* Note Editor, Boston College Third World Law Journal (2003–2004).
1 See Foreign Assistance Act, 22 U.S.C. � 2151b(b) (2000) (authorizing the president to provide assistance for voluntary population planning). The U.S. government also recognizes that investing public funds in these programs benefits Americans for several reasons. U.S. Agency for Int’l. Dev. (USAID) Population Briefs, USAID’s Population Assistance Program: Overview and Accomplishments 2 (2001) [hereinafter PopBriefs]. Investing in family planning strengthens the economies of our trading partners by decreasing the “long-term consequences of poverty, environmental degradation and resource scarcity.” Id. It also boosts our trade relations with “strategically important” partners such as Egypt and Indonesia. Id. Further, Americans benefit from U.S.-supported contraceptive research and new technologies, including the female condom and low-dose oral contraceptives. Id.
2 See Family Health Int’l, From Rhetoric to Reality: Delivering Reproductive Health Promises Through Integrated Services fig. 1 (2002) [hereinafter Delivering Reproductive Health] (listing the reproductive health services that international organizations recommend for family planning); PopBriefs, supra note 1, at 1–2. Methods of family planning range from “traditional” or “natural” methods such as breast-feeding, the use of herbs, rhythm, and withdrawal, to “modern” methods such as the pill, condom, intra-uterine device, sterilization, and hormonal implants. The Right to Know: Human Rights and Access to Reproductive Health Information, at xi (Sandra Coliver ed., 1995); see also Maja Kirilova Eriksson, Reproductive Freedom: In the Context of International Human Rights and Humanitarian Law 182–83, 185 (2000) (discussing the concept of “family planning” as a human right and analyzing the substantive content of that right as defined by the group Third World Women, the World Health Organization, and the United Nations (UN) Convention on the Elimination of All Forms of Discrimination Against Women).
3 See 22 U.S.C. � 2151b(a); U.S. Funding for the U.N. Population Fund: The Effect on Women’s Lives, Hearing Before the Subcomm. on International Operations and Terrorism of the S. Comm. on Foreign Relations, 107th Cong. 2d Sess. 11 (2002) (prepared statement of Arthur Dewey, Assistant Secretary of State for Population, Refugees, and Migration) (stating that family planning helps parents better provide for children, enhances maternal and child health, and saves lives by reducing pregnancy-related deaths).
4 Larry Nowels, Cong. Research Service, Population Assistance and Family Planning Programs: Issues for Congress 3–4 (2001); see Eriksson, supra note 2, at 181 (arguing that family planning and abortion are connected); Michael S. Greco, Global Gag Rule Recommendation and Report, 2002 A.B.A. Sec. Individual Rts. & Resps. 1, 2. A U.S. Congressional Research Service report observes that this issue “essentially stem[s] from the contentious domestic debate over U.S. abortion policy that has continued since the Supreme Court’s 1973 Roe v. Wade decision holding that the Constitution protects a woman’s decision whether to terminate her pregnancy.” Nowels, supra, at 4. A Population Studies professor comments that the original instatement of the Mexico City Policy in the 1980s marked a dramatic policy turnaround that “reflected the success of the anti-abortion lobby.” Andrzej Kulczycki, The Abortion Debate in the World Arena 26 (1999).
5 See Memorandum on Restoration of the Mexico City Policy, 37 Weekly Comp. Pres. Doc. 216 (Jan. 22, 2001) [hereinafter Jan. 22 Memorandum]; Greco, supra note 4, at 2.
6 Jan. 22 Memorandum, supra note 5, at 216; Memorandum: Restoration of the Mexico City Policy, 3 C.F.R. � 873 (Mar. 28, 2001) [hereinafter Mar. 28 Memorandum] (expanding on the Jan. 22 Memorandum regarding Mexico City Policy implementation, enforcement, and exceptions); Greco, supra note 4, at 2.
7 Mar. 28 Memorandum, supra note 6, at 877–78; Ctr. for Reprod. Law and Policy (CRLP), The Bush Global Gag Rule: A Violation of International Human Rights and the U.S. Constitution 2 (2001) [hereinafter Bush Global Gag Rule]. There are very limited exceptions to this general rule. See Mar. 28 Memorandum, supra note 6, at 878.
8 Jan. 22 Memorandum, supra note 5, at 216; Greco, supra note 4, at 3 n.13 (citing the Policy Statement of the United States at the United Nations International Conference on Population Planning).
9 See, e.g., Bush Global Gag Rule, supra note 7, at 1; Deborah L. Rhode, Gagging on a Bad Rule, Nat’l. L.J., Sept. 3, 2001, at A21. The terms “Mexico City Policy” and “global gag rule” will be used interchangeably in this Note. Although major newspapers and other periodicals commonly refer to the Policy as the “global gag rule,” this term is considered pejorative. See Mexico City Policy: Effects of Restrictions on International Family Planning Funding: Hearing Before the S. Comm. on Foreign Relations, 107th Cong. 57 (2001) [hereinafter Hearing] (statement of Kathy Cleaver, Director of Planning and Information for the Secretariat for Pro-Life Activities, U.S. Conference of Catholic Bishops) (pointing out that opponents of the Mexico City Policy use the term “global gag rule”). The phrase “gag rule” is also used in the domestic context, referring to U.S. Department of Health and Human Services regulations which restrict Title X family planning money from being dispersed to U.S. clinics that support abortion-related services. See generally Carole I. Chervin, The Title X Family Planning Gag Rule: Can the Government Buy Up Constitutional Rights?, 41 Stan. L. Rev. 401 (1989).
10 Press Release, Nat’l. Family Planning & Reprod. Health Ass’n, Swift Congressional Action Urged on “Global Democracy Protection Act” (Feb. 15, 2001) (on file with author); Jean Sutherland, Side Blow of U.S. Family Planning Policy May Prove Fatal to Many in Third World, Pacific News, at http://news.pacificnews.org/news/ (last visited Sept. 18, 2003). Family planning clinics typically provide services regarding HIV and AIDS education, prevention, and treatment. See Delivering Reproductive Health, supra note 2, at T.1 (indicating that the reduction of HIV and STIs among sexually active adults is a desired outcome of family planning).
11 See Karen A. Stanecki, U.S. Census Bureau, The AIDS Pandemic in the 21st Century 1 (2002). This Note refers to HIV and AIDS as “HIV/AIDS” because AIDS is caused by the pathogen HIV. H.R. Rep. No. 108–60, at 6 (2003).
12 H.R. Rep. No. 108–60, at 6 (2003).
13 Id. at 2; Joint U.N. Programme on HIV/AIDS (UNAIDS), AIDS Epidemic Update 16 (2002).
14 Sutherland, supra note 10.
15 Id.; see H.R. Rep. No. 108–60, at 2 (stating that women are four times more vulnerable to infection than men and are becoming infected at increasingly high rates); David Brown, Women Make Up Half of HIV Cases: Milestone Explains Effects of Epidemic, Wash. Post, Nov. 27, 2002, at A1 (discussing the biological and social reasons why women, and specifically African girls between the ages of 15 and 24, are at a high risk of becoming infected).
16 Brown, supra note 15, at A1.
17 Reproductive Health, Gender and Human Rights: A Dialogue, Program for Appropriate Technology (PATH) 36 (Elaine Murphy & Karin Ringheim eds., 2001) [hereinafter PATH Dialogue]; Brown, supra note 15, at A1; see H.R. Rep. No. 108–60, at 2.
