The Revival of the Mexico City Policy Penn State Law Review Online Companion Penn State Law Review

The Revival of the Mexico City Policy

By Shani Walker

Published 4/1/2017

The growing concern among Americans is whether U.S. funding will be used to subsidize abortion services in other foreign nations. However, there are laws currently in place that restrict funding to institutions that provide abortion-related services, research toward abortion-related services and lobbying for abortion-related services.

The use of U.S. funds for abortion has been illegal since 1973, after Congress enacted the Helms Amendment. Similarly, Congress passed the Biden Amendment, which restricts biomedical research related to methods of or performance of abortion as a means of family planning. The Siljander Amendment also restricts lobbying for or against abortion.

What is the Helms Amendment?

Congress passed the Helms Amendment, which is an amendment to the Foreign Assistance Act, in 1973. This amendment was passed after the Roe v. Wade decision and ruled unconstitutional a state law that banned abortions except to save the life of the mother. The amendment prohibits U.S. foreign aid from being used to provide abortions or to convince women to have abortions as a method of family planning. The language of the amendment states, “No foreign assistance funds may be used to pay for the performance of abortion as a method of family planning or to motivate to coerce any person to practice abortions.” The language of the amendment leaves no room for exceptions for instances of rape, incest or threat of physical harm. Following the enactment of these laws, Congress sought to restrict funding to international organizations in fear that such funding may be used to subsidized abortion related services. Ultimately, the Mexico City Policy was created.

What is the Mexico City policy?

The Mexico City Policy is a U.S. government policy that requires non-governmental organizations (NGOs) to certify that they will not “ perform or actively promote abortion as a method of family planning” with funds from countries other than the U.S. as a requirement for receiving U.S. funding. Within the text of the policy, the language clearly stated, “[T]he United States will no longer contribute to separate nongovernmental organizations which perform or actively promote abortion as a method of family planning in other nations.”[i] Typically the enactment of the Mexico Policy has been at the discretion of the current U.S. President; however, Congress has the power to institute this policy through legislation. Previous republican presidential administrations have enacted the policy since its inception in 1985, while previous democratic presidential administrations have chosen not to. Congress enacted the policy during Former President Bill Clinton’s term for a short period from Oct. 1999 through September 2000.

How does this Administration’s Enactment differ from Previous Administrations?

Typically, the policy applied to foreign NGOs that received U.S. family planning support. Previous enactments of the policy, by either republican or democratic administrations, did not apply to global HIV/AIDS programs and multicultural organizations. NGOs are defined as international NGOS outside of the US, regional NGOS based within the U.S. and local NGO’s in assisted countries.

President Trump’s recent enactment of the policy requires all NGOs receiving U.S. global health assistance to follow the guidelines within the Mexico City Policy.  Previous versions of the Mexico City policy applied to certain U.S. international funding streams: family planning assistance through the U.S. Agency for international Development USAID.[ii] The recent presidential memorandum expands the policy’s application to include all agencies and departments that receive funding for global health initiatives. Organizations such as the USAID; the Department of State, specifically the Office of Global AIDS Coordinator; the Center for Disease Control and Prevention (CDC); The National Institutes of Health (NIH); and the Department of Defense (DOD).

What is the effect of Trump’s policy on World Organizations that accept US Funding?

While there have not been any reports of the immediate effects that have taken place, experts fear that a chilling effect may be widespread.[iii] A chilling effect occurs when conduct is suppressed by fear of penalization at the interests of an individual of group.[iv] Essentially NGO’s would refrain from engaging in activities that are within their right to engage in because they fear losing necessary U.S. funding.

The Mexico City Policy allows NGOs to provide advice and information about performing, or offering referral for abortion in cases where the pregnancy has either posed a risk to the life of the mother or resulted from incest or rape; and responding to questions, from a woman who is visibly pregnant, about where to obtain legal abortion after she has decided to have a legal abortion. However, many organizations fear losing funding so they are more likely not offer or even mention the above. Experts believe the chilling effect on NGOs will have an adverse effect on women in countries where adequate healthcare is already hard to obtain. While the enactment of the Mexico City policy is not new, the restrictions on funding coupled with the chilling effect on NGOs may change the outcome of women’s healthcare in foreign nations.

 

[i] “Policy Statement of the United States of America at the United Nations International Conference on Population (Second Session), Mexico City, Mexico, August 6-14, 1984,” undated.

[ii] George W. Bush Administration, “Subject: Assistance for Voluntary Population Planning,” Memorandum for the Secretary of State, August 29, 2003, Bush Administration White House Archives, http://georgewbush-whitehouse.archives.gov/news/releases/2003/08/20030829-3.html.

[iii]Preventing unsafe abortion. (n.d.). ,

http://www.who.int/reproductivehealth/topics/unsafe_abortion/magnitude/en/

[iv] Legal, I. U. (n.d.). USLegal.

https://definitions.uslegal.com/c/chilling-effect/

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