Letter to Congress

Urging Congress to Vote for the Lee Amendment to Eliminate the Global Gag Rule Dear Representative, We are writing on behalf of the Center for Reproductive Rights, a nonprofit legal organization dedicated to promoting women’s equality worldwide by guaranteeing reproductive rights as human rights. We strongly urge you to support the Lee Amendment to the Foreign Relations Authorization Act (H.R. 1646), which passed in the House International Relations Committee markup by a bi-partisan vote of 26-22. The Lee Amendment would eliminate the Global Gag Rule (or “Mexico City Policy”). We expect a vote on this issue in the U.S. House of Representatives as early as this week. The Lee Amendment would restore the fundamental human rights of freedom of speech and democratic participation to U.S. foreign policy – values that have been stifled by the Global Gag Rule. The Global Gag Rule prohibits U.S. family planning funds from going to any foreign non-governmental organization unless it agrees to give up its right to use its own, private, non-U.S. funds for 1) abortion services, 2) abortion-related advocacy or public education, or 3) counseling women clients about abortion or referring them to a legal abortion provider. This policy denies the right of foreign organizations to talk about abortion law reform and to participate in their nations’ democratic processes. The Global Gag Rule would by unconstitutional in the U.S. and violates fundamental principles of basic human rights. I. The Global Gag Rule Would Be Unconstitutional in the United States The United States government has no right to apply a hypocritical double standard in imposing a policy on citizens of other nations that would be unconstitutional within U.S. borders. The Global Gag Rule dictates what a foreign organization can and cannot do with its own, non-U.S. funds. Although it is constitutionally permissible for the U.S. government to restrict how a U.S.-based organization spends federal funds, the Constitution does not permit the government to impinge upon that organization’s constitutional interests – including the right to free speech and association – by restricting how a grantee spends segregated funds received from other, non-federal sources.1 It is an unconstitutional condition for the federal government to prohibit U.S.-based NGOs from using their own, private funds to exercise their constitutional rights to free speech and lobbying in order to be eligible for federal funding.2 Additionally, a funding policy may be found unconstitutional if it discriminates among various viewpoints.3 While the Court held in Rust v. Sullivan that the government may prohibit health workers from providing abortion information or referrals within the context of a Title X project, the regulations at issue in Rust would likely have been impermissible abridgments of the grantees’ freedom of speech if they had barred recipients of government funds from freely providing information and counseling about abortion with wholly private funds outside the government-funded program.4 The Global Gag Rule creates a clear double standard by restricting overseas grantees from spending their own, non-U.S. funds for abortion-related speech and other activities. The United States Congress should reject the Global Gag Rule, and should extend to overseas NGOs and multilateral organizations the same principles of freedom of speech and association that apply under the U.S. Constitution to U.S.-based NGOs. II. The Global Gag Rule Violates Human Rights The Global Gag Rule is a clear violation of human rights principles, including the right to freedom of speech and participation in the democratic process of one’s country, and the right to health and family planning. A. The Rights to Freedom of Speech and Democratic Participation The Universal Declaration of Human Rights, drafted in part by U.S. delegate Eleanor Roosevelt and adopted by the United Nations in 1948, proclaims the human right to freedom of speech and democratic participation: [T]he advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people… (Preamble) Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. (Article 19) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (Article 21(1)) Additionally, the International Covenant on Civil and Political Rights, which the U.S. has ratified, provides that: Everyone shall have the right to hold opinions without interference… Everyone shall have the right to freedom of expression, this right shall include the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print… (Article 19) Furthermore, freedom of speech and democratic participation are protected by the First Amendment to the U.S. Constitution: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. B. The Rights to Health and Family Planning The Global Gag Rule also violates the right to health, including reproductive health, as well as the right freely and responsibly to determine the number and spacing of one’s children and the right to reproductive self-determination. According to the Universal Declaration of Human Rights: Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including… medical care and necessary social services… (Article 25) During the International Conference on Population and Development held in Cairo in 1994, governments – including the United States – adopted by consensus a landmark agreement that acknowledged reproductive rights as integral to human rights. This agreement provides that: [R]eproductive rights… rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. (Paragraph 7.3) This document also recommended that: Specifically, Governments should make it easier for couples and individuals to take responsibility for their own reproductive health by removing unnecessary legal, medical, clinical and regulatory barriers to information and access to family-planning services and methods. (Paragraph 7.20) Finally, during the United Nations Fourth World Conference on Women in Beijing in 1995, governments – again, including the United States – adopted a Declaration affirming that: The explicit recognition and reaffirmation of the right of all women to control all aspects of their health, in particular their own fertility, is basic to their empowerment. (Paragraph 17) In most countries, the neglect of women’s reproductive rights severely limits their opportunities in public and private life, including opportunities for education and economic and political empowerment. The ability of women to control their own fertility forms an important basis for the enjoyment of other rights. (Paragraph 97) The Global Gag Rule’s restrictions on access to health care and family planning stands in sharp contrast to longstanding U.S. policy at home and abroad. The U.S. has a proud history of promoting women’s reproductive health, as well as the right to freedom of speech and democratic participation, and strong leadership by the United States government has ensured the inclusion of these principles in numerous, widely accepted international human rights instruments. We should do no less in conducting our own foreign policy. III. Conclusion – Support the Lee Amendment The Global Gag Rule is a clear violation of international human rights, and is a hypocritical double-standard that would be unconstitutional in the United States. The Lee Amendment would eliminate the Global Gag Rule and restore fundamental American values to U.S. foreign policy. The Center for Reproductive Rights urges you to support the Lee Amendment to the Foreign Relations Authorization Act. Please feel free to contact us if you have any questions. Very truly yours, Rosemary J. Dempsey Washington, DC Director Julia L. Ernst International Legislative Counsel  