18 See USAID Population Briefs, USAID’s Family Planning Services 1, 2 (2001) (highlighting USAID’s contraceptive marketing programs and HIV prevention efforts in the family planning context); Sutherland, supra note 10 (explaining that family planning centers can teach women “how to recognize situations that put them at risk of contracting the disease”); see also Int’l Planned Parenthood Fed’n (IPPF), Learning from the Field 20 (2002) [hereinafter Learning from the Field] (stating that the condom is the best method for preventing HIV transmission, and observing that condom promotion provides the main link between the work of family planning associations and HIV/AIDS efforts).
19 Bush Global Gag Rule, supra note 7, at 3 (describing the choice that health care organizations must make as immoral); see, e.g., IPPF, 2001 Annual Report 15 (2001) [hereinafter IPPF Annual Report].
20 See Bush Global Gag Rule, supra note 7, at 3.
21 See id.
22 See Maria de Bruyn, Ipas, Reproductive Choice and Women Living with HIV/AIDS 26 (2002); Bush Global Gag Rule, supra note 7, at 11.
23 Ctr. for Reprod. Rts., The Global Gag Rule’s Effects on NGOs in 56 Countries (2003) [hereinafter NGOs in 56 Countries], available at http://www.crlp.org/pub_ fac_ggreffects.html (last visited Oct. 16, 2003). These countries all receive U.S. family planning funds. Id. The sub-Saharan countries where abortion is generally prohibited, and which receive U.S. funding, are Cote d-Ivoire, Kenya, Malawi, Nigeria, Senegal, Tanzania, Togo, and Uganda. Id. With regard to these countries, this Note argues solely that U.S.-funded NGOs should be permitted to lobby their governments or speak about abortion within the boundaries of their national laws. See id.
24 Bruyn, supra note 22, at 2 (citing a 2002 UNAIDS study).
25 HIV Facts, Wash. Post Online (2000), at http://www.washingtonpost.com/wp-srv/world/daily/july00/aidsgraphic4.htm (citing UNAIDS, Center for the Study of AIDS, University of Pretoria). Although statistics show that 25–30% of babies born to HIV-positive mothers in sub-Saharan Africa will contract the virus, mother-to-child transmission may be prevented with voluntary counseling and testing, safe infant feeding practices, antiretroviral therapy, and appropriate antenatal care. USAID, USAID Efforts to Prevent Mother-to-Child Transmission of HIV/AIDS 3, 5, 7 (2001) [hereinafter USAID Efforts to Prevent MTCT]; see infra notes 145–147 and accompanying text. Part III.A of this Note discusses the likelihood and biology of mother-to-child transmission in depth.
26 See NGOs in 56 Countries, supra note 23, at Countries where Abortion is Legal.
27 See Sutherland, supra note 10 (quoting Nancy Padian, director of International Programs at the University of California-San Francisco AIDS Research Institute).
28 See Foreign Assitance Act, 22 U.S.C. � 2151b(b) (2000).
29 See U.S. Const. art. II, � 2 (providing that “[t]he President shall be Commander in Chief of the Army and Navy of the United States . . .; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices . . . .”); 22 U.S.C. � 2151b(b); Rebecca J. Cook, U.S. Population Policy, Sex Discrimination, and Principles of Equality Under International Law, 20 N.Y.U. J. Int’l L. & Pol. 93, 101 (1987). The Reagan administration later referenced these sources of authority when implementing the Mexico City Policy. See Cook, supra, at 101 n.27 (citing Letter from Howard M. Fry, to Robert H. Hunter 3–7 (June 13, 1985)).
30 Exec. Order No. 10,973, 3 C.F.R. 493 (1959–1963); PopBriefs, supra note 1, at 1.
31 See Craig Lasher, U.S. Population Assistance, Population Action Int’l (listing annual population assistance funding levels for USAID from 1965 to 2000), available at http://www.planetwire.org/wrap/files.fcgi/2112_USpopassist.htm (last visited Sept. 18, 2003). The amount of population assistance funding is a highly contentious issue. Nowels, supra note 4, at 12. Supporters of increased funding argue that population growth must decelerate in order for economic, social, and environmental development to occur. Id. at 12. In contrast, those who support freezing funding levels stress that, even without an increase, the United States will remain the largest bilateral donor for population programs worldwide. Id. Overall, USAID reports that less than 1% of the total federal budget each year goes to international assistance. USAID, Global Health: Frequently Asked Questions About Population and Reproductive Health Activities, at http://www.usaid. gov/pop_health/pop/popfaq.html (last visited Sept. 18, 2003). International family planning programs are awarded 1/50th of 1% of this budget, or the equivalent of $1.70 per year for each American. Id.
32 PopBriefs, supra note 1, at 2; see also Tara A. Gellman, The Blurred Line Between Aiding Progress and Sanctioning Abuse: United States Appropriations, the UNFPA and Family Planning in the P.R.C., 17 N.Y.L. Sch. J. Hum. Rts. 1063, 1063–1064 (2001); Roberta J. Sharp, Holding Abortion Speech Hostage: Conditions on Federal Funding of Private Population Planning Activities, 59 Geo. Wash. L. Rev. 1218, 1221 (1991). Additionally, the State Department provides aid for family planning programs to the UN Fund for Population Activities (UNFPA). PopBriefs, supra note 1, at 2; Gellman, supra, at 1063–64. This funding has provoked controversy over the years because leaders including President Bush have claimed that the UNFPA’s program in China supports coercive abortion or involuntary sterilization. Nowels, supra note 4, at 8–11 (describing the details of UNFPA deliberations in Congress, as well as the Bush administration’s investigation into this matter).
33 Press Release, U.S. Department of State, United States Government Support for the Fight Against HIV/AIDS (revised) (Dec. 13, 2002) (on file with author) [hereinafter U.S. Government HIV/AIDS Support].
34 See PopBriefs, supra note 1, at 2.
35 See Foreign Assitance Act, 22 U.S.C. � 2151b(f)(1) (2000); Nowels, supra note 4, at 4; Greco, supra note 4, at 3. Because abortion opponents in Congress have not been successful in their post-Roe v. Wade attempts to prohibit abortion altogether, they have used strategies such as the Helms Amendment as an alternative for restricting abortion. Nowels, supra note 4, at 4.
36 22 U.S.C. � 2151b(f)(1).
37 See id.; Nowels, supra note 4, at 4 (distinguishing the Helms Amendment from legislative attempts to ban indirect support for abortion-related activities). Thus, from 1973 to 1984, when President Reagan implemented the Mexico City Policy, U.S.-funded NGOs could use their own independent funds to perform abortion-related services abroad. See Nowels, supra note 4, at 4.
38 Family Planning and Population Assistance Activities, 48 C.F.R. � 752.7016(b) (1986); see Memorandum on the Mexico City Policy, 29 Weekly Comp. Pres. Doc. 10 (Jan. 22, 1993) [hereinafter Clinton] (noting that the Mexico City Policy expands the limitations originally enacted by Congress); Jan. 22 Memorandum, supra note 5, at 216.
39 Clinton, supra note 38, at 10; Bush Global Gag Rule, supra note 7, at 3.
40 Cook, supra note 29, at 97–99. The draft originally circulated by the White House applied the rule to foreign governments, but the Policy was changed before it was officially announced at the UN Conference due to criticism of the draft and concerns about violating national sovereignty. Id. at 99 n.16. Similarly, the current version of the Mexico City Policy does not apply to foreign governments. Mar. 28 Memorandum, supra note 6, at 879, 885 (conditioning U.S. funding to foreign governments on the placement of U.S. funds in a “segregated account to ensure that such funds may not be used to support the abortion activity of the government”); see also Hearing, supra note 9, at 35 (statement of Dr. Nicholas N. Eberstadt, Scholar, American Enterprise Institute) (pointing out that the U.S. will “continue to support either directly or through a grantee to foreign governments even in cases where the governments include abortion in their family planning programs”).
