[*PG187]THE “MEXICO CITY POLICY” AND ITS EFFECTS ON HIV/AIDS SERVICES IN SUB-SAHARAN AFRICA

Allegra A. Jones*

Abstract:  The United States recently joined the global effort to combat the HIV/AIDS pandemic in sub-Saharan Africa and other developing regions when it committed more than $15 billion to international HIV/AIDS initiatives. In the spirit of strengthening U.S. participation in this effort, this Note encourages U.S. leaders to reevaluate the Mexico City Policy, a foreign policy that indirectly affects numerous people living with HIV/AIDS. Commonly known as the global gag rule, the Mexico City Policy prohibits most foreign non-governmental organizations that receive U.S. family planning funding from providing or promoting abortion services. This Note analyzes the Mexico City Policy’s impact on HIV/AIDS services provided by family planning clinics in sub-Saharan Africa, as well as the potential implications of an executive branch proposal that would expand the policy beyond family planning to HIV/AIDS assistance. This Note concludes that congressional repeal of the Mexico City Policy is the most plausible remedy.

Introduction

Recognizing that uncontrolled population growth and poor public health undermines economic stability and living standards in developing countries, the United States has contributed to international family planning and voluntary population control programs since the 1960s.1 In general, family planning clinics provide prenatal care, con[*PG188]traception, counseling, medical services, and information about birth spacing, fertility, and sexually transmitted infections (STIs).2 These clinics are crucial for ensuring individuals’ and couples’ access to sexual and reproductive health care, particularly in developing countries where high maternal and child mortality rates continue to diminish the quality of life.3 Politically, however, international family planning has been controversial in the United States because it often includes abortion counseling, referrals, and related medical care.4

On January 22, 2001, President George W. Bush issued an executive memorandum blocking U.S. family planning funding to any foreign nongovernmental organization (NGO) that supports abortion, even with its own non-U.S. funds.5 Under this policy, in order to receive U.S. funding, NGOs that provide family planning services must cease to [*PG189]perform and “actively promote” abortion-related services.6 Specifically, NGOs must not participate in public education campaigns about reproductive choice, provide patient referrals to facilities where abortion may be obtained, counsel on abortion as a medical option, or lobby for government reform regarding the liberalization of abortion laws.7

Officially called the “Mexico City Policy,” this condition on foreign assistance was first announced by Reagan administration officials at the United Nations (UN) International Conference on Population in Mexico City in 1984.8 The Policy is also commonly called the “global gag rule” because it limits the advice medical professionals abroad may give their patients, should their organization accept U.S. funding.9

In developing countries with poor health conditions and insufficient resources, family planning clinics are often the best, if not the only, places where individuals can obtain medical advice and resources for protecting themselves against STIs such as human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS).10 In 2002, more than 90% of the 42 million people living with [*PG190]HIV/AIDS globally lived in developing nations.11 This proportion is expected to increase because the AIDS virus spreads rapidly in developing countries that have inadequate resources for prevention and treatment, as well as poor health-care systems.12 Worldwide, the region most affected by AIDS is sub-Saharan Africa, where AIDS is the leading cause of death and has killed more than 19.4 million people.13 A news editor of The Namibian, a leading newspaper in Namibia, writes, “when it comes to implementation of [AIDS prevention] in the Third World, family planning centers literally offer a lifeline . . . . The challenge is nowhere greater than in sub-Saharan Africa—the epicenter of the AIDS pandemic.”14

In the fight against HIV/AIDS, family planning centers are particularly vital for women, who are at greater risk for contracting HIV or AIDS than men.15 In sub-Saharan Africa, 58% of those living with HIV/AIDS are women.16 Women and girls are particularly susceptible because HIV transmission to women is biologically more “efficient” than transmission to men and, in many circumstances, women lack power to negotiate safer sexual practices due to gender inequality.17 Through education, counseling, and condom distribution, family [*PG191]planning centers can help women respond to high-risk situations and avoid contracting HIV.18

As it stands, the Mexico City Policy forces the recipients of U.S. family planning funding to make value judgments about the services they provide.19 Family planning organizations must decide whether to accept U.S. funding and cease their abortion-related services, or to reject U.S. funding and thus limit their potential services due to constrained budgets.20 Moreover, regardless of whether these groups decide to assist individuals with abortion-related services, the global gag rule forces organizations to prioritize which communities they want to serve: women seeking abortions or all other women, children, and families.21

