Civil society organizations and activists face an increasingly hostile political, fundraising, and personal security landscape in many countries. Women’s organizing is particularly affected. Advocates and organizations seeking to promote sexual and reproductive health and rights (SRHR) are further limited by U.S. foreign policy regarding abortion.
During his first week in office, President Donald J. Trump issued a presidential memorandum entitled "Protecting Life in Global Health Assistance" (PLGHA) colloquially known as the “expanded Global Gag Rule.” The policy regulates the actions of foreign nongovernmental organizations (NGOs) that receive U.S. global health assistance. More specifically, the expanded Global Gag Rule prohibits foreign NGOs who receive U.S. global health assistance from the following, even if funded by a different donor:
· Providing of abortion as a method of family planning, except in cases of rape, incest, or a threat to the life of the mother,
· Counseling and referrals for abortion as a method of family planning, except in cases of rape, incest, or a threat to the life of the mother,
· Conducting public information campaigns on the availability of abortion, and
· Advocating for the liberalization of abortion laws or lobbying for the continued legality of abortion.
President Ronald Regan first instated the original Global Gag Rule in 1984; it has been rescinded by all subsequent Democratic presidents and reinstated by all subsequent Republican presidents. The expanded Global Gag Rule, however, differs from the orders propagated by Presidents Ronald Reagan, George H.W. Bush, and George W. Bush. Previous versions of the policy applied to family planning assistance; President Trump’s expanded Global Gag Rule applies to all global health assistance. This difference is significant. The expanded Global Gag Rule concerns approximately $9 billion in funding, compared to approximately $400-500 million in family planning funding under the George W. Bush Administration.
Currently, as a condition of receiving U.S. global health assistance, foreign NGOs must certify compliance with the expanded Global Gag Rule. The policy does not apply to U.S. NGOs, international governmental organizations, or foreign governments, though foreign organizations receiving sub grants from U.S. NGOs must certify compliance.
Researchers have documented the public health impact of previous iterations of the policy. We are one of several research groups studying the health impacts of the current policy. In this article, however, we highlight the so-called “chilling effect” of the policy – how it dampens debate, advocacy, and collaboration regarding abortion and other sexual and reproductive rights, and relate this to larger trends in the civil society space. Researchers and advocates have documented the chilling effect under earlier versions of the policy, but we anticipate that the chilling effect will be amplified under the expanded Global Gag Rule, as the policy affects a larger amount of funding and because it is occurring at a time when civil society faces increasing restrictions in many countries.
SRHR advocacy organizations, feminists, affected women and adolescent girls, and social scientists have a long history of exposing and opposing governmental efforts to limit reproductive autonomy. They have addressed coercive government efforts to promote or repress birth rates, to restrict access to contraception and safe abortion services, and to regulate sexual and reproductive health information and behavior. But, some public health researchers and actors may be less inclined to conceptualize access to comprehensive sexual and reproductive health and rights information and care as subject to social or political struggle. Some may perceive poor access as a largely technical problem.
However, we are particularly concerned by the chilling effect of the expanded Global Gag Rule, given the backdrop of closing civil society spaces around the globe. We write as public health experts who believe that health is a human right. Meaningful participation by individuals and civil society is a critical component for the fulfilment of this right. Moreover, we recognize that community engagement in health policy-making can improve policy and program efficiency and relevance.
In the larger context of closing civil society space and the United States’ withdrawal from leadership on human rights, the expanded Global Gag Rule may significantly stifle civil society engagement in SRHR. We explain in detail.
The value of community and civil society engagement
International human rights jurisprudence requires community and civil society engagement in health priority setting, planning, and accountability. The UN Committee on Economic, Social and Cultural Rights’ General Comment 14 on the Right to the Highest Attainable Standard of Health and General Comment 22 on the Right to Sexual and Reproductive Health; the Convention on the Elimination of All Forms of Discrimination Against Women; and, the Convention on the Rights of Persons with Disabilities, to name just a few examples, all recognize the importance of the meaningful participation of the affected. Norm setting documents in global health reflect these principles. Multilateral global health funding partnerships, such as Family Planning 2020, and the Global Financing Facility for Maternal, Child, and Adolescent Health, include mechanisms for civil society engagement. Given the UN Sustainable Development Goals mandate to “leave no one behind,” countries will need to engage with civil society to address the exclusion and human rights violations that underlie health inequities. However, it is important to note that the depth and scope of civil society engagement in invited policy spaces has been subject to some criticism. And “civil society” does not necessarily represent the priorities of the poorest.
