Harvard Symposium: Comparative Legal Perspectives on Statutory Abortion Rights

Panel 2: Judicial and Constitutional Approaches

  • Professor Joanna Erdman (Schulich School of Law, Dalhousie University)

  • Melissa Ayala García (GIRE)

  • Dr. Christine Ryan (Global Justice Center)

  • Professor Mary Ziegler (Harvard Law School)

  • Moderator: Professor Rachel Rebouché (Temple University Beasley School of Law)

Series #2: Democracy Without Sexual and Reproductive Rights is an Empty Promise

In December 2021 the United States hosted a virtual Summit for Democracy, bringing together leaders from government, civil society, and the private sector to discuss challenges and opportunities facing democracies and to make commitments to defend democracy and human rights at home and abroad. The Summit kicked off a year of action and opportunities for engagement, which will culminate with a second, in-person Summit to showcase progress and plan a path forward.

During this year of action, the Global Justice Center and Fòs Feminista are hosting a series of events highlighting the ways in which governments' commitments to advancing the sexual and reproductive health and rights of people all around the globe is a key indicator of the strength and health of vibrant democracies that respect the human rights of all people. This panel is the second in the series and will take place during the 66th session of the Commission on the Status of Women (CSW), with the priority theme of achieving gender equality in the context of climate change.

The panel will highlight connections between current global challenges, including climate change, conflict, and the rise of authoritarianism, and the role of sexual and reproductive health and rights. It will provide an opportunity to hear from leading experts on the role of sexual and reproductive rights in democracies, the relationship between authoritarian governments and control of bodily autonomy, challenges facing the international human rights framework and multilateral spaces including the United Nations, the anti-rights Geneva Consensus Declaration, shifting the conversation on climate policies, and how states can realize their commitment to sexual and reproductive health and rights at home and abroad.

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Enabling access to quality abortion care: WHO's Abortion Care guideline

Fundamental to meeting the Sustainable Development Goals (SDGs) on health and wellbeing (SDG3) and gender equality (SDG5) is the recognition that access to sexual and reproductive health information and services is central to both individual and community health, as well as the realisation of human rights. Comprehensive abortion care, which includes information provision, abortion management, and post-abortion care, is an integral component of sexual and reproductive health and is a safe, simple health-care intervention that saves women's lives and safeguards their dignity and bodily autonomy.

Globally, abortion remains common, with 30% (three out of ten) of all pregnancies ending in induced abortion. However, estimates suggest that just over half (55%) of all abortions worldwide (and less than a quarter of all abortions in African and Latin America) can be considered as safe. Barriers—such as the scarcity of accurate information or providers and facilities that can safely provide services, restriction of available methods of abortion, abortion-related stigma, high costs, third party consent and other legal restrictions—have made it difficult or impossible for many women to access abortion care, which can lead them to use unsafe methods and negatively affect their sexual and reproductive wellbeing and health.

Fulfilling one of its core functions as a norms-setting agency, WHO has been providing recommendations related to abortion since 2003. With the release of the WHO Abortion Care guideline in March, 2022, WHO has consolidated and updated its recommendations, drawing on the evidence and data on the clinical, service delivery, legal, and human rights aspects of providing abortion care that have arisen over the past 10 years. In line with the WHO guideline process, formulation of recommendations by expert panels was based on available evidence and consideration of other criteria using the WHO-INTEGRATE framework. As a result, 54 evidence-based recommendations and two best practice statements focusing on the above-mentioned aspects of abortion care are presented in this updated guideline.

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WHO issues new guidelines on abortion to help countries deliver lifesaving care

The World Health Organization (WHO) is releasing new guidelines on abortion care today, in a bid to protect the health of women and girls and help prevent over 25 million unsafe abortions that currently occur each year.

“Being able to obtain safe abortion is a crucial part of health care,” said Craig Lissner, acting Director for Sexual and Reproductive Health and Research at WHO. “Nearly every death and injury that results from unsafe abortion is entirely preventable. That’s why we recommend women and girls can access abortion and family planning services when they need them.”

