $450 million to date to support women’s sexual health and reproductive rights, however estimates show that the Gag Rule may impact over $2.2 billion in funding per year.
GJC sends a mid-term report submission for the Universal Periodic Review of the United States of America. The report examines the restrictions that the US puts on foriegn aid regarding the provision of abortion services and the ways those restrictions violate international law.
FOR IMMEDIATE RELEASE -February 9, 2018
[NEW YORK] On Wednesday, the State Department released a six-month review on the impact of the Global Gag Rule (or as the White House calls it, the “Protecting Life in Global Health Assistance” policy.) This review is both limited in scope and extremely premature, as insufficient time has passed to assess the impact of the policy and draw conclusions.
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.
Ninety humanitarian and human rights groups call on European Commission to provide abortion services to women and girls in war zones
FOR IMMEDIATE RELEASE -November 23, 2017
[NEW YORK and GOMA]– On Saturday, the world celebrates the International Day for the Elimination of Violence against Women. In anticipation of this day, a global coalition of ninety civil society organizations calls on the European Commission to ensure that abortion, a medical procedure, is included in the medical care offered to women and girls, particularly in areas where rape is used as a weapon of war.
Humanitarian and Human Rights Groups send Letter to the European Commission on Abortion Services for Women and Girls in War Zones
November 23, 2017: Joint letter from 90 humanitarian and human rights to the European Commission calling on them to provide abortion services to women and girls in war zones.