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

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

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

Conservative mobilization and adolescent pregnancy in Latin America

by Camila Gianella, Marta R. de Assis Machado and Angélica Peñas Defago

On September 27, 2017, the Brazilian Supreme Court – in a 6 to 5 judgmentdecided that public schools can have “confessional” (Catholic) religious teaching in their curriculum. The constitutional case had been proposed by the Attorney General, who argued that current practice – that privileges Roman Catholic indoctrination – would violate the separation between Church and State as well as religious freedom. Although the judgment brings severe consequences to education rights in Brazil, it is only one example of the recent battles by conservative religious groups to influence Brazilian public education. The Catholic church has a long history of interference in Roman Catholic countries, aiming to block comprehensive sex education in schools. More recently, other churches and conservative groups have adopted similar strategies to influence educational policies in Brazil and elsewhere in Latin America.

In 2011, a school booklet advocating “Schools without Homophobia,” prepared by the Brazilian Ministry of Education, was recalled after strong pressure from conservative movements, evangelical and Catholic leaders. It was denounced as an instrument to promote homosexuality among children and to destroy families. In 2014, the debate over Brazil’s National Education Plan was the battlefield of conservative and religious groups against what they called “gender ideology”. Supported by civil society mobilization, including a organization (ironically) called Escola sem Partido [Schools without Politics] conservative members of congress overruled a clause in the Brazilian National Education Plan that stated, among the goals of the public educational system, overcoming educational inequalities, with emphasis in the promotion of equality among races, regions, genders and sexual orientations. Vocal critics of anti-discriminatory public policies in education also applied political pressure during the discussion and passing of state and municipal education plans.

Brazil is only one example of a new wave of conservative mobilization that is sweeping Latin America, characterized by the gathering of powerful old economic elites and religious conservative groups. Among its central political strategies, this new wave fights against the inclusion of a gender equality approach in public policies, including school curricula among their principal battlegrounds. Across the region, this movement has won many major disputes with significant impact. They have succeeded on blocking gender approaches and comprehensive sexual education not only in Brazil, but in the Argentinian provinces of Mendoza and Entre Rios, in Monterrey (Mexico), Panama, Paraguay, Peru, and even in the most secular country in the region, Uruguay.
As our forthcoming letter to the Editor of The Lancet (2017) explains, this new wave of conservative mobilization has tangible health effects. By opposing sexual education in the schools as well as the introduction of a gender equality approach within the school curricula, they hinder a core element of public health strategies to empower girls and adolescents, and consequently to prevent teenage pregnancies, which have a devastating negative impact on women, by, for example, contributing to female poverty.

Latin America is already the only region in the world where adolescent pregnancies are not decreasing. . . . Continue reading

On the Job! LSRJ Reproductive Justice Fellowship Program (deadline 3 Nov.)

Applications for the Law Students for Reproductive Justice (LSRJ) 2015-16 Reproductive Justice Fellowship Program (RJFP) is now available.

RJ Federal Fellows will be placed at nonprofit organizations in Washington, D.C. to work to advance reproductive  justice through law and policy. RJ-HIV Fellows will be placed at SisterLove (Atlanta, GA) or Positive Women’s Network – USA (Oakland, CA) and will work at the intersection of RJ and HIV issues.

Application deadline is Monday, November 3, 2014 at 5:00pm PT.

Please visit the RJFP website to fill out the online form and download the applications.

For more information about the RJFP, including bios of current and past Fellows and a list of 2014-15 Placement Organizations, please visit the RJFP homepage. Questions? Email RJFP@lsrj.org.