Based on the latest scientific evidence, these consolidated guidelines bring together over 50 recommendations spanning clinical practice, health service delivery, and legal and policy interventions to support quality abortion care.

New recommendations to improve access to high quality, person-centred services

When abortion is carried out using a method recommended by WHO, appropriate to the duration of the pregnancy and assisted by someone with the necessary information or skills, it is a simple and extremely safe procedure.

Tragically, however, only around half of all abortions take place under such conditions, with unsafe abortions causing around 39 000 deaths every year and resulting in millions more women hospitalized with complications. Most of these deaths are concentrated in lower-income countries – with over 60% in Africa and 30% in Asia – and among those living in the most vulnerable situations. 

The guideline includes recommendations on many simple primary care level interventions that improve the quality of abortion care provided to women and girls. These include task sharing by a wider range of health workers; ensuring access to medical abortion pills, which mean more women can obtain safe abortion services, and making sure that accurate information on care is available to all those who need it. 

For the first time, the guidelines also include recommendations for use where appropriate of telemedicine, which helped support access to abortion and family planning services during the COVID-19 pandemic.

Removing unnecessary policy barriers facilitates safe abortion access

Alongside the clinical and service delivery recommendations, the guidelines recommend removing medically unnecessary policy barriers to safe abortion, such as criminalization, mandatory waiting times, the requirement that approval must be given by other people (e.g., partners or family members) or institutions, and limits on when during pregnancy an abortion can take place. Such barriers can lead to critical delays in accessing treatment and put women and girls at greater risk of unsafe abortion, stigmatization, and health complications, while increasing disruptions to education and their ability to work.

While most countries permit abortion under specified circumstances, about 20 countries provide no legal grounds for abortion. More than 3 in 4 countries have legal penalties for abortion, which can include lengthy prison sentences or heavy fines for people having or assisting with the procedure. 

“It’s vital that an abortion is safe in medical terms,” said Dr Bela Ganatra, Head of WHO’s Prevention of Unsafe Abortion Unit. “But that’s not enough on its own. As with any other health services, abortion care needs to respect the decisions and needs of women and girls, ensuring that they are treated with dignity and without stigma or judgement. No one should be exposed to abuse or harms like being reported to the police or put in jail because they have sought or provided abortion care." 

Evidence shows that restricting access to abortions does not reduce the number of abortions that take place. In fact, restrictions are more likely to drive women and girls towards unsafe procedures. In countries where abortion is most restricted, only 1 in 4 abortions are safe, compared to nearly 9 in 10 in countries where the procedure is broadly legal. 

“The evidence is clear – if you want to prevent unintended pregnancies and unsafe abortions, you need to provide women and girls with a comprehensive package of sexuality education, accurate family planning information and services, and access to quality abortion care,” Dr Ganatra added.

Following the launch of the guidelines, WHO will support interested countries to implement these new guidelines and strengthen national policies and programmes related to contraception, family planning and abortion services, helping them provide the highest standard of care for women and girls.

2021-2026 Strategic Framework: Abortion is a Human Right

Our 2021-2026 Strategic Plan, launched in November of 2021, outlines three central goals for the organization. One of these centers on our work to ensure abortion access is respected, protected, and fulfilled as a fundamental human right.

To learn more about our vision for a gender-equal future that protects abortion and other rights, check out our Strategic Plan.

Submission to UN Special Rapporteur on Health — Abortion and Violence

The following is responding specifically to question 2 regarding how the legal framework defines, punishes, and provides redress for the relevant types of violence.

Denial of abortion is deeply entwined with violence as everything from risk factor to lack of redress. Indeed, the denial of abortion is itself a form of structural violence. Additionally, access to abortion bears a cyclical relationship with direct violence. Lack of access places people at greater risk for violence. Meanwhile, experiencing direct violence often increases the need and demand for abortion services. This is especially true in situations of conflict and mass violence.