41 Mar. 28 Memorandum, supra note 6, at 874, 879; see, e.g., Hearing, supra note 9, at 51–52 (statement of Dr. Daniel E. Pellegrom, President, Pathfinder International) (discussing U.S.-based organizations’ dissemination of USAID grants).
42 Clinton, supra note 38, at 11. In his executive memorandum to the Acting Administrator of USAID, President Clinton reasoned that the anti-abortion conditions on funding were “excessively broad” and “undermined efforts to promote safe and efficacious family planning programs in foreign nations.” Id. at 10–11.
43 Bush Global Gag Rule, supra note 7, at 2 (providing a detailed account of the congressional action on this policy from 1995 through 2001).
44 Id.
45 See Hearing, supra note 9, at 21 (testimony of Alan J. Kreczko, Acting Assistant Secretary, Bureau of Population, Refugees and Migration, U.S. Department of State); Mar. 28 Memorandum, supra note 6, at 877, 878, 883, 884.
46 See Laurel Cobb et al., USAID, Global Evaluation of USAID’s Postabortion Care Program 4 (2001).
47 See id. at 1, 2, 4. The World Health Organization (WHO) estimates that between the years 1995 and 2000, 78,000 women worldwide died from complications from unsafe abortions, which represents approximately 13% of all pregnancy-related deaths during this period. World Health Org. (WHO), Div. of Reprod. Health, Unsafe Abortion: Global and Regional Estimates of Incidence of and Mortality Due to Unsafe Abortion with a Listing of Available Country Data T.2 (1997). The mortality rate from abortion is hundreds of times higher in developing regions than in developed ones; Africa’s rate of death is the highest, with an estimated 680 deaths per 100,000 procedures. Alan Guttmacher Inst., Sharing Responsibility: Women, Soc’y & Abortion Worldwide 35 (1999), available at http://www.agi-usa.org (last visited Sept. 18, 2003).
48 Mar. 28 Memorandum, supra note 6, at 877, 878, 883, 884; Alan Guttmacher Inst., supra note 47, at 6. Withdrawing support for postabortion services after this successful program had been in place for 7 years would have been politically unpopular, as it would have been viewed as an attack on already injured or dying women. See Cobb, supra note 46, at 4, 6.
49 See Foreign Assistance Act, 22 U.S.C. � 2151b(f)(1) (2000); Mar. 28 Memorandum, supra note 6, at 877, 878, 883, 884 (stating that abortion as a “method of family planning” includes “abortions performed for the physical or mental health of the mother”); Bush Global Gag Rule, supra note 7, at 2.
50 See Mar. 28 Memorandum, supra note 6, at 877, 883.
51 See Hearing, supra note 9, at 35 (statement of Dr. Eberstadt); Mar. 28 Memorandum, supra note 6, at 878, 883.
52 See Mar. 28 Memorandum, supra note 6, at 878, 883.
53 See Hearing, supra note 9, at 12 (statement of Hon. Nita Lowey, U.S. Representative from New York); Mar. 28 Memorandum, supra note 6, at 878, 883; Cook, supra note 29, at 99–100.
54 See Mar. 28 Memorandum, supra note 6, at 875, 881; Cook, supra note 29, at 100. USAID representatives employ a variety of techniques for policy enforcement, ranging from document inspection to worker consultation to observation of family planning activities. See Mar. 28 Memorandum, supra note 6, at 875, 881.
55 See Hearing, supra note 9, at 12 (statement of Hon. Lowey); Cook, supra note 29, at 99–100.
56 See Hearing, supra note 9, at 12 (statement of Hon. Lowey); see also The Global Gag Rule Impact Report (GGRIP), Access Denied: The Impact of the Global Gag Rule in Zambia 6 (2003) [hereinafter Zambia Impact Report] (describing the rule’s chilling effect and providing examples of groups in Zambia that have unnecessarily constrained their activities due to misrepresentations of the global gag rule), at http://www.globalgag rule.com (last visited Oct. 9, 2003).
57 See Cobb, supra note 46, at 1, 3–4 (providing statistics about maternal mortality from unsafe abortions worldwide and describing the global response regarding providing post-abortion care); Alan Guttmacher Inst., supra note 47, at 35, 38 (discussing the severe medical trauma that women experience when suffering from unsafe abortion, contrasting the availability of emergency care services in rural and urban areas, and mentioning the abortion-inducing methods most likely to be life-threatening).
58 See generally CRLP, The Impact of the Global Gag Rule: A Country by Country Snapshot (2001) (on file with author) [hereinafter Country by Country Snapshot].
59 See Hearing, supra note 9, at 51, 52 (statement of Dr. Pellegrom). Pathfinder International was the first organization to negotiate a cooperative agreement with USAID when the Mexico City Policy was first implemented. Id. At a congressional hearing in 2001, Pathfinder’s President testified that the rule puts innumerable organizations in jeopardy because they are:
trapped between reliance on American foreign assistance and their own nation’s laws and medical practices . . . . [W]hichever choice is made, there is harm . . . to organizations and finally to the patients the organizations serve. Usually the patients are women. Mostly they are poor, young and anything but independent. They are people who rely on our good will.
Id. at 52.
60 Country by Country Snapshot, supra note 58, at Bolivia.
61 Id. In Bolivia, abortion is illegal except when the life of the mother is at stake or when the pregnancy results from rape or incest. Id. One report indicates, “Despite the fact that for the past 26 years the Penal Code has made some exceptions to the restrictive abortion law, under which it is possible to receive judicial authorization to obtain access to abortion services, as of 1999, only one legal abortion had ever been performed in Bolivia.” CRLP, Women’s Reproductive Rights in Bolivia: A Shadow Report 4 (2001).
62 Country by Country Snapshot, supra note 58, at Bolivia.
63 Id.
64 See id.
65 See Hearing, supra note 9, at 11 (statement of Hon. Lowey); Greco, supra note 4, at 2; Country by Country Snapshot, supra note 58, at Bolivia.
66 See Hearing, supra note 9, at 11 (statement of Hon. Lowey); Country by Country Snapshot, supra note 58, at Bolivia.
67 See Country by Country Snapshot, supra note 58, at Bolivia.
68 See id. at Nepal.
69 Id.
70 See id.
71 CRLP, The Bush Global Gag Rule: Endangering Women’s Health, Free Speech and Democracy (2003) (on file with author).
72 See id.
73 See Telephone Interview with Wendy Turnbull, Legislative Policy Analyst, Population Action International (Apr. 1, 2003) [hereinafter Turnbull Interview] (discussing recent fact-finding trip to collect data on the effects of the global gag rule on family planning centers, staff, and clients in Africa); see also Salih Booker, Pandering to Abortion Foes Cripples Global AIDS Effort, L.A. Times, Feb. 9, 2001, at 9 (linking groups’ loss of funding and contraceptives to an increase in unsafe abortions, as well as an increase in HIV/AIDS infections); Nancy Dunne, Condom Shortage ‘Contributing to Spread of AIDS in East Europe and Third World,’ Fin. Times (London), Oct. 2, 2002, at 7 (reporting that the U.S. is the largest international donor of condoms worldwide, and that the global gag rule has “cut supplies to many local organisations”).