Further, the rule does not allow pregnant women living with HIV/AIDS, for whom abortion may be a legal option domestically, full access to information regarding their medical options.22 Women in Cameroon, Ghana, Liberia, Mali, Rwanda, Zambia, and Zimbabwe are permitted to have abortions under certain limited circumstances, such as to protect their mental or physical health, or on socioeconomic grounds.23 A report by Ipas, a non-profit agency focusing on women’s reproductive health, states that “2.5 million of the 200 mil[*PG192]lion women who become pregnant each year are HIV-positive.”24 In sub-Saharan Africa, a growing number of women are testing positive for HIV at prenatal clinics, which indicates that their babies may become infected.25 Yet, because of the Mexico City Policy, women who visit many U.S.-funded clinics will not be made aware of their legal rights.26 Thus, the Mexico City Policy is not only an abortion issue, but is also an HIV/AIDS issue.27

This Note examines the Mexico City Policy and explores its effect on HIV/AIDS services in sub-Saharan Africa. Part I describes the Policy’s political background in the United States and its current status. Part II sets forth legal arguments against the Policy, as well as responses to arguments by its proponents. Part III examines the existing Policy’s negative implications for HIV/AIDS treatment in the family planning context in sub-Saharan Africa and discusses the potential impact of an executive proposal to apply the Policy to HIV/AIDS funding. Part IV presents legal suggestions for preventing the negative consequences of the Policy on HIV/AIDS services. This Note concludes that the Mexico City Policy must be abolished in order to end the Policy’s damaging effects on family planning centers that provide HIV/AIDS services and the individuals who rely on them for survival.

I.  Background of the Mexico City Policy

In 1961, Congress passed and President John F. Kennedy signed into law the Foreign Assistance Act, which authorized the president to provide funding for voluntary population planning programs on the terms and conditions determined by the president.28 The president’s constitutional authority to conduct foreign affairs provided the foundation for Congress’s conferral of such broad discretion to the presi[*PG193]dent.29 The United States Agency for International Development (USAID), an independent federal government agency, was created by executive order that same year, and has since remained the main U.S. agency through which foreign assistance is granted for international economic growth and global health.30

Congress typically appropriates funding to USAID every fiscal year.31 USAID then disperses the funds through cooperative agreements and grants to private agencies, foreign governments, domestic and foreign NGOs, and multilateral agencies such as the World Health Organization.32 The vast majority of USAID’s assistance for family planning and HIV/AIDS goes to NGOs in the field because [*PG194]they have direct connections to those in need of the services.33 NGOs use the money for contraceptive supplies, service delivery, public education and marketing, and training for medical and health care providers.34

Since 1973, when a provision known as the Helms Amendment was enacted, the use of U.S. funds “for the performance of abortions as a method of family planning or to motivate or coerce any person to practice abortions” has been prohibited.35 The Helms Amendment also prohibits the use of U.S. funds for biomedical research that relates to the “methods” or “performance” of abortions.36 Thus, since 1973, no U.S. taxpayer dollars have directly supported abortion-related services.37

President Reagan further extended these restrictions in 1984 by implementing the Mexico City Policy.38 This policy prohibited organizations receiving U.S. funds from using their own money to perform abortions, to lobby foreign governments for abortion legalization, or to conduct public education campaigns regarding the benefits or availability of abortion.39 Although USAID has traditionally funded some foreign governments to help them initiate voluntary family planning programs, the Reagan administration decided not to apply the Policy directly to foreign governments in order to respect their national sovereignty.40 Instead, the Policy applies to foreign NGOs, as [*PG195]well as domestic and international groups that provide U.S. population assistance to foreign NGOs.41

The Policy remained in place until President William J. Clinton rescinded it on January 22, 1993.42 During Clinton’s presidency, several congressional representatives sought repeatedly to attach provisions reinstating the Mexico City restrictions to foreign operations appropriations bills and State Department reauthorization bills.43 As an executive branch policy, however, the rule was not fully restored until President Bush reinstated it in 2001.44

