Author: Akila Radhakrishnan & Kristin Smith

Exporting Censorship: How U.S. Restrictions on Abortion Speech and Funding Violate International Law, Part 2

/ Akila Radhakrishnan & Kristin Smith / 1 Comment

GlobalJusticeCenter_GagRule

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. Continue reading →

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Exporting Censorship: How U.S. Restrictions on Abortion Speech and Funding Violate International Law, Part 1

/ Akila Radhakrishnan & Kristin Smith / 1 Comment

GlobalJusticeCenter_WhiteHousePart 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] Continue reading →