74 GGRIP, Access Denied: The Impact of the Global Gag Rule in Kenya 1, 4 (2003) [hereinafter Kenya Impact Report], at http://www.globalgagrule.org (last visited Oct. 9, 2003); Joan Ryan, Bush vs. Women of the World, S.F. Chron., May 26, 2002, at D3; Current Global Campaigns (Marie Stopes Int’l) [hereinafter MSI Campaigns], at http://www.mariestopes .org.uk/ww/avcacy-cur-glob-camp.htm (last visited Sept. 18, 2003). Even local clinics run by anti-abortion groups in Africa suffer from this rule, since they are often supported by larger organizations that refuse to certify compliance with the rule. E.g., Marie Cocco, U.S. ‘Gag Rule’ Could Impair AIDS Programs, Newsday, Mar. 11, 2003, at A29. President Bush’s re-instatement of the rule two years ago has forced the faith-based group Family Life Movement of Zambia to close three of its nine family planning clinics. Id. The clinics were jointly-run with Planned Parenthood, which does not comply with the Mexico City Policy. Id. Hilary Mulenga Fyfe, the group’s chair, describes the damage caused by the rule with a proverb from Zambia: “Where the giants are fighting, what suffers is the grass.” Id.
75 Kenya Impact Report, supra note 74, at 4.
76 Id.
77 Id. at 4, 5.
78 Id. at 5. As a result, the health care personnel at the remaining facilities are overworked and underpaid. Id. In September of 2003, clinic staff of the Family Planning Association of Kenya reported that morale had never been lower. Id.
79 See Jane Matluck, Global Gag Rule Inhibits the Fight Against AIDS, Journal News, July 25, 2003, at B.
80 Id.
81 Id.
82 See Cocco, supra note 74, at A29; Matluck, supra note 79, at B; Ryan, supra note 74, at D3; MSI Campaigns, supra note 74.
83 See Hearing, supra note 9, at 53, 55 (statement of Dr. Pellegrom).
84 See id.; PopBriefs, supra note 1, at 1. USAID states that it aims to “make family planning more accessible to people in hard-to-reach areas, . . . [make] commodities more available and at affordable prices . . . [and to] help donors, program managers, and policy makers assess impact and make informed decisions about program design and management . . . .” PopBriefs, supra note 1, at 1.
85 Hearing, supra note 9, at 53, 55 (statement of Dr. Pellegrom).
86 See id. at 55. With family planning specifically, quality of care indications include a program’s choice of contraceptive methods, its continuity of care, its technical competence, the information provided to clients, and the appropriateness and acceptability of its services. Family Health Int’l, Maximizing Access to Quality Family Planning and Reproductive Health Services [hereinafter Maximizing Access], at http://www.fhi .org/en/fp/fpother/fctsht/fctsht5. html (last visited Apr. 11, 2003).
87 See Hearing, supra note 9, at 53, 55 (statement of Dr. Pellegrom).
88 See id.; PopBriefs, supra note 1, at 1.
89 See Hearing, supra note 9, at 53, 55 (statement of Dr. Pellegrom); PopBriefs, supra note 1, at 1; Cocco, supra note 74, at A29; Ryan, supra note 74, at D3; MSI Campaigns, supra note 74.
90 See Cocco, supra note 74, at A29 (quoting Congresswoman Carolyn Maloney); infra Part II.
91 See, e.g., Planned Parenthood Fed’n of Am. (PPFA) v. Agency for Int’l Dev. (AID), 915 F.2d 59, 60–61 (2d Cir. 1990) (affirming dismissal of a complaint that alleged that implementation of the Mexico City Policy violated PPFA’s constitutional rights to speech, association and privacy); Hearing, supra note 9, at 8 (statement of Hon. Chris Smith, U.S. Representative from New Jersey) (stating that the Mexico City Policy’s restrictions are narrow, reasonable, and consistent with the First Amendment); Bush Global Gag Rule, supra note 7, at 6 (arguing that the Policy violates U.S. and international human rights principles guaranteed by human rights instruments to which the United States is subject, such as the American Declaration of the Rights and Duties of Man and the Inter-American Declaration of Principles on Freedom of Expression).
92 See Hearing, supra note 9, at 8 (statement of Hon. Smith).
93 Id.; Ann Hwang, Exportable Righteousness, Expendable Women, World Watch Inst., Jan. 1, 2002, at 24.
94 See, e.g., Planned Parenthood of Minn. v. Minnesota, 612 F.2d 359, 361, 363 (8th Cir. 1980) (affirming district court judgment that held that a state statute granting funds for pre-pregnancy family planning to hospitals and health maintenance organizations that performed abortions but not to nonprofit organizations that similarly performed abortions violated the equal protection guarantee of the Fourteenth Amendment); see also Bush Global Gag Rule, supra note 7, at 12. In Planned Parenthood of Minnesota, the court noted that other courts have rejected the “freeing-up” theory in the context of state funding of private education, as well. 612 F.2d at 361.
95 Planned Parenthood of Cent. & N. Ariz. v. Arizona, 718 F.2d 938, 945 (9th Cir. 1983), modified on other grounds after remand, 789 F.2d 1348 (9th Cir. 1986), aff’d mem. sub nom. Babbitt v. Planned Parenthood of Cent. & N. Ariz. 479 U.S. 925 (1986). It is worth noting that the “fungibility” argument by President Bush and other conservatives is inconsistent with their support for government funding for faith-based initiatives, which, as they maintain, adequately segregate funds used for social services from funds used for religious activities. Bush Global Gag Rule, supra note 7, at 12; Hwang, supra note 93, at 24.
96 See Bush Global Gag Rule, supra note 7, at 12.
97 See U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech . . . .”); see, e.g., Cynthia Price Cohen, International Fora for the Vindication of Human Rights Violated by the U.S. International Population Policy, 20 N.Y.U. J. Int’l L. & Pol. 241, 248–50 (1987); Aryeh Neier, The Right to Free Expression Under International Law: Implications of the Mexico City Policy, 20 N.Y.U. J. Int’l L. & Pol. 229, 229–40 (1987).
98 See Sandra Coliver & Frank Newman, Using International Human Rights Law to Influence United States Foreign Population Policy: Resort to Courts or Congress?, 20 N.Y.U. J. Int’l L. & Pol. 53, 91 (1987); see, e.g., Ctr. for Reprod. Law and Policy (CRLP) v. Bush, 304 F.3d 183, 189–95 (2d Cir. 2002) (dismissing pro-choice organization’s First Amendment claims and related claims based on customary international law). In a New York University School of Law symposium on the civil liberties and human rights implications of the Reagan Mexico City Policy, two scholars of international law pointed out, “Courts have upheld the policy’s constitutionality on the ground that foreign women and family planning agencies outside the United States have no free speech rights and only limited substantive due process rights, even vis-�-vis official U.S. action.” Coliver & Newman, supra, at 91. Nevertheless, they argue that international standards may provide “guidance to judges,” and “may persuade some legislators to oppose the policy . . . .” Id.
99 See U.S. Const. amends. I, XIV; Jan. 22 Memorandum, supra note 5, at 216; Greco, supra note 4, at 5.
100 Mar. 28 Memorandum, supra note 6, at 878, 883; Bush Global Gag Rule, supra note 7, at 13.
101 Hearing, supra note 9, at 1–2, 27 (statement by Sen. Boxer). The press reported that, in this situation, the Bush administration “backed away” from the “embarrassing possibility that its abortion gag would censor the testimony of a witness before Congress.” Id. at 27 (Sen. Boxer quoting and discussing a New York Times article at hearing). When the NGO’s President returned to her country after the hearing, however, the Mexico City Policy continued to apply to her organization and she could no longer advocate for the liberalization of abortion laws without jeopardizing U.S. funding. See id.
