LegiStorm

Summary:

On January 23, 2017, President Trump issued a memorandum reinstating the "Mexico City policy," which requires foreign nongovernmental organizations (NGOs) receiving certain types of U.S. assistance to certify that they will not perform or actively promote abortion as a method of family planning, even if such activities are conducted with non-U.S. funds. Background and Context: Key Administration Actions The Mexico City policy has remained a controversial issue in U.S. foreign assistance. Since it was first issued by President Reagan in 1984, the policy has been established and rescinded through executive statements and instruments by past and current Presidents. At the time, it represented a shift in U.S. population policy; under the 1973 Helms amendment and other international abortion and family planning-related restrictions, no U.S. funds could be used directly to pay for the performance of an abortion as a method of family planning or for involuntary sterilizations. However, U.S. and foreign recipients of U.S. Agency for International Development (USAID) grants could use their own funds and funds received from other sources to engage, where legal, in abortion-related activities—though they were required to maintain segregated accounts for U.S. money in order to demonstrate compliance with U.S. abortion restrictions. Under Reagan's policy, foreign NGOs were required to certify in writing that they did not, and would not during the time of the funding agreement, perform or actively promote abortion as a method of family planning as a condition for receiving USAID family planning assistance (either as a direct recipient or a sub-recipient through a U.S. NGO that receives USAID funds). The Mexico City policy as described above was maintained by President George H.W. Bush and rescinded by President Clinton in 1993. President George W. Bush issued a memorandum reinstating the policy in January 2001 and expanded it in March 2003 to include all assistance for voluntary population planning furnished to foreign NGOs by the State Department. President Bush also instituted exceptions for cases of rape, incest, and life of the mother, and for post-abortion care. Several months later, he further announced exceptions for funding provided through the President's Emergency Plan for HIV/AIDS Relief (P.L. 108-25) and intergovernmental organizations (such as the United Nations and its affiliated entities). President Obama revoked President Bush's policy in January 2009. Trump Administration Reinstates Mexico City Policy In January 2017, President Trump reinstated George W. Bush's January 2001 memorandum that reestablished the Mexico City policy. He also directed the Secretary of State to "implement a plan to extend the requirements of the reinstated memorandum to global health assistance furnished by all departments or agencies," to the extent allowable by law and in coordination with the Secretary of Health and Human Services, and "take all necessary actions, to the extent permitted by law, to ensure that U.S. taxpayer dollars do not fund organizations or programs that support or participate in the management of a program of coercive abortion or involuntary sterilization." Congressional Perspectives Over the years, Members have introduced or voted on legislation to permanently establish or reverse the policy; however, none of these proposals have been enacted. In the 115th Congress, several bills aim to codify the reversal of the policy (for example, S. 210 and H.R. 671), while others express support for making the policy permanent (S.Res. 15). Supporters maintain that the policy prevents U.S. taxpayer dollars from being used to pay for abortion or the promotion of abortion worldwide. They contend that although existing laws ban U.S. funds from being used to perform or promote abortions abroad, money is fungible; organizations receiving U.S. taxpayer funding could use U.S. resources for family planning activities while diverting money raised from other sources to perform abortions or lobby to change abortion laws and regulations. The Mexico City policy, they argue, closes this "loophole." Opponents contend that the policy deprives women of access to quality health care and information about their health and well-being. They argue that NGOs may cut back or eliminate family planning services because they do not want to risk losing U.S. funding. Some further contend that reduced access to such services may increase the use of abortion as a method of family planning, leading to a rise in maternal deaths as the result of unsafe or illegal abortions. Critics also maintain that the policy imposes a so-called "gag" rule on NGOs that aim to provide women with comprehensive information about their health care options, or change laws and regulations in developing nations to make abortions safe. Such restrictions, critics note, would be unconstitutional if applied to U.S. groups working in the United States. In January 2017, some NGOs stated that they would not receive U.S. funding because of the policy. Looking Ahead Members of the 115th Congress will likely continue to debate and monitor key aspects of the policy. Expansion and exceptions. The policy announced by President Trump calls on the Mexico City policy to expand to include global health assistance, but it is unclear which global health programs will be affected. There are also questions as to whether the policy extends beyond foreign NGOs to include intergovernmental organizations. In addition, it is unclear if the Administration will issue exceptions similar to those applied by the George W. Bush Administration. Administration guidance and implementation. Given the potentially complex nature of Mexico City policy certifications and U.S. government operations in the field, Members may seek to monitor the speed and effectiveness with which the Administration issues policy directives and implementation guidelines to relevant agencies. Possible impact on U.S. international family planning. Under previous Administrations, funding that remained unused because of the Mexico City policy was reprogrammed to other family planning-related activities. The extent, if any, to which the Trump Administration would reprogram such funds is unclear. Relationship to other U.S. abortion-related restrictions. President Trump's January 2017 memorandum includes language that appears similar to the "Kemp-Kasten" amendment. (Kemp-Kasten, which has been included in State/foreign operations appropriations bills since FY1985, "prohibits funding for any organization or program that, as determined by the President, supports or participates in the management of a program of coercive abortion or involuntary sterilization.") It is unclear how, if at all, the language in the memorandum supplements or expands on the Kemp-Kasten provision, which in some years has been used to withhold U.S. funding to the U.N. Population Fund.