A.  Current Status of the Policy

The current version of the Mexico City Policy resembles the original Reagan policy, except that it does not withhold funds from organizations that provide post-abortion medical treatment to women with injuries or illnesses caused by abortions.45 USAID first authorized the use of population funds for post-abortion treatment and counseling in 1994, when the Mexico City Policy was not in place.46 At the urging of leaders from NGOs that provided post-abortion care (PAC), USAID began funding PAC programs in order to address the issue of unsafe abortion, a major cause of maternal illness and mortality worldwide.47 [*PG196]When it re-implemented the Policy in 2001, the Bush administration added an exception for organizations that provide PAC.48

As with the earlier version of the Policy, the current Policy permits referrals for abortions or abortion services that are performed with NGOs’ own funds in order to save the life (but not health) of the mother.49 These services are also allowed if the mother is pregnant from rape or incest “because abortion under these circumstances is not a family planning act.”50 Additionally, health care providers may offer “passive responses” about abortion.51 The Policy’s language imposes strict circumstantial requirements on what constitutes a “passive response”:

[When] the question is specifically asked by a woman who is already pregnant, the woman clearly states that she has already decided to have a legal abortion, and the family planning counselor reasonably believes that the ethics of the medical profession in the country requires a response regarding where [the abortion] may be obtained safely.52

Because the conditions satisfying this scenario are so limited, USAID-funded clinics fear risking their budgets by providing any responses whatsoever and are often forced to turn women away.53 USAID repre[*PG197]sentatives strictly enforce the Policy, and organizations such as International Planned Parenthood Federation have lost up to $12 million in USAID grants for noncompliance.54

These exceptions are virtually meaningless in practice: the Policy has a chilling effect that deters USAID-funded clinics from treating women even in emergency situations for fear of losing funding.55 At a congressional hearing in 2001, New York Congresswoman Nita Lowey recounted the story of a nurse in Egypt who was afraid to treat or refer a woman bleeding from a botched abortion due to the possible negative consequences from the Mexico City Policy.56 As the accessibility of a family planning clinic can mean the difference between life and death for a woman suffering from an unsafe abortion, it is important to evaluate the practical effects of U.S. policy on family planning clinics and their services.57

B.  Practical Implications of the Policy

The Mexico City Policy has caused devastating consequences worldwide for organizations that provide both abortion-related care and other health care.58 Regardless of whether foreign NGOs decide to accept or reject U.S. funds, the Policy reduces organizations’ abilities to provide women and families with medical attention and information.59

[*PG198] Bolivia has the highest maternal mortality rate in Latin America.60 Complications from unsafe abortions kill one woman every day.61 In response to this horrific trend, fifteen NGOs joined together to lobby the government and promote public awareness of the situation.62 The imposition of the global gag rule, however, forced four of the NGOs to resign from the information campaign because communicating with the government about the negative effects of Bolivia’s abortion laws would have threatened their budgets.63 This resignation also cost them the ability to inform the public about their experiences and the need for reform.64 Had these four NGOs advocated anti-abortion reform, they would have been able to continue lobbying while receiving USAID funding.65 Yet they chose to comply with the Mexico City Policy, unlike another NGO in the Bolivia campaign that refused to compromise and lost a quarter of its budget due to noncompliance with the global gag rule.66 This drastic budget cut limited the latter group’s outreach potential for providing health services.67

Nepal’s maternal mortality rate is among the highest in South Asia, in part due to the numerous deaths caused by unsafe abortion.68 Recognizing that the criminalization of abortion was greatly contributing to Nepal’s high maternal morbidity and mortality rates, the [*PG199]Nepalese Ministry of Health developed a plan to decriminalize abortion; however, the plan involved forming a coalition of NGOs to create advocacy strategies.69 A number of these NGOs received U.S. funds and were thus unable to participate in the Ministry’s plan without losing their funding.70 Even though Nepal eventually legalized abortion in a historic move in 2002, the Mexico City Policy will continue to reduce the ability of Nepalese NGOs to provide safe and legal abortion services, since U.S. funding is the largest source of foreign family planning assistance in Nepal.71 As a result, organizations will likely choose to continue receiving USAID funds rather than risking bankruptcy.72