102 See CRLP, 304 F.3d at 187. Although CRLP changed its name in late January 2003 to the Center for Reproductive Rights, this Note refers to the organization by its former name because the lawsuit was filed under that name, and most reports cited in this Note were developed under that name.
103 Id. at 186; see Bush Global Gag Rule, supra note 7, at 13; see also U.S. Const. amend. I.
104 CRLP, 304 F.3d at 186, 189; see Bush Global Gag Rule, supra note 7, at 12.
105 CRLP, 304 F.3d at 190–91, 195; PPFA, 915 F.2d at 63–65. In PPFA, Planned Parenthood claimed that the Mexico City Policy placed obstacles in the path of its exercise of First Amendment rights and should, therefore, receive strict scrutiny. 915 F.2d at 63. The court rejected this reasoning and used the rational basis test because the alleged infringement of free speech was the “result of choices made by foreign NGOs.” Id. at 64, 65. Thus, the court found that the executive branch’s restrictions on the class of U.S. funding recipients was rationally related to its objective of withholding federal funds from foreign NGOs that perform or actively promote abortion. Id. at 65. Although the court agreed with Planned Parenthood that allowing foreign NGOs to use separate accounts for abortion-related activities would be less restrictive than the Mexico City Policy, it found that such means would be inconsistent with the government’s objective. Id.
106 See CRLP, 304 F.3d at 190–91; PPFA, 915 F.2d at 65 (the PPFA court upheld the government’s interest as legitimate); see also Anne Marie Gillette, United States Restricts Funding to Foreign Nongovernmental Organizations Performing or Promoting Abortions, PPFA v. AID, 15 Suffolk Transnat’l L. Rev 768, 769 (1992).
107 Hearing, supra note 9, at 11 (statement of Hon. Lowey); Bush Global Gag Rule, supra note 7, at 5; see also CRLP, 304 F.3d at 197.
108 Hearing, supra note 9, at 11 (statement of Hon. Lowey); Bush Global Gag Rule, supra note 7, at 5; see also CRLP, 304 F.3d at 197.
109 Bush Global Gag Rule, supra note 7, at 5, 16 n.35; see U.S. Const. amend. I.
110 U.S. Const. amend. XIV (stating “[Nor shall any State] deny to any person within its jurisdiction the equal protection of the laws”); CRLP, 304 F.3d at 196–97.
111 CRLP, 304 F.3d at 197.
112 Id. at 197–98.
113 Bush Global Gag Rule, supra note 7, at 8–9; Greco, supra note 4, at 5, 6; see also International Covenant on Civil and Political Rights, opened for signature Mar. 23, 1976, art. 19, 999 U.N.T.S. 171, 178 [hereinafter ICCPR]; Universal Declaration of Human Rights, Dec. 10, 1948, art. 19, U.N. G.A. Res. 217A (III), U.N. Doc. A/810, 71 [hereinafter UDHR].
114 See UDHR, supra note 113, at art. 19.
115 Id.
116 ICCPR, supra note 113, at art. 19; see Hearing, supra note 9, at 62–63 (prepared statement of Aryeh Neier, President, Open Society Institute); UDHR, supra note 113.
117 See ICCPR, supra note 113, at art. 19; Hearing, supra note 9, at 62–63 (statement of Neier); Greco, supra note 4, at 6.
118 See Greco, supra note 4, at 6–7. This violation is troubling from an ethical standpoint, as well. See Julia A. Martin & Lisa K. Bjerknes, The Legal and Ethical Implications of Gag Clauses in Physician Contracts, 22 Am. J.L. & Med. 433, 465–68, 476 (1996). As two scholars point out, “Regardless of the reason behind gag clauses, restrictions on doctor-patient discussions are harmful. Not only are gag clauses undesirable, they violate tort law and recognized standards of physicians’ professional ethics, leave patients uninformed and erode physicians’ professional and personal autonomy.” Id. at 476. In the health care setting, preserving physician and patient autonomy is central to maintaining professionalism and fully informed patient consent. See id. These basic health care standards should not be diminished in the family planning setting, where individuals’ sexual and reproductive health care is at stake. See id.
119 See Cohen, supra note 97, at 242, 252, 266.
120 Id. at 252. Professor Cohen astutely acknowledges, “Even if an international forum were to hold that the policy violates one or more human rights, the United States may remain unwilling to alter its family planning funding restrictions.” Id. at 265.
121 Id. at 266.
122 See James Kingston, Human Rights: The Solution to the Abortion Question?, in Understanding Human Rights 455, 458–66, 468 (Conor Gearty & Adam Tomkins eds., 1996) (discussing the applicability of general international law and specific treaty interpretations to both anti-abortion and pro-choice perspectives of the abortion debate); see also Cook, supra note 29, at 101 (explaining that President Reagan based the Mexico City Policy, in part, on an international human rights obligation to protect and care for children before and after birth, pursuant to the U.N. Declaration on the Rights of the Child).
123 Kingston, supra note 122, at 467, 468; see also Laura R. Woliver, Rhetoric and Symbols in American Abortion Politics, in Abortion Politics: Public Policy in Cross-Cultural Perspective 5, 11 (Marianne Githens & Dorothy McBride Stetson eds., 1996) (analyzing abortion-related rhetoric and arguments of 78 American amicus briefs, and noting that “[p]ro-life advocates are adamant about the citizenship of the fetus at the moment of conception”).
124 See Kingston, supra note 122, at viii, 476.
125 See id. at 476.
126 See id.
127 The phrase “HIV/AIDS services” as used in this Note refers to direct outreach to local populations, as well as training and education of local providers, in the areas of HIV/AIDS prevention, care, and treatment. See Turnbull Interview, supra note 73 (discussing the community-based distribution of family planning services, including HIV/AIDS prevention and care); cf. Scott Foster et al., Henry J. Kaiser Family Found., 2001 Federal HIV/AIDS Spending: A Budget Chartbook 9 (4th ed. 2002) (discussing U.S. spending for research in addition to prevention, care, training, and education). Depending on the clinic, these services may include public outreach for youth intervention, education and counseling on behavior modification to reduce the risk of HIV/AIDS transmission, improving blood safety, voluntary counseling and testing, contraceptive distribution, and treatment regimes for preventing mother-to-child transmission. Learning from the Field, supra note 18, at 1–32; Jennifer Kates, Henry J. Kaiser Family Found., A Three Part Series: Spending on the HIV/AIDS Epidemic 27 (2002).
128 President George W. Bush, State of the Union Address (Jan. 28, 2003) (“I ask the Congress to commit $15 billion over the next five years, including nearly $10 billion in new money, to turn the tide against AIDS in the most afflicted nations of Africa and the Caribbean.”), available at http://www.whitehouse.gov/news/releases/2003/01/20030128-19.ht ml (last visited Oct. 27, 2003); see also H.R. Rep. No. 108–60, at 6, 10–11, 23 (“H.R. 1298 is consistent with and endorses President Bush’s $15 billion, 5-year strategy to arrest the spread of AIDS.”).
129 See H.R. Rep. No. 108–60, at 10–11; U.S. Government HIV/AIDS Support, supra note 33 (adding that NGOs receive the “vast majority” of USAID’s HIV/AIDS assistance).
130 See U.S. Government HIV/AIDS Support, supra note 33. The $540 million request represents a 24% increase over the $435 million USAID budget for HIV/AIDS in 2002. Id.
