Gut tmacher Policy Review Summer 2013 | Volume 16 | Number 3 GPR
Abortion Restrictions in U.S. Foreign Aid: The History and Harms of the Helms Amendment
By Sneha Barot
orty years ago, in the wake of Roe v. Wade, forces found success in defunding abortion and Congress enacted the Helms amendment excluding it from federal health programs. An to restrict U.S. foreign aid from going early victory for the antiabortion forces came Ftoward abortion. Specifically, the policy with the 1973 passage of the Helms amendment prohibits foreign assistance from paying for the to the Foreign Assistance Act—a provision named “performance of abortion as a method of family for its sponsor, the late, stridently antiabortion planning” or to “motivate or coerce any person Sen. Jesse Helms (R-NC). to practice abortions.” Just on its face, the law is extreme and harmful. But its damaging reach has While the debate over the Helms amendment extended even further through the chilling impact raged in Congress, the Nixon administration’s it has had—on lawful abortion-related activities U.S. Agency for International Development in particular, as well as more generally on U.S. (USAID) issued a statement to Congress express- sexual and reproductive health programs over- ing its strong opposition.1 USAID protested that seas. As such, supporters of women’s reproduc- following an era of decolonization, this new tive health are eager to see the law overturned restriction was at odds with the fundamental altogether. However, given the impossibility of philosophy of U.S. population assistance policy, repealing this long-standing abortion restriction because of its seemingly imperialistic and hypo- in the current political climate, there are steps critical overtones. Moreover, even at that time, that the administration can take in the interim to programmatic and technical experts from within mitigate the impact of the Helms amendment. and outside the U.S. government considered the provision of safe abortion services to be an In Roe’s Aftermath integral component of any broader program The Supreme Court’s momentous 1973 decision involved with reproductive health care. The recognizing a constitutional right to abortion agency also implied that the effect of removing in Roe v. Wade nationalized the issue of abor- safe abortion from the range of options provided tion, galvanized the existing antiabortion move- to women with unintended pregnancies—an ment and led antiabortion activists to mobilize option just legalized for U.S. women nation- at the federal government level as never seen wide—could amount to a form of coercion. The previously. That year, lawmakers introduced an Foreign Assistance Act, USAID wrote, “explicitly unprecedented number of measures to cut off acknowledges that every nation is and should be access to abortions domestically and globally. free to determine its own policies and procedures Their two-pronged strategy focused on overturn- with respect to population growth and family ing Roe through constitutional amendment and, planning. In contradiction of this principle, the alternatively, at least reducing the availability of amendment would place U.S. restrictions on both legal abortions by cutting off all federal govern- developing country governments and individuals ment support for abortion care, including through in the matter of free choice among the means of U.S. foreign aid. The constitutional amendment fertility control…that are legal in the U.S.”1 route failed to gain traction, but antiabortion
9 The Helms amendment took effect at the end of them die—almost all in the developing world.2 of 1973. Historically, it followed the first federal Unsafe abortion is a significant driver of maternal abortion restriction, which was enacted in 1970 mortality: It is responsible for 13% of maternal under the domestic family planning program, deaths worldwide and represents one of the four and preceded its domestic analogue, the Hyde major causes of pregnancy-related mortality and amendment, first enacted in 1976 (see related morbidity (see “Unsafe Abortion: The Missing article, page 2). The passage of the Helms amend- Link in Global Efforts to Improve Maternal ment spurred the enactment of several other Health,” Spring 2011).3 In certain regions, such as prohibitions in the foreign assistance realm, in- Africa or Central and South America, almost all cluding bans on federal funding for biomedical abortions are unsafe, defined by the World Health research and on lobbying for or against abortion. Organization (WHO) as an abortion performed by (Congress also clarified the Helms amendment an individual without the necessary skills, or in in the early 1990s to say that information and an environment that does not conform to mini- counseling about all pregnancy options, includ- mum medical standards, or both.2,3 ing legal abortion—consistent with local country law—is a permissible activity within USAID- Consequently, WHO identifies safe abortion care funded programs.) as one of seven necessary packages of interven- tions to ensure quality reproductive, maternal, Restrictions on U.S. development and humanitar- neonatal and child health care.4 In its technical ian programs have also come in the form of exec- and policy guidance on safe abortion, WHO notes utive policy, most notably the Mexico City policy, that imposing abortion bans does not stop nor also known as the global gag rule. This policy is necessarily even lower abortion rates.3 In fact, important to the story of the Helms amendment research shows that the abortion rate in Africa because of the additional ways it has burdened and Latin America (29 and 32 per 1,000 women access to safe