Most governments have committed to community and civil society participation in sub-national, national, and global level priority-setting, program implementation, and accountability within and beyond the health sector. Participation is a cornerstone of a rights-based approach, and also results in programs that better reflect community priorities. Nonetheless, irrespective of whether or not the state provides formal space for civil society engagement, communities have acted collectively to claim sexual and reproductive rights. For example, civil society mobilization at country and global levels is credited with ensuring that women were addressed in HIV programs, advancing access to HIV drugs, investment in TB drug development, regulation of breastmilk substitutes, and respectful maternity care.
Past impacts of the Global Gag Rule on civil society
The Global Gag Rule implemented under Presidents Reagan, H.W. Bush, and W. Bush disrupted civil society engagement in government fora as well as independent advocacy related to sexual and reproductive health and rights. Organizations that received U.S. family planning assistance and followed the policy were unable to advocate for the liberalization of abortion laws or lobby for the continued legality of abortion. These organizations also refrained from participating in debates regarding sexual and reproductive health and rights. For example, NGOs in Ethiopia that received U.S. family planning assistance did not attend meetings to discuss the 2004 revisions to the Ethiopian penal code, depriving the discussants of their expertise on abortion law and the health care system in Ethiopia. Similarly, organizations receiving USAID family planning funds in Kenya, Nepal, and Peru reported that they stopped attending meetings to discuss changes in the abortion law, and a USAID-funded reproductive health network in Ethiopia was unable to include safe abortion in their advocacy for comprehensive reproductive health services.
Some family planning assistance recipients also went beyond the requirements of the policy due to fear of losing funding or to misinformation about what was allowed. For example, an NGO representative was told by her colleagues that they needed to “sign in their contract that they would not talk about abortion, research on abortion… no one wants to be held accountable and it’s very unclear and it’s highly political.”
Current impacts of the expanded Global Gag Rule on civil society
We do not yet have comprehensive data on the impact of the expanded Global Gag Rule. The U.S. State Department issued a limited six-month impact review in February 2018, which failed to acknowledge or address the chilling effect. However, preliminary findings by independent researchers studying the impacts of the expanded Global Gag Rule include examples of chilling effects similar to those seen under earlier iterations of the Global Gag Rule. For example, organizations receiving U.S. global health assistance in Mozambique, Uganda, and Zimbabwe reportedly pulled out of reproductive health and rights meetings and coalitions, undercutting the effectiveness of these shared platforms. In Nepal, where first trimester abortion is legal but still largely inaccessible in many parts of the country, there are apparently fewer organizations working on safe abortion information campaigns in rural and poor areas, compared to before the expanded Global Gag Rule was enforced.
The expanded Global Gag Rule is seemingly impacting global debate and research as well. A news article in the British Medical Journal reported that the word “abortion” was removed from the title of a panel at the International Conference on Family Planning, and that one researcher pulled out of the panel because abortion would be discussed.
Erosion of U.S. commitment to human rights, including sexual and reproductive rights
The expanded Global Gag Rule is consistent with broader United States policy. The Trump-Pence administration has ceased funding UNFPA, the United Nations sexual and reproductive health agency; has eliminated a section on reproductive rights from the State Department’s annual Country Reports on Human Rights Practices; and has refused to accept consensus language on sexual and reproductive health and rights in UN resolutions. Though sexual and reproductive rights are a particular concern to the current administration, the erosion of U.S. commitment extends to human rights broadly. The United States has also withdrawn from the UN Human Rights Council.
These actions reflect in part the growing power of conservative Christians in the executive branch. Foreign Policy reports that the administration has disseminated internal memos outlining prohibitions on language related to sexual and reproductive health and rights. These formal proscriptions, as well as diplomats’ and other government representatives’ general unwillingness to advocate for human rights internationally, can undercut human rights advocates’ ability to advocate vis-à-vis their own governments. Moreover, the U.S. government has made statements and taken steps to support faith-based organizations’ ability to receive U.S. global health assistance. It may intend for these groups to receive some of the funding that will become newly available due to other organizations’ refusal to comply with the expanded Global Gag Rule.
