Trump's Ban On Funding For Overseas Abortions Has Some Little-Known Exceptions

It was one of Donald Trump's first acts as President: a Jan. 23, 2017 executive order that cuts off U.S. support to foreign groups unless they promise not to "perform or actively promote abortion as a method of family planning." This includes providing patients with referrals or information about the procedure, even if those activities are funded by non-U.S. government sources.

Every Republican president since Ronald Reagan has adopted a variant of the "Mexico City policy" — so called after the city where it was first announced. And every Democratic successor has reversed it.

But Trump's version is far more sweeping. Rather than limiting the ban to U.S. aid for family planning services, Trump has for the first time applied it to aid for virtually all global health services, including HIV treatment and prevention. Meaning if any health service also provides information on abortion, it can't get U.S. funding. As NPR has previously reported, some of the world's largest charities providing health care for people in poor countries have deemed the terms ethically or logistically unacceptable — critics often refer to the policy as "the global gag rule." As a result, these groups have already given up millions of dollars in U.S. funding and begun cutting back on services.

Less well-known is that the administration has actually included several exceptions to the policy — essentially a list of conditions under which a group that accepts U.S. aid money can still refer clients to an abortion provider. Now several advocacy groups that oppose the policy are trying to spread the word. Among them is the Washington, D.C.-based group Center for Health and Gender Equity, or CHANGE, which released this month a report that includes an analysis of these exceptions.

"This is so important and yet people don't know about it — even my colleagues in the U.S.," says Serra Sippel, executive director of CHANGE. "Across the board in terms of groups in [the affected] countries as well as those of us advocating in Washington, D.C., we don't have all this information."

Activists and political leaders who oppose abortion argue that the Mexico City policy is needed to ensure compliance with the spirit — and not just the letter — of a long-standing Congressional ban on using taxpayer money to fund abortions overseas. That ban — which has been regularly passed as part of foreign aid spending bills since 1973 — only prohibits direct U.S. funding of foreign groups that perform abortions or "motivate" people to get abortions. The ban does not prevent groups that receive U.S. support from using monies from other, non-U.S. sources to do abortion-related work. That's where the Mexico City policy comes in.

Contacted by NPR for comment, the U.S. State Department declined to provide an official to speak on the record but issued a statement reiterating that rationale. "Supporting the abortion industry and abortion lobby in other countries is incompatible with U.S. law, and undermines our public diplomacy interests," the statement read. "When the United States provides taxpayer-funded aid to help the poorest of the poor ... it is critical that the message associated with our country is our warm recognition of the dignity, worth and potential of each life we touch."

The statement added that "the policy does not change funding levels by one dollar" and that U.S. aid agencies will be re-allocating monies from groups that refuse the terms of the policy to those that do.

But opponents of the policy, such as CHANGE's Sippel, argue that there aren't enough health-care groups that would be willing or able to step in for those that decline the funding. So she's hoping one way to ensure that the policy does not disrupt health services to the world's neediest will be to educate more groups on how to get around it. In particular Sippel points to two exceptions that, on their face, may seem esoteric but which could ultimately have enormous scope.

The first of these is called the "affirmative duty defense." It exempts providers in countries where the national law specifically requires them to provide counseling and referral for abortion as a method of family planning. In other words, in these countries, if the provider, say a nurse at a health clinic, were to comply with the U.S. ban on discussing abortion, then that provider would be in violation of their own country's laws.

In legal parlance, these providers are considered to have an "affirmative duty" to offer abortion counseling and referrals. So the Trump Administration's regulations entitle them to invoke this "affirmative duty" defense to continue discussing abortion without triggering a violation of the terms of their U.S. funding.

CHANGE was one of several groups that successfully lobbied the Trump administration to include the exemption for affirmative duty in the regulations. The activists were particularly concerned about how the policy could impact South Africa.

"South Africa has probably one of the most progressive abortion laws in the world," says Sippel. "In South Africa, the right to an abortion is enshrined in the constitution." That means health providers — including providers that don't directly work on family planning but who might confront abortion questions in the course of say, community outreach on sexually transmitted diseases such as HIV/AIDS, "have an obligation to provide information for women so they can access safe abortion."

At the same time South Africa is one the largest single recipients of U.S. aid dollars to combat HIV/AIDS. And moving forward, disbursement of much of that money will be covered by Trump's more expansive version of the policy.

"We were horrified," says Sippel. "Our reaction was, how are groups in South Africa going to be able to accept this funding?" Agreeing to the terms, "would put them in direct violation of South African law. And what a disaster this would be if no organization in South Africa could accept U.S. HIV/AIDS funding."

Getting the exemption language into the regulations was a major victory for the activists — but also only the first step. The ultimate test will be whether aid groups in South Africa choose to invoke the affirmative duty defense.

So far it's hard to know how many will do so. "It's way too early to have quantitative data," says Jennifer Kates, director of global health and HIV policy at the Kaiser Family Foundation, which has been tracking the impact worldwide. One reason is that so many groups are only now facing the expiration of grandfathered U.S. assistance grants and making the decision about whether to reapply for new funding that would be covered by the policy.

Still, Sippel of CHANGE says anecdotal evidence suggests many aid groups in South Africa are unaware of the exemption. And because the "affirmative duty" clause does not specify by name which nations it covers, they may be reluctant to assume the exemption applies in their case without explicit advance confirmation from the Administration.

Administration officials did not directly address NPR's request for comment regarding the Administration's reasons for including the "affirmative duty" exemption. But in the statement they gave NPR they said that "the U.S. government will respond to those organizations that have asked for further clarification of the policy."

Sippel says she's hopeful that if a group can get U.S. officials to issue a statement explicitly naming South Africa as a nation where the affirmative duty defense can be invoked, the impact could be enormous.

"South Africa is the clearest example of where there's really no ambiguity in the law," she says, "but there are other countries we are looking at where this could also apply."

Chief among them are Kenya and Mozambique. Getting a clear pronouncement from the administration on South Africa "will really help us with other countries to get this information out there," she says.

Another exemption with potentially sweeping implications is one that has been in every version of the policy since Reagan. Known as the "passive referral" exception, it spells out that in countries where abortion is legal, a health-care worker with a group receiving U.S. aid dollars can tell a woman where she can obtain an abortion if the following four conditions are met:

The woman is already pregnant.

She states that she has already decided to have an abortion.

She then asks where she can obtain the abortion safely and legally.

And finally, the provider believes that the ethics of the medical profession in their country require them to respond with information.

This is less of a loophole than it might appear, cautions Sippel, because the set-up requires the woman to know that abortion is a legal option in her case and proactively request a referral.

There may also be linguistic challenges. For instance, in Zimbabwe, says Sippel, a representative of one aid organization told her that the Shona language spoken there does not actually have a word for "abortion." Instead, says Sippel, women may use a term that roughly translates as "aggressively pulling or removing." If a provider is relying on an interpreter who translates that word ambiguously, they may be nervous about jeopardizing their U.S. funding over a technicality.

It's also likely that many groups are simply unaware that passive referral is permitted. Kates notes that U.S. aid is often funneled through larger charities, which then pass it on to much smaller local groups operating on the ground. At each stage, the rules of the policy must be communicated down. "So it's a game of telephone," she says, and conveying highly legalistic exceptions is particularly challenging.

Sippel says for all its narrowness, the passive referral exception could be useful to supporters of abortion-rights. "This is obviously not ideal, but any kind of exception we can find is a good thing," she says. "If there are these small slivers of reprieve that we can offer groups it's important for us to get the information out there."

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