By MWIINE Andrew Kaggwa
In this article, I continue to explore the reproductive health issue, focusing on the Global Gag Rule (GGR) and its effects on reproductive rights. It is essential to understand the meaning and context of the GGR. There are general restrictions on what NGOs receiving U.S. funding can do with the funding as codified in U.S. statutory law through amendments to the U.S. Foreign Assistance Act 1961, commonly known as the Helms and Siljander Amendments.
These restrictions generally prohibit the use of U.S. foreign assistance for abortion-related activities. However, these restrictions are not the Global Gag Rule (GGR).
The Global Gag Rule (GGR), also known as the Mexico City Policy or Protecting Life in Global Health Assistance, is a restriction on speech, information, and service provision. Under this policy, foreign organizations are prohibited from using U.S. global health funding or any other funds to offer counsel, refer, or advocate for abortion as a method of family planning, anywhere in their programming, anywhere in the world. When the GGR is in effect, foreign NGOs must decide whether or not to comply with it in exchange for U.S. funding. NGOs that cannot or will not comply with the GGR lose their U.S. funding.
It should be understood that the GGR is a presidential memorandum that becomes a contract provision for organizations. It is not legislation, and neither is it an international treaty or convention.The U.S. president alone can rescind or reinstate the policy. However, Congress may pass legislation preventing a future president from unilaterally imposing the GGR (which has never been done).
What the policy prohibits. Among the many activities prohibited by the Global Gag Rule (GGR) include: provision of abortion as a method of family planning, Counseling and referrals for abortion as a method of family planning, Conducting public information campaigns on the benefits or availability of abortion and advocating for the liberalization of abortion laws or lobbying for the continued legality of abortion.
What is permissible?
Abortion in cases of rape, incest, or life endangerment.
Post abortion care (PAC) and emergency contraception are allowed.
Passive Referral: this includes responding to a question regarding where a safe, legal abortion may be obtained if the health care provider reasonably believes that the ethics of the medical profession in the host country requires a response regarding where it may be obtained safely and legally.
The only entities that have historically been exempted from the GGR are;
Government to Government Funding: this means that such entities are eligible to U.S. global health assistance even if they engage in abortion-related activities, provided they kept the U.S. funds separate from the funds supporting such activities.
U.S NGOs: though it has not applied to U.S. NGOs, they were obligated to ensure that their foreign sub-recipients of U.S. funds certify and adhere to the GGR.
Multilateral Organizations: Public international and other multilateral organizations have also been exempted from previous versions of the GGR.
Noteworthy is the fact that most of these exemptions may not continue to apply if a future GGR is guided by the framework proposed in Heritage Foundation’s Project 2025.
What is the Impact of the GGR?
The GGR is not just an Abortion Restriction! Even though it has often been presented that way, the policy significantly impacts fundamental rights, including healthcare, freedom of association, freedom of speech, and even national sovereignty. The GGR ultimately weakens health and legal systems.
Some of the documented health harms arising from the GGR include access to contraception, negative impacts on WASH programs, GBV programs (discontinued due to funding), maternal and child health. PLHIV programs, nutrition, universal health coverage, voluntary medical male circumcision (VMMC) programs, mental health programs and harms to the healthcare force.
Because of the reduced access to contraception due to the GGR, there are increased unsafe abortions whenever the GGR is in place.
There have been several legal challenges to the GGR in U.S. courts, but all of them have been unsuccessful. The cases include Alan Guttmacher Institute v. Agency for International Aid (1984), DKT Memorial v. USAID (1990), and Center for Reproductive Law and Policy (CRLP) v. USAID (2001). These cases were primarily based on the U.S. Constitution’s First Amendment’s right to speech and association.
The court dismissed all the challenges based on a number of factors, including the fact that the claimants (U.S. NGOs) were not directly impacted by the GGR restrictions and were not prohibited from using their private funds for abortion-related activities, nor were they required to promote the GGR with their own funding.Under the Trump administration, the GGR was in effect but was removed by President Biden on January 28, 2021.
The U.S. political and human rights landscape has rapidly deteriorated considering the U.S. Supreme Court ruling in Dobbs v. Jackson, which overturned the federal right to abortion established in Roe v. Wade and the subsequent state abortion criminalization laws.The ruling in Dobbs v. Jackson is likely to be misused by courts and governments outside the U.S.
Recently, the Ugandan Constitutional Court, addressing the constitutionality of Uganda’s Anti-Homosexuality Act 2023, cited this case as one “of the recent developments in human rights jurisprudence… where the court considered the nation’s history and traditions, as well as the dictates of democracy and rule of law, to overrule the broader right to individual autonomy.”
What Next? (We should brace for the potential return of the GGR and be prepared for it). Project 2025 is led by the Heritage Foundation and endorsed by +100 other groups, outlining proposals for the next Republican/Conservative administration.
This project covers diverse areas, including foreign policy, and some of its sections were drafted by previous Trump officials.
The suggested project areas proposed are explicitly anti-democratic, in specific regard to foreign policy. The report demands GGR expansions to all U.S. foreign assistance, including humanitarian aid, democracy and human rights funding, multilateral organizations, directly to U.S. NGOs, and government-to-government funds.
Expansion of the GGR is intended to be part of the broad anti-gender actions, disrupting international treaties, including the Maputo Protocol and aligning foreign policy with the Commission of Unalienable Rights by erasing all sexual and reproductive health and rights.
We should also expect a transgender gap rule in foreign assistance, which will be turned into a separate executive action. Overall, the Global Gag Rule should be watched in the next few years, especially if the Republican Party takes the vote come November. National Civil Societies should watch and prepare for this re-ignition of the GGR so that they decide on whether to take on the necessary evil or be gaged for the good of their project fund.
Written by:
MWIINE Andrew Kaggwa
Year II Semester II, School of Law
Deputy Attorney General. 30th Guild Government