Another practical effect of the Mexico City Policy has been the closure of family planning clinics due to USAID’s withdrawal of funding, notably in sub-Saharan Africa.73 Seventeen centers in Uganda, five centers in Kenya, one outreach program serving poor communities in Ethiopia, and several clinics in Tanzania have closed for this reason.74 In Kenya alone, the five clinics that closed served tens of [*PG200]thousands of women.75 They provided basic services that many poor women could not otherwise afford or access, including well-baby care, pre- and post-natal obstetric care, HIV testing and counseling, and contraception.76 In order to avoid closing seven more health posts and one maternal nursing home when President Bush imposed the global gag rule, health care provider Marie Stopes International of Kenya laid off one-fifth of its staff, cut the remaining employees’ salaries, reorganized its clinic structure, and increased client fees.77 The country’s other leading reproductive health provider, the Family Planning Association of Kenya, laid off nearly one-third of its staff, raised patient fees, and cut salaries in order to keep its remaining clinics open and running without U.S. funding.78

Similarly, the global gag rule has cost the Family Guidance Association of Ethiopia—which runs 671 community-based reproductive health care sites, 24 youth centers, and 18 clinics—more than a half-million dollars.79 The Association does not provide abortion services because abortion is illegal in Ethiopia.80 Nevertheless, by communicating the fact that unsafe abortion was claiming the lives of Ethiopian mothers to local policymakers, the group forfeited its U.S. funding, which resulted in a loss of services to 301,054 women and 229,947 men living in urban areas.81 Clearly, the women and families who lost access to these resources and clinics were the true victims of the Mexico City Policy.82

In addition, the Mexico City Policy has forced abortion politics into NGOs’ partnering selections by shifting the criteria that organizations receiving USAID grants rely upon to select foreign partners.83 Specifically, the Policy has forced groups that receive USAID grants and disperse this funding to foreign programs to judge the abortion stance of their potential grantees, rather than allowing them to select programs that could provide increased access to quality family plan[*PG201]ning services.84 For example, Pathfinder International has conducted reproductive health work abroad for more than forty-five years.85 Without the rule, Pathfinder would create local partnerships based on a program’s cost effectiveness, its capacity to reach the “poorest of the poor,” its commitment to helping clients, and the quality of care it provides.86 Because of the global gag rule, however, Pathfinder’s overriding question has become, “How against abortion is this organization?”87 This consequence of the Mexico City Policy clearly conflicts with USAID’s stated goals of “maximizing access to and improving the quality of family planning.”88

Accordingly, the Mexico City Policy is harmful not only because it leads to clinic closures and a reduction in available services, but also because it allows abortion politics to impede the provision of health care to needy populations.89 Because the Policy’s true victims are “people who can’t vote [President Bush] out of office,” it is relevant to examine non-legislative methods for challenging the Policy, such as through the judicial system.90

II.  The Mexico City Policy’s Violation of Legal Rights

Lawmakers, advocacy organizations, and litigants have set forth legal arguments both for and against the Mexico City Policy.91 Support[*PG202]ers in Congress have argued that it is the only means of preventing U.S. funds from indirectly supporting abortion.92 Under this view, U.S. funding to groups that support abortion might “free up” other, non-USAID funds for abortion-related services.93 Federal courts, however, have rejected the view that money is “fungible” when it pertains to abortion service providers in the United States.94 The U.S. Court of Appeals for the Ninth Circuit found that “the freeing-up theory cannot justify withdrawing all state funds from otherwise eligible entities merely because they engage in abortion-related activities disfavored by the state.”95 No court, however, has extended this holding to foreign NGOs.96

Several legal scholars and advocates have developed arguments opposing the Mexico City Policy based on domestic and international guarantees of free speech and expression.97 Although these groups have been largely unsuccessful in litigating their claims, the merits of their arguments are compelling and deserve attention in the legislative arena.98

[*PG203]A.  Violation of U.S. Law

The Policy’s provisions prohibiting advocacy that “actively promotes abortion” are inconsistent with the First and Fourteenth Amendments of the U.S. Constitution because they restrict U.S.-based organizations’ communication activities, discriminate on the basis of viewpoint, and unfairly place U.S.-based NGOs that advocate anti-abortion views abroad at an advantage over pro-choice NGOs trying to do the same work.99 The Policy restricts U.S.-funded foreign NGOs that support legalizing, decriminalizing, or liberalizing abortion laws from communication activities, such as organizing or distributing information during public debates or media events, participating in public fora including internet discussions, testifying before or providing briefings to the U.S. Congress, or attending or speaking publicly at UN conferences.100 Hence, when asked to testify before the U.S. Congress in 2001 at a hearing on the Mexico City Policy’s effects on international family planning funding, the President of a Peruvian NGO had to appear in a U.S. federal court to receive legal permission to testify without threatening her group’s funding.101