This section outlines the international standards to which anyState must adhere in the context of mass or systemic sexual and gender-based violence (“SGBV”). They establish a minimum framework to actively ensure the right to health.

Access to abortion is necessary to meaningfully redress and prevent SGBV

The denial of abortion is an act of structural violence. It strips pregnant people of their rights, can cause severe physical and psychological harm, and prevents them from meeting their basic needs for healthcare. It is also inextricably linked to direct forms of SGBV, as both an outcome and a driver. There is an implicit logic that an increase in forced sex would yield an increase in unwanted pregnancies and demand for abortion access. Individually, denial of abortion reduces economic stability and independence, leaving people vulnerable to exploitation. Denial of abortion is also a form of discrimination and inequality, which are both root causes of societal instability, mass violence, and violence against women.

A primary goal of international law is to avoid irreparable harm and to “restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred.” Forcing a person to carry an unwanted pregnancy to term resulting from SGBV denies them restitution for that harm. The Secretary-General’s Guidance Note on Reparations for Conflict-Related Sexual Violence recommends access to safe abortion services as an administrative reparation program to respond to the immediate needs of survivors, particularly in the context of conflict and widespread violence. Repairing harm is a baseline, but reparations “cannot simply be about returning them to where they were before the individual instance of violence, but instead should strive to have a transformative potential.” Justice and accountability also bear a role in prevention, including through guarantees of non-repetition. Among other necessary measures, legislation is required to provide people who become pregnant as a result of rape, with the choice of safe and legal abortion.

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Amicus Brief - The Prosecutor v. Dominic Ongwen

Introduction

Having been granted leave to submit amicus curiae observations, we respectfully offer these observations about the Rome Statute’s definition of ‘forced pregnancy’. This is the first occasion that the Appeals Chamber will provide its interpretation of this crime, which was expressly listed in an international instrument for the first time in the Rome Statute.

The Rome Statute enumerates forced pregnancy as a crime against humanity and as a war crime in both international and non-international armed conflicts. The term ‘forced pregnancy’ is defined in Article (Art.) 7(2)(f) of the Rome Statute (RS), which states: ‘Forced pregnancy’ means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.

Our amicus curiae brief addresses three issues pertinent to this definition: the irrelevance of national laws relating to pregnancy when interpreting the Rome Statute’s definition of forced pregnancy; the elements of ‘forced pregnancy’ as a war crime and a crime against humanity; and the grounding of the crime of forced pregnancy in human rights that protect personal, sexual, and reproductive autonomy.

In doing so, we recall that the Court must interpret the Rome Statute and Elements of Crimes, including as they relate to forced pregnancy ‘consistent with internationally recognised human rights’ and ‘without any adverse distinction founded on grounds such as gender’ pursuant to Art. 21(3) RS. Additionally, the Court must interpret the Rome Statute in light of its object and purpose, namely, to 'put an end to impunity for the perpetrators of most serious crimes of concern to the international community as a whole’, including the full range of sexual and gender-based crimes enumerated in the Statute. In light of their expertise, amici also seek to provide guidance on internationally recognised human rights relating to personal, sexual, and reproductive autonomy, and explain their relevance to the interpretation of the Rome Statute’s crime of forced pregnancy.

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Democracy without Sexual and Reproductive Rights is An Empty Promise

On December 9-10, 2021 the United States will host a virtual Summit for Democracy, bringing together leaders from government, civil society, and the private sector to discuss challenges and opportunities facing democracies and to make commitments to defend democracy and human rights at home and abroad.

Fòs Feminista and the Global Justice Center in partnership with the Embassy of Canada, are hosting a side event on the margins of the 2021 Democracy Summit. Leading experts will discuss the role of reproductive rights in democracies, the relationship between authoritarian governments and control of bodily autonomy, the impact of US abortion restrictions around the world, and how the US can realize its commitment to sexual and reproductive health and rights at home and abroad.