131 See H.R. Rep. No. 108–60, at 2.
132 See Turnbull Interview, supra note 73.
133 The effects of the Policy on specific clinics in general, as well as in the sub-Saharan Africa region, are difficult to measure due to the lack of U.S. monitoring of family planning programs once funding has ceased. See id. Public policy groups and advocacy organizations, such as Population Action International (PAI), have worked to document the global gag rule’s effects on the community-based distribution of HIV/AIDS services by visiting and collecting data from field sites in Zambia, Kenya, Ethiopia, and Romania. See, e.g., Kenya Impact Report, supra note 74; Zambia Impact Report, supra note 56.
134 See Memorandum from Arthur E. Dewey, Assistant Secretary of the Bureau of Population, Refugees and Migration, to Colin Powell, Secretary of State (Feb. 11, 2003) [hereinafter Dewey Memo], available at http://www.planetwire.org/wrap/files.fcgi/3844_State DeptMemo.htm (last visited Nov. 3, 2003).
135 See IPPF Annual Report, supra note 19, at 8 (pointing out that family planning programs are important for HIV/AIDS prevention because of their experience with STI prevention, condom distribution, and dealing with very personal aspects of clients’ lives).
136 All Things Considered: Expected Announcement by Bush Administration on Extending the Mexico City Policy to AIDS Funding (National Public Radio Broadcast, Feb. 28, 2003) (interview of the Executive Director of the U.S.-based Center for Health and Gender Equity). For instance, approximately 30–40% of women visiting family planning centers in Zimbabwe are thought to be HIV-infected. Sutherland, supra note 10.
137 See Turnbull Interview, supra note 73.
138 See id.
139 See id.
140 See Naomi Rutenberg et al., Reproductive Decision-Making in the Context of HIV and AIDS: A Qualitative Study in Ndola, Zambia, International Family Planning Perspectives, Sept. 2000, at 124–30 (stating that all women should have the right to bear or not to bear children); Anna Vrska, HIV and Pregnancy: A Growing List of Options, but No Easy Choices, 1997 Berkeley Med. J. (discussing the “immensely complex and overwhelming” nature of “dealing with the emotional and physical consequences of HIV” and abortion), at http://www.ocf.berkeley.edu/~issues/fall97/Pregnant.html (last visited Oct. 17, 2003). “For pregnant women with HIV there are many options to consider and difficult decisions to make. It is impossible to say which is correct or to judge the decisions made because each case is unique.” Vrska, supra. The term “voluntary” is used to distinguish a woman’s independent, affirmative decision to terminate her pregnancy, from “coerced” abortion, where a government or other entity forces a woman to undergo an abortion against her will. See, e.g., Mar. 28 Memorandum, supra note 6, at 874 (using the term “voluntary”); Nowels, supra note 4, at 8–11 (discussing the issue of coerced abortion in China in the context of UNFPA funding). The sub-Saharan African countries where abortion is legal under certain circumstances and which receive U.S. population assistance funds are Cameroon, Ghana, Liberia, Mali, Rwanda, Zambia and Zimbabwe. See NGOs in 56 Countries, supra note 23.
141 See Anneke Meerkotter, Providing Options to Pregnant Women Living with HIV/AIDS, 6 GenderNews 4 (Gender Project, Community Law Centre, University of the Western Cape, South Africa) (newsletter reporting on a Constitutional Court judgment regarding the provision of Nevirapine to reduce the risk of mother-to-child transmission of HIV), available at http://www.communitylawcentre.org.za/gender/gendernews2002/2002 _1_otions. php (last visited Oct. 16, 2003).
142 See United Nations, HIV/AIDS and Human Rights International Guidelines: Second International Consultation on HIV/AIDS and Human Rights, HR/PUB/ 98/1, at 26–28 (1998) (recognizing women’s vulnerability to HIV/AIDS, as well as the discrimination and stigmatization that women with HIV/AIDS face); Bruyn, supra note 22, at 16; PATH Dialogue, supra note 17, at 37. Ipas reports several examples of women with HIV/AIDS who have wanted to terminate their pregnancies but did not due to the costs of abortion, negative attitudes and discrimination, and a lack of information about abortion safety and availability. Bruyn, supra note 22, at 17–20.
143 See PATH Dialogue, supra note 17, at 37; Nina Brown, Boosting the Spirit of an HIV-Positive Woman, Body Positive, Apr. 1997 (describing personal experiences in which a doctor and hospital health care providers treated a patient without respect, reportedly because she was HIV-positive), at http://www.thebody.com/bp/apr97/boost.html (last visited Oct. 16, 2003). Discrimination against one’s HIV status may manifest itself in social ostracization, marginalization, or even murder, as the killing of one woman in South Africa in 1999 shows. PATH Dialogue, supra note 17, at 37. Regarding stigma, many HIV-positive pregnant women face social pressure not to give birth. See, e.g., Rebecca Denison, The Toughest Decision I Ever Made: How My Husband and I Approached Pregnancy, Knowing that I Have HIV, AIDS Care, Oct. 1998 (stating that “society sides with older women who want children, even as it condemns HIV-positive women for wanting the same thing”), at http://www.thebody.com/hivnews/aidscare/oct98/decision.html (last visited Oct. 16, 2003); see also Gender and HIV/AIDS, Gender & Dev. in Brief, Mar. 2003, at 11 (on file with author) (discussing how gender inequality, stigmatization, and discrimination drive HIV/AIDS).
144 See Rutenberg, supra note 140, at 124. A study of pregnant women who are HIV-positive in Zambia concludes, “Family planning programs could help clients ascertain their own risk of infection and thus reduce perinatal transmission of HIV by frankly discussing risk factors, offering HIV testing and assisting couples affected by HIV make better choices about contraceptive methods.” Id.
145 See Bruyn, supra note 22, at 16–17. Women in sub-Saharan Africa may choose to terminate their pregnancies for reasons unrelated to HIV/AIDS, of course. See, e.g., Abortion and Human Rights in Sub-Saharan Africa, Initiatives in Reprod. Health Pol’y (Ipas, Chapel Hill, N.C.), July 2000, at 7, 9, 11. In Senegal, Rwanda and Uganda, for instance, social pressures not to have children outside wedlock or before marriage have caused many women to seek abortion, including illegal and unsafe abortion. See id. at 7, 9, 10–11. Women in Uganda have also been reported to choose abortion in order to maintain jobs or pursue education. See id. at 9.
146 See Elizabeth Glazer Pediatric AIDS Found. (EGPAF), 2001 Annual Report 24–25 (2002) [hereinafter EGPAF Annual Report].
147 EGPAF Annual Report, supra note 146, at 24. In the year 2000 alone, an estimated 600,000 infants acquired HIV, over 90% of them through mother-to-child transmission. UNAIDS, Children and Young People in a World of AIDS 9 (2001). About 90% of those mother-to-child transmissions occurred in sub-Saharan Africa. Id.
148 See USAID Efforts to Prevent MTCT, supra note 25, at 3, 7 (indicating that feeding infants with formula is safer than breastfeeding).
149 EGPAF Annual Report, supra note 146, at 24.
150 USAID Efforts to Prevent MTCT, supra note 25, at 3, 7.
151 Id., at 5. USAID asserts, “The risk of infection is thought to be 5–10% during pregnancy; 10–20% during labor and delivery, and 10–20% during breast-feeding (as typically practiced).” Id.
152 See id. at 7–5 (describing effective “MTCT interventions,” as well as USAID’s work in this area); see, e.g., EGPAF Annual Report, supra note 146, at 40, 42–43; Press Release, Elizabeth Glaser Scientist Award, EGPAF (Feb. 2003) (on file with author) (acknowledging the work of scientists who are making advances in the field of pediatric AIDS research).