The Center for Reproductive Rights, formerly known as the Center for Law and Reproductive Policy (CRLP), is a U.S.-based organization that advocates for reproductive health law reform in the United [*PG204]States and abroad.102 It brought an unprecedented lawsuit against President Bush in 2002, claiming, in part, that the gag rule violated its First Amendment rights by impeding its ability to lobby for abortion reform in foreign countries.103 Because it regularly works with “gagged” NGOs, the organization claimed that the implementation of President Bush’s restrictions violated its First Amendment rights to freedom of speech, freedom of peaceable assembly and association, and freedom to petition the government for redress of grievances.104 In dismissing CRLP v. Bush, the U.S. Court of Appeals for the Second Circuit relied on Planned Parenthood Federation of America (PPFA) v. Agency for International Development (AID), which held that any impairment of PPFA’s freedom of speech, association, or privacy by the Mexico City Policy was permissible because it rationally furthered a legitimate governmental interest using the least restrictive means.105 Reasoning that the plaintiffs in CRLP were not legally distinguishable from those in PPFA, the CRLP court implicitly determined that the Policy rationally furthered the legitimate governmental objective of refraining from funding abortion overseas, and the Policy also accomplished the government’s objective by using the least restrictive means.106

Opponents of the global gag rule are also concerned about the rule’s viewpoint-based discrimination of speech.107 The rule permits [*PG205]anti-abortion communications but prohibits pro-choice communications by foreign NGOs.108 This particular restriction does not apply to domestic NGOs because it would violate their First Amendment rights to free speech, but foreign groups cannot invoke the First Amendment, as they do not receive protection under the U.S. Constitution.109

CRLP challenged this aspect of the Policy by claiming that it violated the organization’s Fourteenth Amendment right to equal protection of the laws.110 Specifically, the group maintained that the Policy put anti-abortion groups at an unfair advantage over CRLP when communicating with foreign NGOs and advocating for abortion law reform.111 Although the court acknowledged that the Policy “bestowed a benefit on [CRLP’s] competitive adversaries” engaged in advocacy, it dismissed this claim, finding that the government’s preference for the anti-abortion position was rational.112

B.  Violation of International Human Rights Law

The Mexico City Policy undoubtedly violates the free speech guarantees of international human rights instruments to which the United States is a party.113 The Universal Declaration of Human Rights (UDHR) was adopted without dissent by the UN General Assembly in 1948.114 The principles expressed in the UDHR include that all men and women are entitled to the right to freedom of opinion and expression.115 These principles are legally binding on the U.S. through the International Covenant on Civil and Political Rights, which states: “Everyone shall have the right to hold opinions without interference . . . . Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, [*PG206]in writing or in print . . . .”116 The global gag rule expressly violates the spirit of this agreement, as well as the explicit rights it seeks to protect.117 As such, the rule not only impairs the freedom of expression of U.S.-funded foreign NGOs that wish to pursue expressive communications with their own, separate funds, it also violates the rights of patients and citizens seeking medical advice to be fully informed.118

International human rights law, however, does not provide a particularly powerful means for attacking the Policy because many international treaties lack enforcement mechanisms and offer limited fora for challenging violations.119 One human rights law scholar points out that the effectiveness of a challenge to the Mexico City Policy “need not be based upon a final decision of [an] adjudicatory body.”120 Rather the “mobilization of public opinion” is more likely to reverse it.121

Furthermore, abortion arguments based on human rights law tend to be unpersuasive because they are malleable, depending on one’s political perspective on abortion.122 They may be used to support either a fetus’s right to life or a woman’s right to privacy, liberty, [*PG207]or self-determination.123 As a researcher of international and comparative law observes, human rights arguments regarding abortion frequently oversimplify matters because they pit the “‘rights’ of the unborn against the ‘rights’ of the mother, rather than looking at the actual relationship between them.”124 Viewing abortion as a phenomenon within a social context rather than a question of competing rights is a more useful approach.125 Thus, it is appropriate to examine the Mexico City Policy and its practical implications for women, families, and abortion in a very specific context: the AIDS crisis in sub-Saharan Africa.126