Moderator:
Seema Jalan, Executive Director of the Universal Access Project and Policy at the United Nations Foundation

Opening Remarks:
Katherine Baird, Deputy Head of Mission, Embassy of Canada

Panelists:

  • Helena Chiquele, Oxfam, Mozambique
  • Amanda Nunes, Youth Leader, Anis, Brazil
  • Akila Radhakrishnan, President, Global Justice Center
  • Serra Sippel, Chief Global Advocacy Officer, Fòs Feminista

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Mississippi abortion ban tees up Supreme Court to overturn Roe

Excerpt of Courthouse News article mentioning a legal brief by the Global Justice Center.

Proponents of the abortion right say bans like that of Mississippi will not prevent the practice but instead just make it less safe. An amicus brief from Human Rights Watch, the Global Justice Center and Amnesty International says unsafe abortions are one of the leading causes of maternal mortality and morbidity. 

“The lesson for this case is clear: If an abortion ban like H.B. 1510 is upheld, more women in Mississippi are likely to die,” the brief states. 

If the court were to overturn Roe, abortion providers say low-income and minority women would be impacted the most. 

“You just shouldn't be able to have access to an abortion only based off on where you live or how much money you make and what access you have, but right now in the United States, that's what's going on,” Brewer said. 

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Intent to File on Forced Pregnancy - The Prosecutor v. Dominic Ongwen

Introduction

In response to the Appeals Chamber’s order, we respectfully seek leave to file amicus curiae observations on the Rome Statute’s definition of ‘forced pregnancy’, noting that this is the Appeals Chamber’s first opportunity to interpret this crime.

Expertise

Dr Rosemary Grey (lecturer, Sydney University Law School) is an expert in gender issues in international criminal law. Her publications include 13 peer-reviewed journal articles and her monograph Prosecuting Sexual and Gender-based Crimes at the International Criminal Court (Cambridge University Press, 2019). From 8 June to 8 September 2015, she worked with the ICC Office of the Prosecutor through the Internship and Visiting Professional Programme, where she assisted with legal research on topics including forced pregnancy. Women’s Initiatives for Gender Justice (WICJ) is an international women’s human rights NGO advocating for accountability for sexual and gender-based crimes through the ICC’s work, including with conflict affected communities in Uganda, since 2004. It is the successor of the Women’s Caucus for Gender Justice (1997-2003) that brought together over 300 women’s human rights advocates and organizations in the Rome Statute negotiations. Global Justice Center (GJC) is an international NGO advocating for justice and accountability for sexual and gender-based violence and violations of reproductive autonomy in situations including Syria, Myanmar, and others. Its 2018 report, Beyond Killing: Gender, Genocide, & Obligations Under International Law, was the first of its kind to offer a comprehensive gender analysis of the crime of, and international legal obligations surrounding, genocide. Amnesty International (AI) is a worldwide movement of people who campaign for internationally recognized human rights to be respected and protected, with over 50 years’ experience documenting and campaigning against human rights violations around the world.

First proposed argument: Irrelevance of national law

Art. 7(2)(f) of the Rome Statute states: ‘“Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.’ The Trial Chamber stated that the final sentence of Art. 7(2)(f) ‘does not add a new element to the offence – and is thus not reproduced in the Elements of Crimes – but allays the concern that criminalising forced pregnancy may be seen as legalising abortion. Mr Ongwen appears to argue that the Trial Chamber erred by interpreting the crime of ‘forced pregnancy’ without analysis of abortion laws in the state where the crimes occurred (Uganda). That argument is incorrect. National laws on abortion have no bearing on the Rome Statute’s definition of ‘forced pregnancy’. The second sentence of Art. 7(2)(f) does not make the ICC’s jurisdiction over ‘forced pregnancy’ dependent on national legislation, nor create an element of the crime. It simply affirms that the legality of the relevant conduct under national law is distinct from its legality under international law. This is true of all crimes in the Rome Statute, but was made explicit for forced pregnancy in order to satisfy states who were concerned that defining forced pregnancy as a crime in the Rome Statute would affect their legal ability to regulate abortion under national law. Thus, regardless of whether conduct amounting to ‘forced pregnancy’ is consistent with national law, an individual who commits such conduct could be prosecuted for ‘forced pregnancy’ as a war crime and/or crime against humanity under the Rome Statute (if the contextual elements for were met, and subject to the ICC’s jurisdiction and admissibility rules). Victims in states with strict abortion laws do not enjoy lesser protections under the Rome Statute than those in states with more liberal abortion laws.

