Part 1: The Helms Amendment and Freedom of Speech
This is the first of a two-part post exploring how U.S. restrictions on abortion-related speech, activities, and funding violate U.S. human rights obligations under the ICCPR. 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).[i]
U.S. Restrictions on Freedom of Speech Violate International Law
Although experts and advocates have highlighted the harmful effects of abortion restrictions on global health, little attention has been paid to the legality of U.S. abortion speech restrictions, especially under international law. ICCPR Article 19(3) only allows for restrictions on the right to freedom of speech where they: (1) are provided by law; (2) serve a legitimate aim; and (3) are necessary and proportionate to achieving that aim. U.S. abortion speech restrictions fail to meet each prong of this test.
First, for a restriction to be adequately “provided by law,” the Human Rights Committee (HRC) has explained that it must be accessible to the public, be formulated with precise language that allows individuals to regulate their conduct, and not allow “unfettered discretion” to those charged with its execution.[ii]
Studies have found that restrictions placed on speech that “motivate[s]” (Helms) or “lobb[ies] for or against” (Siljander) abortion do not provide impacted individuals and organizations with sufficient clarity on what speech and activities remain allowed, which creates a chilling effect on abortion-related speech. For example, the U.S. Agency for International Development (USAID) has in the past attempted to censor statistics on unsafe abortion, maternal mortality, and abortion legalization in other countries—neutral speech that falls outside the scope of the Helms Amendment. The U.S. Government Accountability Office detailed grantees’ similar confusion predicting compliance with the Siljander Amendment in a 2011 report. Because agency decisions, rather than the “law itself,” “establish the conditions under which the rights may be limited,” the restrictions allow agencies unfettered discretion in determining compliance.
In addition to being adequately provided by law, any permissible limitation on speech must serve a legitimate aim. ICCPR Article 19 establishes that the only aims that can justify restricting speech are respect for the rights or reputations of others or the protection of national security, public order, public health or morals.
The U.S. has not provided a “legitimate aim” to justify its restrictions on abortion-related speech. The Helms Amendment, for example, was enacted to limit the use of U.S. resources for abortion in the wake of the U.S. Supreme Court’s recognition in Roe v. Wade that abortion was a fundamental constitutional right. This objective does not fit within the limited aims described by Article 19.
Finally, any restriction on the right to free speech must be necessary and proportionate to achieving a legitimate aim. The HRC has described necessity as demonstrated “by establishing a direct and immediate connection between the expression and the threat,” and proving that there are no less intrusive means by which to achieve the relevant aim. The necessity inquiry includes a comparison of the harm inflicted by restricting speech against the identified interest protected to ensure proportionality.
The restrictions on abortion-related speech imposed by Helms and Siljander create a harm that is far disproportionate to any interest they purport to protect. In addition to preventing pregnancy counseling by medical professionals, the restrictions also restrain foreign countries from engaging in essential debate about a particular human right. USAID includes the restrictions as standard clauses in contracts with foreign governments, requiring their application to all “democracy and governance activities that will support constitutional or any health-related legislative reform.” In Kenya, for example, USAID’s Kenya mission advised Kenyan grantees against attending a 2013 Ministry of Health meeting on reducing maternal mortality because attendance would likely fall under “restricted activities” of the Helms and Siljander Amendments. As the European Court of Human Rights noted in Open Door and Dublin Well Woman v. Ireland (1992), the risks created by sweeping prohibitions that limit women’s access to information crucial to their health are severe and disproportionate.
U.S. restrictions on abortion-related speech violate the freedom of speech protected by ICCPR Article 19 because they are impermissibly vague, do not serve a legitimate aim, and impose disproportionate harm on those seeking information on and access to a particular human right. In so doing, the restrictions impede debate that might otherwise allow countries to comply with recommendations made by international human rights bodies to decriminalize abortion services and advance public health outcomes in their own countries.[iii]
GJC’s full brief is available here.
[i] See Global Justice Ctr., International Humanitarian Law and Access to Abortion (2017) for a compilation of citations recognizing access to safe abortion as protected non-discriminatory medical care under international humanitarian law.
[ii] Human Rights Comm., General Comment No. 34 on Article 19: Freedoms of Expression and Opinion, ¶¶ 24-25, U.N. Doc. CCPR/C/GC/34 (Sept. 12, 2011); Human Rights Comm., General Comment No. 27 on Article 12: Freedom of Movement, ¶ 13, U.N. Doc. CCPR/C/21/Rev.1/Add.9 (Nov. 1, 1999).
[iii] See, e.g., Concluding Observations – Poland (2004), CCPR/CO/82/POL, ¶8; Concluding Observations – Guatemala (2001), CCPR/CO/72/GTM, ¶19; Concluding Observations – Nicaragua (2008).
Photo is from Global Justice Center.