III.  HIV/AIDS Services in sub-Saharan Africa127

In his State of the Union address in January of 2003, President Bush announced his administration’s $15 billion initiative to combat the AIDS pandemic over the next five years.128 This initiative includes U.S. participation in the Global Fund to Fight AIDS, Tuberculosis, and Malaria, which is an independent partnership between governments of [*PG208]industrialized and developing countries, private corporations, foundations, and individuals.129 The administration proudly requested from Congress $500 million for the Global Fund, $540 million for USAID’s HIV/AIDS budget, and $500 million for a new International Mother and Child HIV Prevention Initiative, which seeks to prevent mother-to-child transmission of HIV/AIDS in Africa and the Caribbean.130

Undoubtedly, this assistance is desperately needed, particularly in sub-Saharan Africa, where one-quarter of the region’s population is expected to die from AIDS in the next ten years.131 Nevertheless, even as the Bush administration and Congress increase efforts to help those infected and affected by this pandemic, the 2001 re-imposition of the Mexico City Policy on family planning funding continues to undermine U.S. efforts to fight HIV/AIDS.132

A.  Current Effects on HIV/AIDS Services and Pregnant Women
Living with HIV/AIDS133

The Mexico City Policy currently applies to “family planning” funding, but not to U.S. funds designated for HIV/AIDS.134 As this Note has indicated, however, family planning clinics in sub-Saharan Africa are essential for providing HIV prevention and care, since many family planning clients have HIV/AIDS, and health care facilities, particularly in rural areas, may be scarce.135 According to one prominent commentator, “there is no distinction anymore betweenwhat’s family planning and what’s HIV” because many “women who [*PG209]are accessing contraception are at risk of HIV infection, and women who are HIV-infected may still be sexually active and in need of pregnancy prevention.”136 The integration of sexual health and HIV/AIDS programs increases the quality and effectiveness of clinics by allowing providers to share their expertise and learn from each other about effective ways to work with clients.137 Service integration also prevents the duplication of local services in certain areas, thereby allowing more efficient resource allocation among populations in need of family planning.138 Because family planning assistance serves people with HIV/AIDS or others seeking HIV/AIDS services, the Mexico City Policy’s negative impact on this population must be exposed in the policy and lawmaking arenas.139

The Mexico City Policy fails to address the complexities that HIV/AIDS raises for pregnant women in the reproductive health decision-making process by effectively foreclosing the option of voluntary, safe, legal abortion for many women suffering from HIV or AIDS in sub-Saharan Africa.140 Ensuring individuals’ access to uncensored information regarding their full range of reproductive rights is essen[*PG210]tial in the HIV/AIDS context.141 In sub-Saharan Africa, women are frequently prevented from exercising full control over their sexual and reproductive lives due to gender inequalities, societal or spousal pressures, lack of information, or lack of financial means to implement their decisions.142 HIV-positive or AIDS status adds to women’s vulnerability by creating pressure to conduct their reproductive lives in certain ways based on the stigma and discrimination they perceive from others, including even health professionals.143 Not only is full access to information and resources necessary for HIV/AIDS prevention, it is also crucial for pregnant women who have HIV or AIDS because they customarily face complex decisions regarding whether and how to proceed with their pregnancies.144

[*PG211] Women living with HIV/AIDS may wish to terminate their pregnancies for a number of HIV/AIDS-related reasons.145 Some women fear transmission of HIV to their fetuses or newborns.146 Worldwide, more than 2,000 children are infected with HIV every day.147 Compared with industrialized nations, developing countries experience proportionately higher rates of mother-to-child transmission due to inadequate resources and the prevalence of breast-feeding.148 In sub-Saharan Africa, up to 30% of pregnant women are infected with HIV and 25–35% of their children will be born infected.149 Mother-to-child transmission in this region is of particular concern due to the region’s high birth rates, high prevalence of HIV, high rates of HIV among women of reproductive age, and the sizeable population of women capable of bearing children.150

A fetus may contract HIV from his or her mother at any time during pregnancy, delivery, or after the baby is born through breast-milk.151 Based on the work of scientists and health professionals, methods for reducing the chances of mother-to-child transmission of HIV and methods for prolonging the disease’s progression in children are being developed, thereby creating hope for the lives of women and children living with HIV/AIDS.152 Voluntary HIV/AIDS testing, counseling, [*PG212]medical treatment plans, safe infant feeding methods, and elective cesarean delivery can reduce the likelihood of mother-to-child transmission; however, these services and drugs are only effective if they are available, accessible, and affordable for mothers.153