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Joint Statement on Supreme Court Arguments in Texas Abortion Case

The following is a joint statement about the Texas abortion law by the Global Justice Center, Amnesty International USA, and Human Rights Watch;

The United States Supreme Court is holding oral arguments on November 1, 2021 on procedural questions related to challenges brought against an extreme anti-abortion law in the state of Texas. Key protections for the human rights of pregnant people in the United States are at stake.

In a recent brief to the court ahead of upcoming arguments on the state of Mississippi’s 15-week abortion ban, the Global Justice Center, Amnesty International, and Human Rights Watch made clear that abortion bans, such as the 6-week restriction in Texas, are inconsistent with international human rights protections.

Upholding the Texas ban – as well as Mississippi’s 15-week ban, set to be heard by the court in December – would place the US at odds with a worldwide trend toward expansion of abortion access.

From Mexico to Ireland, countries around the world have taken major steps to broaden access to abortion in recent years. A significant majority of women of reproductive age – almost 60 percent – now live in countries where abortion is generally available.

In addition, these state abortion bans place the US in direct violation of its human rights obligations. The rights implicated in these cases – to life, nondiscrimination, freedom from torture, and privacy – come from binding treaties the US has ratified. Even the anti-abortion group C-Fam acknowledged in its brief to the court that all nine independent expert bodies monitoring state compliance with major international human rights treaties have recommended that abortion should be made more available in the US.

This case is just the latest effort in the US anti-abortion movement’s campaign to make abortion inaccessible across the country. Whether in Texas, Mississippi, or Florida, these attempts violate the human rights of pregnant people in the US. If the US is to respect human rights, it needs to expand, not restrict, access to abortion.

Open Letter on Abortion Stigma

An Open Letter to Public Officials and Policy Makers:

As organizations advocating for reproductive health, rights, and justice, we urgently call on public officials and policy makers to use the word abortion. Abortion stigma—defined as associating a “negative attribute” towards people who provide, have had, or are seeking abortions—has facilitated the passage of radical laws like Texas SB 8, which bans abortion at approximately six weeks of pregnancy and has forced nearly all abortion services to an abrupt stop across the state. Failing to explicitly use the term abortion and reinforcing negative messages about self-managed or non-clinical abortion contributes to abortion stigma. It is more dire than ever that policy makers act now to protect access to care and make all possible efforts to break down abortion stigma, including using the term abortion.

Abortion is health care. Access to comprehensive sexual and reproductive health services, including access to abortion care, is essential to gender equity and equality. Abortion restrictions rely on and reinforce harmful stereotypes about gender roles and women’s decision-making instead of offering support, undermining their ability to control their own lives and well-being. When someone makes the decision to have an abortion, they should be able to access the care they need with respect and dignity, free from burdens, barriers, and stigma.

Even though abortion is common and a normal part of reproductive health experiences, with one in four women in the U.S. having an abortion in her lifetime, there remains considerable stigma about abortion. Consequently, public officials will sometimes refer to abortion as “women’s health” and the legal framework around abortion rights as “the right to choose”, “pro-choice” or “protecting Roe v. Wade.” Avoiding the word “abortion” reinforces abortion stigma and the notion that abortion is morally wrong, allowing opponents of abortion to define the moral narrative surrounding it.

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Dobbs v. Jackson Women's Health Organization - Amicus Brief

SUMMARY OF ARGUMENT

Near-categorical bans on abortions will have a significant, real, and negative impact on the health of pregnant individuals.

The worst such impacts will be borne by marginalized groups, including people living in economic poverty and by Black, Indigenous, and people of color. These are the very groups whose health the law should protect. Banning abortion does the opposite.