153 See USAID Efforts to Prevent MTCT, supra note 25, at 3, 7.
154 PATH Dialogue, supra note 17, at 37. “Faced with the prospect of protecting and caring for another life yet to begin, pregnant women may find the potential consequences of being HIV+ to be worse than death.” Id.
155 EGPAF, Personal Stories (quoting Florence Ngobeni from “A Mother’s Story”), at http://www.pedaids.org/glob_stories.html (last visited Sept. 18, 2003).
156 Denison, supra note 143. Denison recounted a conversation with an HIV-positive friend whose daughter died of AIDS at age 3. Id. Her friend said that her daughter “suffered every day of her life . . . . If your child gets AIDS, it’s not you who suffers, it’s your child.” Id.
157 See Rutenberg, supra note 140, at 124.
158 UNAIDS, Investing in Our Future: Psychosocial Support for Children Affected by HIV/AIDS: A Case Study in Zimbabwe and the United Republic of Tanzania 6 (2001) [hereinafter Psychosocial Support].
159 See id. at 10–11 (quoting a personal account by Maria Ndlovu entitled Living Positively with HIV: A Mother’s Perspective).
160 Id.
161 Id. at 20.
162 See id.; USAID et al., Children on the Brink 2002: A Joint Report on Orphan Estimates and Program Strategies 9 [hereinafter Children on the Brink].
163 Children on the Brink, supra note 162, at 9; USAID, USAID Project Profiles: Children Affected by HIV/AIDS 1 (2d ed., 2002) (providing detailed information about USAID initiatives to help children affected by AIDS in specific countries).
164 Psychosocial Support, supra note 158, at 22.
165 Id. at 21.
166 United Nations Children’s Fund (UNICEF) et al., Young People and HIV/ AIDS: Opportunity in Crisis 23 (2002).
167 Id.
168 Id.; Children on the Brink, supra note 162, at 9.
169 Children on the Brink, supra note 162, at 9; see UNICEF, supra note 166, at 23.
170 See Bruyn, supra note 22, at 6–7.
171 Id. at 6.
172 See id.; Rutenberg, supra note 140, at 124; see also Pregnancy and HIV Transmission, WISE Words, no. 4 (June 1999) (recommending that a pregnant woman with HIV/AIDS who wants to proceed with her pregnancy should be supported in her decision), available at http://www.thebody.com/ pinf/wise_words/jun99/pregnancy.html.
173 CRLP, Women’s Reproductive Rights in Zimbabwe: A Shadow Report 8, 21 n.87 (1997) [hereinafter Zimbabwe Report] (citing Termination of Pregnancy Act, ch. 15:10, � 2(1) (1977)). The Termination of Pregnancy Act prohibits abortion generally but includes an expanded scope of exceptions compared to the Mexico City Policy. See Mar. 28 Memorandum, supra note 6, at 877, 878, 883, 884; Zimbabwe Report, supra, at 21 n.87. The 1977 Act also permits abortion when there is a severe risk that the child would suffer from a permanent and serious physical or mental handicap, or when the pregnancy was the probable result of intercourse by a mentally handicapped woman or girl. See Zimbabwe Report, supra, at 8, 21 n.87 (noting that “[i]ntercourse with a mentally handicapped woman or girl is a criminal offense” pursuant to the Criminal Law Amendment Act, ch. 9:05 � 3(d)).
174 See Zimbabwe Report, supra note 173, at 8, 21 n.87.
175 See id. See generally Mar. 28 Memorandum, supra note 6.
176 See generally Mar. 28 Memorandum, supra note 6
177 See Bruyn, supra note 22, at 15.
178 See id.; Rutenberg, supra note 140, at 124; cf. National AIDS Control Org., Gov‘t of India, Ministry of Health & Family Welfare, Standard Treatment Guidelines for HIV Infection 2 (2003) (describing that India’s national AIDS policy states, “HIV positive women should have complete choice in making decision[s] regarding pregnancy and childbirth . . . [including] either to go ahead or terminate the pregnancy”); Elizabeth A. Preble & Ellen G. Piwoz, LINKAGES Project, Prevention of Mother-To-Child Transmission of HIV in Asia: Practical Guidance for Programs 12 (2002) (listing pregnancy termination as an effective means for preventing mother-to-child transmission of HIV).
179 See Press Release, Hon. Neil Abercrombie, Curbs in HIV/AIDS Fight Would Be “A Grave and Costly Mistake” (Feb. 24, 2003) [hereinafter Abercrombie] (disapproving of expanding the Mexico City Policy to international HIV/AIDS assistance), at http://www .house.gov/abercrombie/fa.aids.03ahtm.htm (last visited Oct. 27, 2003); Press Release, Hon. Barbara Lee, Dangers of Global Gag Rule for Women’s Reproductive Rights and Treatment of HIV/AIDS (Mar. 6, 2003) [hereinafter Lee Press Release] (highlighting public statements by Congresswoman Barbara Lee, in which Lee stated that applying the global gag rule to HIV/AIDS would “undercut the sincerity” of Bush’s AIDS initiative), at http://www.house.gov/lee/releases/03March06.htm (last visited Oct. 27, 2003); see Bob Cusack, AIDS Bill Moves Forward; Lawmakers Sidestep Abortion, Hill, Mar. 19, 2003, at 37 (indicating that the White House’s proposal was first made public when an internal State Department memorandum was leaked in February of 2003).
180 Dewey Memo, supra note 134 (providing the text of the memorandum). Additionally, statements by Secretary Powell at a subsequent congressional hearing intimated that the White House was considering expanding the Mexico City Policy. See Abercrombie, supra note 179 (responding to suggestions made by Powell at committee hearing). See generally Hon. Colin Powell, S. Budget Comm., 108th Cong., Statement on President’s International Affairs Budget (Comm. Print 2003).
181 See Dewey Memo, supra note 134. Although it may be argued that the Policy’s extension would harm these other reproductive health programs, this Note focuses on the Policy’s extension to HIV/AIDS funding because the latter has generated the most controversy. See Kati Marton, The New AIDS Fight; Protect Women, Stop a Disease, N.Y. Times, Mar. 1, 2003, at A19; Press Release, IPPF, 130 NGOs Sign Letter to Bush Denouncing Use of Global Gag Rule for AIDS Money (Mar. 5, 2003) (on file with author).
182 Associated Press, Lawmakers Agree on AIDS Package, Chi. Tribune, Mar. 18, 2003, at 9; Cusack, supra note179, at 37; Edward Epstein, House Set to OK AIDS Funding; Abortion Gag Rule Has Barred Some Programs Overseas, S.F. Chron., Mar. 17, 2003, at A1; see Dewey Memo, supra note 134. Reflecting a compromise between the White House and congressional leaders, the House Committee on International Relations reported in favor of the AIDS bill without a proposed extension in April of 2003. Associated Press, supra , at 9; Cusack, supra note 179, at 37; Epstein, supra, at A1; see also Dewey Memo, supra note 139 (advising Powell that this issue would cause controversy and delay in the passage of the FY2003 Omnibus Appropriations Bill or the FY2004 Foreign Operations Bill); see generally H.R. Rep. No. 108–60.