Closing civil society spaces for sexual and reproductive health and rights internationally
Actors concerned with human rights and deepening democracy now routinely decry the phenomenon of “closing civil society space.” We recognize that this is a heterogeneous phenomenon, but the concept of closing civil society space encapsulates important trends that are especially pertinent to sexual and reproductive health and rights. CIVICUS, a global civil society alliance, defines civil society space as: freedom of assembly, freedom of association, freedom of expression, and the state’s willingness and ability to protect civil society. Combining several independent sources of data, the most recent CIVICUS Monitor report, published in November 2018, indicates that civil society is under attack in 111 of 196 countries. The report’s authors attribute the overall worsening situation to rising social and economic inequalities and the ascendency of political leaders exploiting these divisions for their own gain. Governments use legal or extra-legal means to clamp down on civil society and instill fear. Fundamentalist religious or nationalist non-state actors, such as churches, right-wing parties, and corporations, may collaborate with the government or operate with tacit governmental approval to suppress civil society activities regarding sexual and reproductive health and rights.
A civil society survey conducted by the Transparency and Accountability Initiative, a collaborative of six funders working in transparency and accountability, confirmed these findings. Eighty one percent of grantees reported that closing civil society space was making their work harder, with some reporting that closing civil society space had made it harder for them to form partnerships and to access international funds. They concluded that grantees addressing women’s rights and gender equality may be especially—and differently—affected, a conclusion echoed in an August 2018 report by the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association.
Recent events illustrate what these trends look like in countries. In September 2018, the government of Tanzania banned advertisements regarding family planning and Parliament passed a law criminalizing the public dissemination of any statistical information contradicting official government figures, making the collection of public health or health service provision data by civil society or the media nearly impossible. The government of Kenya recently prohibited the organization Marie Stopes from providing legal abortions, seemingly as a result of a complaint that Marie Stopes advertising was “almost making it look cool to have an abortion." A 2018 report by the International Center for Not-for-Profit Law stated that restrictions on the registration, financing, and operations of civil society organizations have undermined the HIV response in Kenya, Ethiopia, and Uganda.
Governments may also tacitly endorse restrictive efforts led by non-state actors. A recent report by the UN Special Rapporteur in the field of cultural rights described tacit state support for extremist organizations to promote fertility among certain groups and limit them in others. Closing civil society space in countries can be reflected in regional intergovernmental fora. The African Union Executive Council recently demanded that the African Commission on Human and Peoples’ Rights withdraw observer status from the Coalition of African Lesbians.
Similar to the chilling effects of the Global Gag Rule and the expanded Global Gag Rule, fear is leading many civil society actors to self-censor their work and avoid involvement in activities that may bring repercussions, even if these activities are permitted by law. For example, a 2017 report by feminist funds Mama Cash and the Urgent Action Fund found that women rights activists in India have discontinued fact-finding operations due to an increased risk of violence “from local right-wing political groups who operate with total impunity”.
The expanded Global Gag Rule is one manifestation of larger trends in the civil society space. These trends have particular impacts SRHR. Civil society actions and leaders can be especially vulnerable to populist nationalism and backlash against recent advances in women’s and other minority groups’ human rights.
Academic, policy, donor and other actors seeking to document and mitigate the harm of the expanded Global Gag Rule should consider the broader political and civil society ecology of the policy. In many countries, women’s reproductive rights organizations are facing a perfect storm of formal limitations on their work and generalized hostility to their mission. Supporting their struggle requires listening and bridging research, evidence, and funding in global health, women’s rights, and democracy building.
Marta Schaaf, DrPH, MIA (SIPA), MPH is the Director of Programs and Operations at the Program on Global Health Justice and Governance (PGHJG) in the Department of Population and Family Health and the Columbia University Mailman School of Public Health. She has expertise in health systems research, civil society activism, and sexual and reproductive health and rights.
Emily Maistrellis, MSc, is a Senior Program Officer at the PGJHG in the Department of Population and Family Health at the Columbia University Mailman School of Public Health, where she manages the PGJHG research on the global gag rule. She has a background in abortion policy, anthropology, and managing large mixed methods research projects.
Terry McGovern, JD, is the Harriet and Robert H. Heilbrunn Professor and Chair Population and Family Health at the Columbia University Medical Center. She has worked in health and human rights for over 30 years. She founded the HIV Law Project in 1989, where she successfully litigated numerous cases against the federal, state and local governments including S.P. v. Sullivan which forced the Social Security Administration to expand HIV-related disability criteria so that women and low income individuals can qualify for Medicaid and social security.
Latanya Mapp Frett, JD, MPA is Adjunct Assistant Professor in the Department of Population and Family Health at the Columbia University Mailman School of Public Health. She previously served as Executive Director of Planned Parenthood Global, the international arm of Planned Parenthood Federation of America, with regional and country offices in Africa and Latin America. She is the incoming President and CEO of Global Fund for Women.
Acknowledgements: research and editorial assistance provided by Jennifer Britton