In-country after country, abortion bans have not led to a decrease in the number of abortions, but rather an increase in the number of unsafe abortions—especially affecting people of limited means.

These risks are neither theoretical nor conjectural. In countries across the world, including Romania, South Africa, El Salvador, and Ecuador, there is a statistical relationship between the imposition of restrictive abortion legislation and increases in maternal mortality and morbidity. The lesson for this case is clear: If an abortion ban like H.B. 1510 is upheld, more women in Mississippi are likely to die.

Consistent with these findings, countries around the world allow abortion on broad grounds.

Amicus briefs submitted in support of Petitioners claim that most countries ban or severely restrict abortion. That assertion distorts reality. In fact, a strong majority of women of reproductive age—approximately 60%—live in countries where abortion is available upon request or otherwise broadly available on a variety of social, economic, and health grounds.

By contrast, just a handful of countries, representing 5% of women of reproductive age, ban abortion without exception. Mississippi’s H.B. 1510 is an unmistakable step in this latter direction, away from the global norm and towards this small minority position.

Furthermore, where only economically developed or highly developed countries are considered, an even more robust consensus emerges. Of the 36 highly developed countries, 34 offer abortion on broadly available grounds. A significant number of nations offer abortions free of charge to low-income pregnant individuals.

International law coheres with these trends in comparative law. Contrary to amicus briefs submitted supporting Petitioners, international human rights law recognizes the well-known risks created by restrictive abortion legislation and requires states to ensure abortion access.

Access to safe and lawful abortion services is firmly rooted in the rights to life; to non-discrimination; to be free from torture, cruel, and degrading treatment; and to privacy. These rights are recognized in international human rights treaties ratified by the United States, such as the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention Against Torture. The United States cannot, given its international obligations, enact legislation that transgresses these commitments. Banning abortion clearly does so.

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How US Abortion Politics Distorts Women’s Lives in Conflict Zones

Excerpt of New York Review of Books that quotes GJC President Akila Radhakrishnan.

According to Akila Radhakrishnan, a human rights lawyer and president of the Global Justice Center, international humanitarian law supersedes national abortion laws: doctors in humanitarian settings have an obligation to provide care regardless. This is analogous, she argued, to the doctor’s duty to provide care to any person injured in a conflict even if the laws of country they are working in forbid the provision of care to people affiliated with so-designated terrorist organizations. The International Committee of the Red Cross also has guidelines that tell aid workers that in emergencies, international humanitarian law takes precedence over domestic rules.

“It’s unclear why [abortion would be different],” said Radhakrishnan. “We seem reluctant to make these connections when it comes to women’s bodies…. the denial of abortion, certainly to rape victims, has also been found to be torture. But you don’t see that same kind of outcry from a broad constituency when abortion services are denied.”

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Submission UN Special Rapporteur on Abortion Restrictions During COVID-19

The following is responding specifically to question 2(a) concerning measures introduced during the pandemic aiming at recognizing, restricting, banning and/or criminalizing access to legal abortion.

The COVID-19 pandemic posed unprecedented challenges to access to sexual and reproductive health services. As states enacted their COVID-19 response plans in the early phase of the pandemic, GJC noted an uptick in focus on abortion in the United States and around the globe - resulting in a mix of outcomes, both positive and negative. The unevenness with which abortion was dealt with underscores the importance that access to safe abortion services be protected as a matter of human right, recognized by officials as essential medical care, and not subject to restrictions.

Global Increase of Restrictions on Abortion Access

A number of US states moved to limit abortion by classifying abortions that are not a medical emergency as non-essential medical services that must be canceled or deferred, and ordering providers to stop their performance. As a result, legal battles played out across these states. In Texas, the conflict first began after the government enacted an executive order banning abortions as “a nonessential medical procedure that must be suspended to conserve scarce medical equipment for doctors treating coronavirus patients.” The fight went back and forth between different courts, causing chaos, confusion and disruption for providers and patients. There were numerous stories of pregnant women trying to access clinics for their appointments only to find them closed, waiting in clinic parking lots for hours while being harassed by protestors, and traveling for hours across state lines to reach the nearest available clinic. A similar pattern emerged in other states across the US.

