Part 2: The Global Gag Rule and Freedom of Association

This is the second of a two-part post illustrating how U.S. abortion restrictions violate the ICCPR’s requirements for lawful restrictions on the freedom of speech and association, which is examined in more detail in the Global Justice Center’s recent brief. Although the Helms and Siljander Amendments (discussed in Part 1) also violate the freedom of association in various ways, this post focuses on the Global Gag Rule and its unique effects on the freedom of association.

The Global Gag Rule Strikes Again

Over one year has passed since the Trump administration announced it was expanding the Global Gag Rule (Gag Rule) (also known as the “Mexico City Policy” and now “Protecting Life in Global Health Assistance”) to cover all U.S. global health assistance funding—a significantly larger amount of foreign aid than previous iterations. The expanded Gag Rule (an executive branch policy) prohibits foreign NGOs that receive U.S. global health assistance funding from “perform[ing] or actively promot[ing] abortion as a method of family planning,”[i] and from using funding from any source (whether foreign or domestic) to carry out abortion-related activities, including counseling, referrals, advocating for increased access to abortion, or lobbying to legalize abortion. By continuing to prevent foreign NGOs from using any of their funding for these activities, U.S. policy violates international law protecting the freedom of association by preventing work and advocacy on a particular human right.

The Right to Freedom of Association Includes Access to Funding

ICCPR Article 22 guarantees the right to freely associate with others, including an association’s right to carry out all its statutory activities. As described in detail in the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association’s 2013 report, the right to access funding and other resources is essential to associations’ existence and effectiveness, and is thus also protected by Article 22. International law does not distinguish between sources of funding, and recognizes that associations have the right to seek funding from domestic, foreign, and international sources alike. Like those on freedom of speech, restrictions on the freedom of association are only permitted where they are provided by law, serve a legitimate aim (to respect the rights or reputations of others or to protect national security, public order, public health or morals), and are necessary in a democratic society and proportionate to achieving that aim. The Gag Rule exemplifies how U.S. restrictions on abortion speech, activities, and funding violate the ICCPR’s requirements for restrictions on the freedom of association.

U.S. Restrictions on Freedom of Association Violate International Law

The Special Rapporteur on the Situation of Human Rights Defenders has explained that restrictions are “provided by law” when they are accessible to the public, understandable, and applied consistently to ensure fairness and transparency.

The State Department’s recent six-month review of the reinstated Gag Rule noted that grantees remain confused about the policy’s application. In the past, confusion about the parameters of prohibited abortion-related speech and activities chilled grantees’ activities and partnerships and resulted in self-censorship beyond what is required by the restrictions, as NGOs feared their activities being characterized as “promoting” abortion. However, despite requests for clarification and persistent confusion among grantees, U.S. agencies charged with implementing the Gag Rule continue to advise on compliance on a “case-by-case basis,” which lacks fairness and transparency.

The Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association has noted that neither the protection of national values nor the desire to ensure the “effectiveness” of aid are considered “legitimate” aims, as government requirements that associations align with their priorities “contradict one of the most important aspects of freedom of association, namely that individuals can freely associate for any legal purpose.” In domestic litigation involving the Gag Rule and similar restrictions, the United States has attempted to justify funding restrictions on these grounds,[ii] which do not comply with the ICCPR.

Restrictions are not “necessary in a democratic society” if there are less intrusive ways to achieve the aim, if the restrictions are not directly connected to achieving the aim, or if the harm is disproportionate to the interest protected. It is perhaps most telling that the U.S. government does not even consistently deem the Gag Rule “necessary”—it is a political policy reinstated and rescinded along partisan lines. The Gag Rule is also ineffective, and its detriment to public health[iii] and to impacted organizations is disproportionate to any protected interest. A 2011 study found that abortion rates actually increased in sub-Saharan Africa when the Gag Rule was reimposed, as organizations supporting family planning and contraceptive access were forced to reduce programming. The burden and risk imposed on organizations subject to the Gag Rule (also recognized in the State Department’s review) is comparable to those created by lengthy or arbitrary registration requirements, which the Special Rapporteur on the Situation of Human Rights Defenders has described as violating the freedom of association.

By censoring abortion-related speech, public debate, legislative reform, advocacy, and funding, U.S. abortion restrictions “violate the key democratic principles of ‘pluralism, tolerance, and broadmindedness.’” These violations are not merely theoretical—because of U.S. policy women and girls all over the world are denied their rights to access safe abortion services, and both individuals and organizations are denied their rights to associate to defend and protect those rights.

GJC’s full brief is available here.

[i] Instances where abortion is performed or promoted in cases of rape, incest, and the life of the mother are not considered to be taken “as a method of family planning.”

[ii] See, e.g., D.K.T. Int’l, Inc. v. U.S. Agency for Int’l Dev., 477 F.3d 758, 762 (D.C. Cir. 2007) (“effectiveness of the government’s viewpoint-based program would be substantially undermined” if organizations could pursue activities supported by opposing viewpoints with private funds); Agency for Int’l Dev., v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2331 (2013); Planned Parenthood Fed. of Am., Inc., v. Agency for Int’l Dev., 915 F.2d 59, ­­­­65 (2d Cir. 1990).

[iii] See, e.g., Sneha Barot & Susan A. Cohen, The Global Gag Rule and Fights over Funding UNFPA: The Issues that Won’t Go Away, Guttmacher Pol’y Rev., Spring 2015, at 27, 29-30; Mehlika Hoodbhoy, Martin Flaherty & Tracy Higgins, Exporting Despair: The Human Rights Implications of U.S. Restrictions on Foreign Health Care Funding in Kenya, 29 Fordham Int’l L.J. 1 (2005); Skye Wheeler, Cruel Choices: How Trump’s Global Gag Rule Hurts the Fight Against HIV, Human Rights Watch (Dec. 8, 2017).