abortion care for women in devel- aged 15–44, respectively), where abortion is il- oping countries beyond Helms. The presidential legal under most situations in most countries, order—first instituted in 1984 by President Ronald is actually much higher than in Western Europe Reagan—prohibited foreign nongovernmental (12 per 1,000), where abortion is broadly legal.2 organizations (NGOs) that receive U.S. family Rather, the major impact of criminalizing abortion planning assistance from using non-U.S. funding is to force women to undergo unsafe and clan- to provide abortion services, information, coun- destine procedures to terminate their unwanted seling or referrals and from engaging in advocacy pregnancies, which results in death and disability to promote abortion. Since Reagan, the policy (see “Access to Safe Abortion Services in the has been implemented by every Republican Developing World: Saving Lives While Advancing president and revoked by every Democratic presi- Rights,” Fall 2012). dent, including Barack Obama. While the Helms amendment limits the use of U.S. foreign aid There are at least three ways to reduce the inci- dollars directly, the gag rule went far beyond that dence of unsafe abortion and its consequences: by disqualifying foreign NGOs from eligibility for First is the provision of family planning services U.S. family planning aid entirely by virtue of their to prevent unintended pregnancy, the root cause support for abortion-related activities subsidized of most abortions. Second is access to safe abor- by non-U.S. funds. tion care to prevent women from having to resort to unsafe abortion. And, last is the availability of Addressing the Harms of Unsafe Abortion emergency or postabortion care for the treatment Because of the Helms amendment and related of incomplete or unsafe abortion. The United abortion restrictions, the U.S. government has States supports the first and last prongs. Indeed, limited its ability to fully address the problems it is the leading donor in the field of international of unsafe abortion and maternal mortality and family planning and reproductive health, and morbidity. Every year, millions of women suffer funds programs in more than 40 countries—the serious injuries from unsafe abortion, and 47,000 majority of which permit abortion under at least
10 Summer 2013 | Volume 16, Number 3 | Guttmacher Policy Review 5,6 one or more circumstances (see chart). Yet, the Country Abortion Law and U.S. Aid U.S. government is ineffectively and incompletely addressing unsafe abortion by failing to support Abortion is permitted in the majority of countries where the United States is providing family planning and reproductive health assistance. the middle prong: safe abortion services. Country Abortion legal Climate of Hostility Benin Sometimes Helms and the related abortion restrictions do Burkina Faso Sometimes not merely interfere with the U.S. government’s Ethiopia Sometimes ability to address unsafe abortion and maternal Ghana Sometimes mortality and morbidity. These restrictions, collec- Guinea Sometimes tively, have resulted in a perception that U.S. for- Kenya Sometimes eign policy on abortion is more onerous than the Liberia Sometimes actual law. Organizations such as Ipas, an NGO Mali Sometimes that supports safe abortion access, have docu- Mozambique Sometimes mented the chilling impact of Helms and other Niger Sometimes U.S. abortion restrictions abroad. Specifically, Rwanda Sometimes they point to a pervasive atmosphere of confu- Sudan Sometimes Africa sion, misunderstanding and inhibition around Togo Sometimes other abortion-related activities beyond direct Zambia Sometimes services. Wittingly or unwittingly, both NGOs and Zimbabwe Sometimes U.S. officials have been transgressors and victims Malawi Life only alike in the misinterpretation and misapplication Nigeria Life only of U.S. anti-abortion law. Tanzania Life only Uganda Life only For example, USAID has adopted an overly re- Angola Never strictive interpretation of the amendment as re- Congo, Dem. Rep. Never quiring a ban on the purchase of equipment and Madagascar Never drugs to aid in postabortion care, such as manual Mauritania Never vacuum aspiration (MVA) kits to treat incomplete Senegal Never abortions and misoprostol to treat postpartum Cambodia Broadly hemorrhage. This decision has contributed to Nepal Broadly shortages in life-saving resources, and to an in- India Sometimes complete and inconsistent approach to addressing Pakistan Sometimes unsafe abortion injuries. On the one hand, USAID Asia Afghanistan Life only provides training on the treatment of complica- Bangladesh Life only tions of unsafe abortion through MVA use; on the Timor-Leste Life only other hand, the agency will not actually purchase Philippines Never the equipment to make treatment a reality. Bolivia Sometimes Latin America Guatemala Life only For their part, whether through misinterpretation and the Haiti Never or self-censorship, NGOs are needlessly refraining Caribbean Honduras Never from providing abortion counseling or referrals in health facilities for women with unwanted preg- Albania Broadly nancies, including those who have been sexually Armenia Broadly assaulted; incorporating abortion information in Middle East, Azerbaijan Broadly Web sites, training materials and other publica- Euraisa and Georgia Broadly Europe tions; participating in discussions and meetings Ukraine Broadly on unsafe abortion; and partnering or identifying Jordan Sometimes with NGOs that openly support abortion access.7 Yemen Life only Note: This list includes only countries that receive funding directly from USAID headquarters. Sources: references 5 and 6.
