Preventing foreign NGOs from speaking about abortion is bad policy

On Jan. 23, President Donald Trump reinstated the "Mexico City Policy" and threatened he might expand the policy. What, you ask, is a policy named after a place the president has been knocking for months? It is an on-again, off-again foreign policy of the government denying aid to foreign non-governmental organizations that "perform or actively promote abortion as a method of family planning." In 1984, President Ronald Reagan first announced the policy at the United Nations International Conference on Population held in Mexico City. Since that date Democratic presidents have rescinded the policy, twice, and Republican presidents have restored it, twice now. At stake recently is the distribution of $600 million, foreign aid meant by Congress "to increase the motivation � for family planning and to reduce the rate of population growth." The president has the authority to provide the aid "on such terms and conditions as he may determine." 22 U.S.C. § 2151b(b). The president has delegated the authority to the administrator of the Agency for International Development. To carry out the policy the administrator inserts a clause in every family planning contract with a foreign NGO. The clause restrains the foreign NGO from "providing advice and information regarding the benefits and availability of abortion," "encouraging women to consider abortion," and "(l)obbying a foreign government to legalize or make available abortion." These restrictions apply to the entire organization, not just the project or division of the foreign NGO receiving the family planning funds. The sweep of the restrictions have earned the policy another, and more appropriate, moniker - the global gag rule. Family planning funds may be awarded to a domestic NGO, which then acts as a conduit, distributing the funds to foreign NGOs. A domestic NGO doing so must promise, as a condition of receipt, that it "will not furnish assistance under the grant" to a foreign NGO that performs or actively promotes abortion-related activities. Planned Parenthood is a domestic NGO which acted as a conduit. In 1986, it assisted 103 foreign family planning organizations, drawing on grants totaling $17.7 million. It refused to accept the condition. Instead it and several citizens living abroad challenged the policy in court. The plaintiffs argued the policy exceeded the authority granted by Congress and violated their First Amendment rights to speak about the availability and benefits of abortion and to associate with like-minded foreign persons. They lost. Planned Parenthood Fed. v. Agency for Intern. Dev., 838 F.2d 649 (2nd Cir. 1988) (statutory claim dismissed); Planned Parenthood Fed. v. Agency for Intern. Dev., 915 F.2d 59 (2nd Cir. 1990) (constitutional claim dismissed). On the statutory claim the court said Congressional intent was clear. The president is not required to assist all family planning programs that apply. He has "broad discretionary authority" to decide which programs to fund. The only limitation set by Congress was the aid itself could not be used to pay for the performance of abortions. Since Congress did not specifically address the use of nonfederal funds to pay for abortion-related activities, the president could and did through the policy. On the constitutional claim, the court agreed with the government it lacked the power to review the content of the policy. Foreign affairs is an area constitutionally committed to the president. However, the court would consider the legality of the clause inserted in every family planning contract and the requirements associated with the clause. The court held the clause and the requirements advanced a substantial governmental foreign policy interest and had only an "incidental effect" on the exercise of the plaintiffs' rights. The plaintiffs may not be able to associate with like-minded foreign NGOs, but they were still free to use their own funds "to establish an abortion-related facility" in a country "next door" to a family planning clinic operated by a foreign NGO receiving restricted aid dollars from the United States. In practice the policy has forced NGOs, who reject the clause, to close clinics in places like Kenya. Patients lose out on family planning services and a host of other services critical to the area, such as HIV/AIDs counseling. The studies on the impact of the policy are few, but they suggest the policy has increased pregnancies and abortions in sub-Saharan Africa, not what Congress wanted. Such was the state of the policy until May 15. On that date the secretary of state made the president's threat a reality. He expanded the policy to foreign NGOs receiving any type of health assistance from the United States, not just family planning assistance. Now organizations battling infectious diseases, such as HIV/AIDS, malaria, and Zika, and working to improve nutrition, hygiene, and maternal and child health must refrain from engaging in truthful speech about abortion or lose their aid. The amount of aid at stake mushroomed from $600 million to $8.8 billion. The statutes granting the president the authority to set the terms and conditions on the receipt of the other health aid may or may not be as broad as the family planning aid statute. Time and the courts will tell. If the president does have the statutory authority, the Planned Parenthood decisions tell us the First Amendment probably does not act as a bar to the expansion of the policy. We will be in a situation where the government is censoring evermore the private speech of foreign organizations as a condition of government funding. This the government cannot do to domestic organizations. And this is an unworthy goal of our government and contrary to the values of the First Amendment. ----- Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com. Published: Fri, Jul 28, 2017