First, Undo the Harm: Biden Administration Takes Steps to Protect Reproductive Rights

Posted in: Reproductive Law

The Trump administration was a four-year-long war on women’s health. In his first week in office, President Biden began the important work of undoing the harm Trump caused, but there will be much more to do to ensure women in the United States and abroad have access to quality sexual and reproductive health care, an essential aspect of their human rights.

Step 1: Revoke the Global Gag Rule

Four years ago, millions of women marched across the country to protest the election of a misogynist to the presidency. The infamous “grab ’em by the pussy” video was just the tip of the iceberg. Trump responded to the pleas of women across the country by beginning to dismantle the few protections they had with respect to sexual and reproductive health care. He found broad support in the GOP, which joined in his glee in attacking women’s rights.

The very next day, Trump reinstated the so-called Mexico City policy.

This policy was first designed by Ronald Reagan’s administration. It was first enforced in 1984 at the United Nations International Conference on Population and had the deleterious effect of globalizing barriers to women’s health care. The first version of this policy, also known as the “global gag rule,” provided that foreign non-governmental organizations (NGOs) who received U.S. international family planning assistance could not offer abortion services—even if the services were funded with non-U.S. money. Prior to implementation of this policy, a federal law known as the Helms Amendment, passed in 1973, already prevented the actual use of U.S. funds to pay “for the performance of abortion as a method of family planning.” But Reagan thought this law did not go far enough—he wanted to create more of a barrier between U.S. foreign aid and abortion.

The global gag rule was an executive add-on to existing federal law. It cut a wide swath and had harmful effects, some intended, some unintended. Family planning NGOs that also provide abortion care lost their funding; some then had to close or reduce service levels because of the lack of funding. NGOs that continued to accept were barred even from providing information about abortion to their patients, or making referrals to other providers. Funded organizations were also banned from advocating for the legalization or expansion of access to abortion in their countries. The United States is the largest funder of global health initiatives worldwide, and women across the globe suffer both when the global gag rule is in place—and at all times due to the funding and service cuts that are not easily restored when it is revoked.

The global gag rule is the ultimate political football. It stayed in place through Reagan’s and George H.W. Bush’s administration, but when Bill Clinton took office in 1993, he withdrew the executive order that had imposed the rule. George W. Bush reinstated it in 2001, and Barack Obama withdrew it in 2009. Trump’s reinstatement of the rule would have been just another turn in the game, but he also vastly expanded the rule. In Trump’s version of the global gag rule (first released in the form of a tweet, per his unusual governing style), the prohibitions applied not only to foreign NGOs who received family planning aid from the U.S. but also to those that receive any global health assistance from the U.S. This might not seem like a significant difference, but it increased the scope of the gag rule from $575 million (money from the foreign family planning assistance) to $9.5 billion.

What does this mean? The traditional policy applied only to foreign NGOs who received U.S. aid for family planning. But Trump’s order, through this additional provision, governs money that the United States provides for any global health assistance. In practical terms, this increased the scope of the gag rule from $575 million (amount of family planning assistance given to other countries in 2016) to an estimated $9.5 billion. This was a devastating and bizarre expansion, particularly given that many countries across the globe are moving to liberalize abortion laws and access. (A good overview of abortion law worldwide can be found here.)

Trump’s gag rule contained another glaring problem—it did not exempt funding under the President’s Emergency Plan for AIDS Relief (PEPFAR). This was one of George W. Bush’s signature initiatives, and his version of the gag rule specifically exempted HIV/AIDS funding because it was understood organizations providing prevention, care, or treatment to people with HIV/AIDS could not adequately function under the gag rule’s restrictions. But Trump threw those organizations under the bus with all the rest.

The ostensible justification for the global gag rule is to reduce the number of abortions across the world. It does this, in theory, by targeting activities that might indirectly promote or facilitate abortion. But there is no empirical support for the claim that the gag rule reduces abortion. Researchers have been able to zero in on its effects since it has been introduced and withdrawn so many times. Democratic administrations provide a control against which global abortion rates during Republican administrations can be measured.

Although the global gag rule is sometimes touted as a women’s health initiative, it is nothing of the sort. Medical and public health experts agree that the lack of safe abortion services increases risk for women. The first study on the effect of the gag rule showed that the policy might actually have increased the number of abortions. Another study looking at the effect of the rule in Ghana discovered that because of the reduced access to contraceptive services, the rate of unintended pregnancy increased, as did the abortion rate, among rural and poor populations. These statistics represent insults to injury. Across the globe, 830 women die each day from pregnancy and childbirth complications. (We are not immune. The U.S. is one of the few countries where the maternal mortality rate is rising rather than falling.) Women’s health and safety depends on reliable access to contraception and safe, legal abortion. Tens of thousands of women die every year by attempting to end a pregnancy unsafely.