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Letter to President Biden: Call for Executive Action on United States Abortion Restrictions on Foreign Aid

Dear President Biden,

We, the undersigned organizations, welcome your administration’s reengagement of the United States (US) with the UN Human Rights Council (HRC) and recommitment to promoting human rights. We also applaud you for revoking the Global Gag Rule (also known as the Mexico City Policy) within your first ten days in office, and now we ask you to go further to implement “the policy of the US to support women’s and girls’ sexual and reproductive health and rights in the US, as well as globally.” Therefore, in light of your administration’s response to the recommendations made to the US during the Universal Periodic Review (UPR) before the HRC in Geneva last November, we are writing to urge you to take further steps to implement the UPR recommendations made with regard to sexual and reproductive health and rights, including by taking executive and administrative action to ameliorate the harmful impact of US abortion restrictions on foreign aid, particularly the Helms Amendment, a nearly 50-year-old policy that must be congressionally repealed in its entirety. Recognizing the racist and neo-colonial roots of the Helms Amendment, we also urge the implementation of the recommendations made regarding racism and discrimination. These recommendations were made by 23 countries spanning across Asia, Africa, Latin America, Europe, and the Middle East and, if implemented, would positively impact access to sexual and reproductive health and rights, as well as the livelihood and wellbeing of persons experiencing discrimination.

During the UPR, the US was called on to strengthen its support for sexual and reproductive health and rights at home and abroad. A number of countries made formal recommendations for the US to take action on its restrictions on foreign assistance, and we commend your support of these recommendations. The Netherlands called on the US to “repeal the Helms Amendment...and, in the interim, allow United States foreign assistance to be used, at a minimum, for safe abortion in cases of rape, incest, and life endangerment.” During the UPR adoption, the United Kingdom specifically addressed its “hope that the US can go further and clarify its interpretation of the Helms Amendment, and ensure universal access to safe abortion care.” Congress must repeal the Helms Amendment entirely and the Administration must do all that it can to mitigate the harms of this egregious policy in the interim. In order to implement these recommendations, we encourage you to take steps to:

  • Take executive action and issue guidance from relevant agencies and departments to clarify and implement US foreign assistance support for abortion care to the maximum extent allowed under the Helms Amendment, namely by immediately clarifying that funds can be used to support abortion care provided in cases of rape, incest, or life endangerment of the pregnant person.
  • Issue guidance from relevant agencies and departments to proactively clarify that US foreign assistance may be used for abortion information and counseling under the Leahy Amendment.
  • Prioritize the removal of abortion funding restrictions like the Helms Amendment, in addition to addressing many other important sexual and reproductive health and rights (SRHR) priorities, through the White House Gender Policy Council, with its focus on promoting SRHR domestically and globally, in order to bring US policy in line with its human rights obligations and the administration’s stated commitment to advancing global health and equity. All actions by the Gender Policy Council must also consider the role of racial and other forms of discrimination on recipients of sexual and reproductive healthcare in the US and elsewhere across the globe.
  • Consult with relevant stakeholders and agencies to issue policies to combat systemic racism and discrimination against marginalized and minoritized populations and ensure implementation of these policies at the state, federal and local levels, recognizing that domestic US policy and practice influence the values exported through US foreign assistance and foreign policy.
  • Ensure robust support for sexual and reproductive health and rights, including eliminating Helms and similar abortion coverage restrictions from the Fiscal Year 2022 budget.

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Reset or revolution: Biden’s first 100 days

Excerpt of International Bar Association article that quotes GJC President Akila Radhakrishnan.

Another cause for concern is gender inequality. Akila Radhakrishnan, President of the Global Justice Center, says that on some issues Biden has said the right things and taken the right initial steps, but on abortion the administration has been ‘profoundly disappointing’.