183 Corine Hegland, Hyde-Bound It Isn’t, Nat’l. J., June 28, 2003, at 2106–07. The Hill newspaper reported, “Congressional aides contend that Hyde . . . was well aware that any Mexico City provision would scuttle the legislation.” Cusack, supra note 179, at 37. Although President Bush acknowledged Senators Joe Biden, Bill Frist, and Richard Lugar for playing a major role in developing and passing the bill, the House of Representatives passed the bill out of committee first, and the Senate adopted the House version of the bill rather than passing its own version. Hegland, supra. Claiming credit for the House bill, Hyde was quoted saying that the President praised the senators, “but by God, it was our bill that he signed.” Id.
184 United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. �� 7601–7682 (2003). See generally Larry Nowels, Cong. Research Serv., AIDS in Africa (2003) (providing legislative details and policy analysis of the new global AIDS law).
185 See Cusack, supra note 179, at 37; Epstein, supra note 182, at A1; Lee Press Release, supra note 179; Telephone Interview with Molly Diachok, Policy Associate, Center for Reproductive Rights (Mar. 10, 2003) [hereinafter Diachok Interview].
186 See AIDS Funding: White House Hopes to Restrict AIDS Money for Foreign Family Planning Groups, AIDS Weekly, Mar. 10, 2003, at 8 [hereinafter AIDS Weekly]; see also Dewey Memo, supra note 134 (predicting that conservatives on Capitol Hill “will not support a policy that provides [a] carve out for HIV/AIDS projects,” while moderates and liberals “of both sides of the aisle will support such a carve out”). National “pro-life” groups also support the policy extension because they do not want U.S. aid to support groups that encourage HIV-infected pregnant women to seek abortion. AIDS Weekly, supra, at 8.
187 See Foreign Assistance Act, 22 U.S.C. � 2151b(f)(1) (2000); infra Part I.
188 See Hearing, supra note 9, at 8 (statement of Hon. Smith); Bush Global Gag Rule, supra note 7, at 12; AIDS Weekly, supra note 186, at 8.
189 See Dewey Memo, supra note 134. Under one exception, foreign NGOs not otherwise compliant with the Mexico City Policy would be eligible for funding if they merely serve as a “pass-through to a subcontractor that is compliant.” Id.
190 See id. (stating, “Foreign NGOs that either perform or counsel abortions that also implement discrete HIV/AIDS projects would be eligible for funding these projects).
191 See Press Release, Physicians for Human Rights, Leading Health Professionals Urge President Bush to Not Expand Mexico City Doctrine (Mar. 4, 2003) (on file with author) [hereinafter Letter to Bush] (providing text of letter).
192 Letter to Bush, supra note 191.
193 See Telephone Interview with Natasha Bilimoria, Senior Public Policy Officer, Elizabeth Glaser Pediatric AIDS Foundation (EGPAF) (Mar. 12, 2003) [hereinafter Bilimoria Interview] (stating that EGPAF has never looked into the abortion-related activities of its grantees because its focus is “getting services to the ground” to prevent mother-to-child transmission of HIV infection).
194 See Bilimoria Interview, supra note 193; Press Release, EGPAF, Elizabeth Glaser Pediatric AIDS Foundation Awarded $100 million by United States Agency for International Development (July 31, 2002) [hereinafter EGPAF Press Release], at http://www.pedaids .org/july31_2002_release.html (last visited Oct. 27, 2003).
195 Bilimoria Interview, supra note 193.
196 See Jan. 22 Memorandum, supra note 5, at 216; Bilimoria Interview, supra note 193; EGPAF Press Release, supra note 198.
197 See Jan. 22 Memorandum, supra note 5, at 216; EGPAF Press Release, supra note 194. EGPAF has never before taken a political stance on abortion and has never looked into the abortion-related activities of its subgrantees. See Bilimoria Interview, supra note 193.
198 See EGPAF Annual Report, supra note 146, at 29–31.
199 See Hearing, supra note 9, at 55 (statement of Dr. Pellegrom); PopBriefs, supra note 1, at 1; Maximizing Access, supra note 86.
200 See Hearing, supra note 9, at 55 (statement of Dr. Pellegrom); PopBriefs, supra note 1, at 1; Maximizing Access, supra note 86.
201 H.R. Rep. No. 108–60, at 5, 13; Bush, supra note 128.
202 See H.R. Rep. No. 108–60, at 5, 13.
203 See Marton, supra note 181, at A19; see also Ctr. for Reprod. Rights, Expanded Global Gag Rule Limits Women’s Rights and Endangers their Well-being (2003) (on file with author) (examining the impact of the proposed extension on fourteen countries that have been named as recipients of the Bush global AIDS initiative).
204 See, e.g., Clinton, supra note 38, at 10 (rescinding U.S.-imposed anti-abortion restrictions, and thereby implicitly allowing existing legal standards to govern).
205 See Mar. 28 Memorandum, supra note 6, at 873 (noting that the Policy remained in effect until President Clinton rescinded it); The War Against Women, N.Y. Times, Jan. 12, 2003, at 114 (highlighting several anti-abortion acts by the Bush administration, which include withdrawing information about abortion and contraception from federal government web sites, banning federal funds for new embryonic stem cell research, re-designating the Children’s Health Insurance Program to cover “unborn children” rather than pregnant women, supporting a ban on so-called partial-birth abortions, and appointing an “anti-choice” Attorney General, John Ashcroft).
206 Memorandum: Assistance for Voluntary Population Planning, 68 Fed. Reg. 52,323 (Aug. 29, 2003) [hereinafter Aug. 29 Memorandum]; see infra note 32. President Bush reportedly issued this order because the State Department wanted to withdraw funding from Marie Stopes International, a large and active organization that provides reproductive health and HIV/AIDS services worldwide. Darlene Superville, Bush Broadens Global Gag Rule on Abortion, Associated Press, Aug. 30, 2003; see Aug. 29 Memorandum, supra at 52,323. Even though administration officials admitted to having no evidence that the group supported involuntary or coerced abortion, the Bush administration expressed discontent with the group’s abortion-related activities. Superville, supra; see infra note 32.
207 See, e.g., Global Democracy Promotion Act of 2003, H.R. 2952, 108th Cong. (2003); Global Democracy Promotion Act of 2001, S. 367, H.R. 755, 107th Cong. (2001).
208 See H.R. 2952; H.R. 755; see also Bush Global Gag Rule, supra note 7, at 14; Nowels, supra note 4, at 1, 16; Greco, supra note 4, at 10. Congress may override the president’s executive action through bicameral passage and presidential enactment of legislation. See U.S. Const. art. I, � 7 (providing that “[e]very Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary . . . shall be presented to the President of the United States . . . ; shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives . . . .”).
209 See H.R. 2952; H.R. 755.
210 See Greco, supra note 4, at 10; see also Foreign Relations Authorization Act, H.R. 1646, 107th Cong. (2001); H.R. 755.
211 See H.R. 2952 (introduced in the House of Representatives on July 25, 2003).
212 Nowels, supra note 4, at 1.
213 See Diachok Interview, supra note 185.
214 See id.
215 See Epstein, supra note 182, at A1. Part of the administration’s willingness to compromise may have derived from the considerable public outcry about the possible extension. See, e.g., Letter to Bush, supra note 191.
216 See Nowels, supra note 4, at 1 (noting the White House’s statement that President Bush would veto any legislation that includes an amendment to overturn the Mexico City Policy); see, e.g., Aug. 29 Memorandum, supra note 206, at 52,323. The recent order extending the Policy to State Department funding explicitly exempts foreign aid furnished pursuant to the global AIDS law, but the narrow nature of this exemption could fail to prevent lawmakers from applying the Policy to HIV/AIDS funding. See id.
217 See id.; Cusack, supra note 179, at 37; Epstein, supra note 182, at A1; Letter to Bush, supra note 191.