Guttmacher Policy Review | Volume 16, Number 3 | Summer 2013 11 Mitigating the Harm the extent allowed by law.11 It notes that the lack Because of the harm, both direct and indirect, of access by those in crisis to “comprehensive of the Helms amendment and related abortion abortion care is a denial of their equal rights restrictions, legislative repeal of these provisions and protection as mandated under international is the long-term goal of advocates of women’s human rights law.” reproductive health and rights. In the short term, however, the administration has the power to The administration possesses the power to ren- moderate the impact of Helms in a small but der the U.S. policy on abortion overseas a little significant way without the involvement of more humane, at least in these types of dire Congress, by allowing foreign aid funding to be circumstances. A fair reading of the language of used for abortion services—where legal—for the law prohibiting payment for “abortion as a women who experience rape, incest or a life- method of family planning” would allow support threatening emergency. for abortion in certain cases. Indeed, the 1985 rules issued by the antiabortion Reagan adminis- Access to abortion services is especially critical tration originally implementing the Mexico City for survivors of sexual violence and is, in fact, policy confirms this understanding, by stipulating considered by international and medical authori- that the phrase excludes “abortions performed if ties to be an integral aspect of a comprehensive the life of the mother would be endangered if the response for rape victims. A new WHO report that fetus were carried to term or abortions performed highlights the global epidemic of violence against following rape or incest (since abortion under women, including sexual violence, strongly urges these circumstances is not a family planning a more active and holistic response to this prob- act).”12 More recently, the George W. Bush admin- lem from the health sector.8 Complementary clini- istration affirmed this interpretation in its legal cal and policy guidelines released with the report guidelines on execution of the global gag rule.13 call for the provision of comprehensive sexual Hence, a true application of this language would and reproductive health services for sexual vio- mean that, at the very least, the Helms amend- lence survivors, including, when appropriate, ment allows foreign aid for abortions for rape, emergency contraception to prevent pregnancy; incest and life endangerment cases—and could HIV postexposure prophylaxis to prevent infec- arguably include abortions for health reasons. tion; STI prophylaxis and treatment; and abor- tion, when allowed under national law.9 Moreover, as a political matter, a correct reading of the Helms amendment would bring it in line Among the most vulnerable victims of sexual with the federal status quo on abortion restric- assault and those in most dire need for com- tions, as well as the current political consensus prehensive health services are women raped in among both Congress and the American elector- armed conflict and other crises. Despite increas- ate. Specifically, almost all federal programs that ing international attention over the last 15 years restrict abortion funding—including Medicaid, to the plight of these women, such sexual crimes the Indian Health Service, health care for women continue with impunity and without adequate in federal prison and the Federal Employees response for survivors. In his most recent annual Health Benefits Program—make explicit excep- report on sexual violence in conflict, the United tions for the extreme cases of rape, incest and life Nations (UN) Secretary General states that safe endangerment. And, most recently, the military’s abortion access must be part of any multisectoral TRICARE insurance program was added to this response for women impregnated through rape.10 list: Congress passed the defense authoriza- Similarly, the authoritative field manual on the tion bill in December 2012 with an amendment provision of reproductive health services in crisis authored by Sen. Jeanne Shaheen (D-NH) that settings, developed by a UN interagency collabo- garnered bipartisan support to expand abortion ration, delineates a set of minimum interventions coverage for women in the military and female and service delivery guidelines to be put in place, dependents to cases of rape and incest. including the provision of safe abortion care to
12 Summer 2013 | Volume 16, Number 3 | Guttmacher Policy Review Notably, the Helms amendment is among the few an important signal to other governments, donors remaining abortion restrictions that do not meet and NGOs that the United States recognizes that this federal minimum standard. (The other con- there is a role for safe abortion in promoting spicuous exception is the legislative ban affecting women’s reproductive health. No matter how abortion coverage for Peace Corps volunteers, limited the U.S. involvement in abortion activities which some members of Congress are trying to resulting from a slightly softened interpretation of rectify.) Moreover, it is the only one that can be the Helms law, the fact that there would be some fixed through administrative action, and there is movement could help reduce stigma around abor- a strong argument to be made that aligning the tion. It could help thaw the chilling effects of and Helms amendment with other federal programs diminish the hostile climate toward abortion long should not be such a heavy political lift. Indeed, associated with the United States. This would rep- even some of the fiercest antiabortion actors in resent a modest but critical step in reforming U.S. Congress have conceded that insisting on abor- abortion policy overseas, so that it is a legally ac- tion bans that do not allow exceptions for rape, curate interpretation of the law, reflects the mini- incest and life endangerment cases is politically mum standpoint on abortion restrictions among untenable. The rationale for a revised and cor- policymakers and the public, and serves the very rected policy on Helms implementation stands real needs of women in the developing world. on solid ground on all accounts—from a public www.guttmacher.org health, legal and even political basis. References Catching Up 1. Rosoff JI, Senate-House conferees consider Helms Amendment, Planned Parenthood-World Population Washington Memo, 1973, NGO partners in global health who have experi- W-19:1–2. ence with the U.S. government’s family planning 2. Guttmacher Institute, Facts on induced abortion worldwide, In Brief, 2012,
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