After the gag rule was first introduced in 1984, many foreign NGOs decided to forego all U.S. aid to preserve their integrity and to adequately serve their patients, who needed complete and accurate information alongside comprehensive healthcare. These providers often had to cut staff and services because of the loss of funding, and some had to close. In some areas, the NGOs that curtailed services or stopped providing abortions were the only ones accessible to the community. The gag rule thus put providers in an impossible situation—they could forego funding, which would cause them to serve fewer patients and provide fewer services, or they could accept funding and deny their patients information and services they desperately need.

By executive order on January 28, 2021, President Biden revoked the Mexico City Policy.

The executive order begins with a broad statement about policy goals:

Women should have access to the healthcare they need. For too many women today, both at home and abroad, that is not possible. Undue restrictions on the use of Federal funds have made it harder for women to obtain necessary healthcare. The Federal Government must take action to ensure that women at home and around the world are able to access complete medical information, including with respect to their reproductive health.

With respect to Trump’s version of the Mexico City policy specifically, the order observes that these “excessive conditions on foreign and development assistance undermine the United States’ efforts to advance gender equality globally by restricting our ability to support women’s health and programs that prevent and respond to gender-based violence.”

Steps 2: Reverse the Domestic Gag Rule

Biden’s executive order identifies another legacy of the Trump administration that impairs women’s health and humanity, but one that cannot be undone as easily as the Mexico City Policy. Trump devised and imposed a “domestic gag rule,” to accompany the global one.

Although the birth control pill was first approved for use in 1960, and the Supreme Court held it unconstitutional in 1965 for states to prohibit use by married couples, it was the passage of Title X that made it widely accessible. Title X was signed into law in 1970 by (Republican) President Nixon. This law led to the creation of federally funded family-planning clinics across the country.

This unprecedented rule imposes a gag rule on U.S. family planning clinics that are funded by Title X, the national family planning law that subsidizes care for low-income women. Millions of women rely on Title X providers for birth control, STI testing and treatment, and preventive health care like pap smears. The very purpose of Title X was to expand access to reproductive health care and to enable poorer women to exercise reproductive autonomy. Trump’s gag rule reduced the available Title X service network’s capacity in half, an unconscionable deprivation of necessary healthcare for our nation’s most vulnerable women. In some states, this rule eliminated 100% of the Title X funding within the state.

Because the domestic gag rule was enacted through the administrative regulation process, it will take more steps to undo it. President Biden’s executive order calls for that process to begin, by directing the Secretary of Health and Human Services to review the new Title X rule and “consider, as soon as practicable, whether to suspend, revise, or rescind” it, under the rules governing passage of federal regulations.

Step 3: Think Big about Women’s Health

Withdrawing the global gag rule and repealing the domestic gag rule are important first steps toward restoring protection for women’s health, but there is so much more that can and should be done. Trump took other harmful actions, including issuance of a memo designed to greatly reduce the availability of contraception through employer-based health insurance plans. In a long-running war (detailed here) about the scope of the Affordable Care Act’s contraceptive mandate—which requires health insurance plans to cover contraception at no cost to the patient because they are deemed an essential aspect of women’s health.

The original mandate contained an exemption for some religious employers, and the exemption has been expanded through two rulings by the U.S. Supreme Court. In the first, Burwell v. Hobby Lobby (2014), the Supreme Court held that a closely held, for-profit corporation could take advantage of the religious exemption based on the religious views of its owners. In 2017, the Trump administration greatly expanded the exemption by executive order to include any religious or moral objection by an employer, regardless of the nature of the entity. In a 2020 case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, the Supreme Court upheld these orders as compliant with the federal Administrative Procedure Act. While President Biden is likely to withdraw these orders, the Supreme Court’s expansion of the religious exemption will stand absent congressional action.

With Democratic control of both houses of Congress and the Executive Branch, this is the time to take bold action to protect women’s sexual and reproductive health. Core rights related to abortion and contraceptive access are on the precipice of being undone by a newly composed Supreme Court. Abortion rights have become increasingly polarized, as blue states have moved to shore them up at the state level and many red states have tried to eliminate them despite federal constitutional guarantees to the contrary. (The COVID-19 pandemic presented yet another opportunity for anti-abortion states to attack the right.) And regardless of the governing regime, abortion rights depend on access, and the class divides could not be starker. Much of the disparity comes from the Hyde Amendment, a provision of federal law that prevents states from covering abortion under Medicaid except in rare cases. The collective set of rules mean that race and class are enormous predictors of access not only to abortion care, but also to sexual and reproductive healthcare more broadly. Imagine a world in which we were working together to reduce maternal mortality, reduce unwanted pregnancy, reduce racism in healthcare, reduce class-based barriers to access of care, increase comprehensive and medically accurate sex education, and increase access to contraception and STI testing and treatment. Wouldn’t that be a better world?

With control of Washington, the Biden administration should act swiftly to rectify these inequalities, as well as to protect the rights of all women. (Guttmacher Institute provides a helpful roadmap here.) The reproductive justice framework calls for a world in which women have the right to not have children, the right to have children, and the right to raise their children in a safe and secure environment. (More information on the reproductive justice movement is available through the SisterSong website.) This approach calls for us to think big about how to make reproductive autonomy more accessible for all.

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