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

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

Advertisements