Radhakrishnan notes that the Biden administration has shown its comfort and ability to stand up against white supremacy, and to stand up for LGBTQ+ rights, at least in rhetoric and initial gestures. She asks, ‘so when it comes to abortion, why are we seeing them not utilise the terminology of abortion? Why have we seen nothing on broader commitments beyond repealing the gag rule?’

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Silencing Progress: The Siljander Amendment and Global Censorship of Abortion Speech

For the last four years, the Trump administration has waged a war on sexual and reproductive health and rights around the world. Some of the tools in its arsenal are US foreign assistance restrictions on family planning and abortion. To be sure, many of these restrictions pre-date Trump, but this administration had a laser focus on weaponizing them to undermine and attack the fundamental human rights of women.

The change in US leadership with the Biden administration offers a chance for renewed attention and pressure on the need to repeal these odious restrictions, some of which are better known and understood than others.

Much has been said on the Global Gag Ruleand to a lesser extent the Helms Amendment(“Helms”). However, little has been written or is understood about the Siljander Amendment (“Siljander”), which prohibits lobbying for or against abortion with US foreign assistance funds.

Even so, the Siljander Amendment has appeared in recent news: In August 2020, 60 US Senators and Representatives signed a letter to John Barsa, Acting Administrator of the US Agency for International Development (“USAID”) urging enforcement of Siljander by reducing “US contributions to UN Secretary-General and to UN organizations that lobby for abortion…in amounts proportional to their abortion-related lobbying,” also referring to “a fictitious international right to abortion.” This flawed assessment comes, unsurprisingly, on the heels of the US government cutting assistance to the Organization of American States (“OAS”) in 2019 based on erroneous claims that its agencies engaged in lobbying for abortion in violation of the Siljander Amendment.

In light of these concerning developments, and with the new Biden administration taking office, this factsheet is intended to provide background information regarding the Siljander Amendment, how it has been applied – namely, to censor constitutional and legal reform and fundamental human rights – and why it should ultimately be repealed, along with all other US abortion restrictions on foreign assistance.

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Mike Pompeo Is Wrong: There *Is* an International Right to Abortion

Excerpt of Ms. Magazine op-ed from GJC Program Coordinator Merrite Johnson.

Last month, Secretary of State Mike Pompeo signed the Geneva Consensus Declaration, a U.S.-led document that fired yet another shot across the bow at reproductive freedom and bodily autonomy. Bookended by a bizarre montage video, the signing ceremony was touted as a watershed moment in the fight against an international movement to declare a right to abortion at the expense of traditional family values.

The only problem? There very much is an international right to abortion.

The good news, at least, is the declaration is not legally binding. As reluctant as Pompeo and the rest of the Trump administration may be to follow the law, the fact remains that the United States is party to a number of human rights treaties that protect abortion rights—and adhering to these treaties is a legal requirement.

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Factsheet — Reproducing Patriarchy: How the Trump Administration has Undermined Women’s Access to Reproductive Health Care

For an in-depth analysis of the new Title X regulations (Final Rule, Domestic Gag Rule, or Domestic Gag), the impact on clinics’ participation in Title X and patients’ access to healthcare, domestic litigation challenging the restrictions, and how the Domestic Gag Rule violates the United States’ international human rights legal obligations, see the Global Justice Center and Leitner Center’s full report.

The Domestic Gag Rule is part of a broader pattern aimed at restricting access and denying women their ability to exercise their fundamental human rights

For the last four years the Trump administration has engaged in a systematic effort to undermine reproductive choice and bodily autonomy. Internationally, the Trump administration has attempted to undermine international law and institutions that protect sexual and reproductive health and rights (SRHR) and has cut funding for organizations that promote reproductive rights and services. President Trump reinstated and expanded the Global Gag Rule, limiting funding for foreign non-governmental organizations that provide abortion services as a method of family planning and restricting a wide variety of speech about abortion services, research, and advocacy, with well-documented detrimental impacts on sexual and reproductive health, HIV and AIDS services, and maternal mortality.

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