1 See Rust v. Sullivan, 111 S.Ct. 1759 (1991). See also, Perry v. Sinderman, 408 U.S. 593, 597 (1972) (the government “may not deny a benefit to a person on the basis that infringes his constitutionally protected interests – especially, his interest of freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited”). As the government may “burden the First Amendment rights of recipients of government benefits [only] if the recipients are left with adequate alternative channels for protected expression,” Velazquez v. Legal Services Corp., 164 F.3d 757 (2d Cir. 1999, emphasis added), the court in Rust provided that allowing the recipient to spend its own, non-federal funds without the burden of the restrictions met this standard.

2 Federal Communications Commission v. League of Women Voters of Cal., 104 S.Ct. 3106, 3128 (1984) (holding that federal law barring noncommercial radio stations receiving federal funds from editorializing – even when editorial activity is financed with “wholly private funds” – violates the First Amendment).

3 Velazquez v. Legal Services Corp., 164 F.3d 757 (2d Cir. 1999). The Global Gag Rule imposes viewpoint discrimination by funding organizations that advocate against legalizing abortions, while refusing to fund organizations that advocate in favor of legalizing abortions.

4 Id. at 1774-1775. See also, Planned Parenthood Ass’n of Chicago Area v. Kempiners, 568 F. Supp. 1490 (N.D. Ill. 1983) (holding that a statute prohibiting health care providers from engaging in abortion counseling or referrals from receiving grants under another state program was unconstitutional), and Planned Parenthood of Central and Northern Arizona, 789 F.2d 1348, 1350 (9th Cir.), aff’d mem. sub nom. Babbitt v. Planned Parenthood of Central and Northern Arizona, 479 U.S. 925 (1986) (striking down a state statute that denied federal and state funding to family planning organizations that performed or promoted abortion, stating that the statute constituted “a penalty designed to chill the constitutional rights to provide abortions” and was therefore an unconstitutional condition. Although the state could require the segregation of funds to ensure that the restrictions applied to the state funds, the court held that the state could not restrict non-governmental funds from being used for constitutionally protected activities such as abortion related services).