There are also moral and ethical dimensions to the risk of mother-to-child transmission.154 One HIV-positive mother from South Africa whose baby died of AIDS writes, “To have a baby die of AIDS is the most horrible thing because the child experiences a kind of pain that nobody can explain—not even a doctor. But a mother can feel it in her gut.”155 Another HIV-positive woman described her thoughts when facing the possibility of being pregnant, “It’s profoundly, deeply selfish to put a baby at risk.”156

Other pregnant women with HIV/AIDS in sub-Saharan Africa may seek abortions or information about abortion because they realize that even if their fetus escapes infection, the mother will likely die before the child becomes self-sufficient.157 UN statistics show that of the more than 13.2 million children who have been orphaned by the AIDS epidemic, 95% are from sub-Saharan Africa.158 The psychological and emotional trauma on both a mother who is dying and her child is immeasurable.159 A woman from South Africa wrote:

Apart from the pain, anxiety and the feeling of death being so near during the time of my HIV diagnosis, another hurdle and indescribable pain was when I had to disclose [my status] to my eldest child. I had never cried in front of anyone to whom I had told my status. On this particular day, [*PG213]when I tried to explain everything about my HIV status to my daughter, the tears kept flowing down.160

Children orphaned by AIDS experience trauma that can manifest itself in the form of depression, aggression, drug abuse, malnutrition, anxiety about the future, or developmental problems caused by the loss of consistent nurturing and guidance.161

In addition to the emotional and psychological toll, the economic burden on children affected by AIDS is significant.162 The presence of AIDS in a household often causes children to assume responsibility for generating income and providing food for their families, as well as caring for their ill family members.163 A case study by the Joint United Nations Programme on HIV/AIDS (UNAIDS) points out that “[t]he death of a mother or father[M1] can leave unsettled debts which impact negatively on the future care and resources left for the remaining children.”164 In Zimbabwe, when a family’s breadwinner is ill or its income is spent on medical treatment for HIV/AIDS, children are often forced to drop out of school and work.165 In Uganda, 25% of children whose parents have HIV/AIDS drop out of school.166 Children orphaned by AIDS often leave school to care for parents or younger siblings because they cannot pay school fees, or because of discrimination or emotional distress.167 These children are also at greater risk of illness, abuse, and sexual exploitation compared to children orphaned by other causes.168 Further, these factors increase orphaned children’s own chances of contracting HIV.169

Another consideration for pregnant women is that HIV/AIDS may significantly weaken their immune systems and jeopardize their health, as well as the health of their fetuses.170 A report published by Ipas explains:

[*PG214]Pregnancy in itself does not accelerate HIV progression in women who are in the earlier and asymptomatic stages of infection; the situation may be different for women with high viral loads and diagnoses of AIDS. Pregnancy complications that have been observed more frequently among pregnant [women living with HIV/AIDS] than HIV-negative women include genital and urinary tract infections, more frequent and severe blood loss, anemia, bacterial pneumonia, intrauterine growth retardation, preterm labor and premature rupture of membranes, premature delivery and low birth weights.171

The Mexico City Policy undermines the legal rights of women with HIV/AIDS and their partners to be respected and supported when seeking to learn about and exercise their full range of reproductive options.172 In Zimbabwe, for example, the 1977 Termination of Pregnancy Act provides that abortion may be legally performed when the pregnancy represents a serious threat to the woman’s physical health.173 This language would perhaps permit abortion based on the probable health risks that a woman with HIV/AIDS would experience with pregnancy.174 Yet the application of the Mexico City Policy to clinics that would otherwise provide these services deprives women of the ability to exercise their rights under the 1977 Act and control their reproductive health decisions.175

The Mexico City Policy admittedly does not interfere with a woman’s affirmative decision to bear children.176 HIV-positive women in countries including Kenya and South Africa have cited various rea[*PG215]sons for deciding to bear children, such as wanting to experience motherhood, wanting to be considered truly “adult” in society, wanting to leave something of themselves behind, and knowing that their children will find care once they die.177 In addition to supporting these decisions and helping such mothers prevent transmission to their children, however, protecting a woman’s legal right not to bear children is pivotal for preventing the spread of HIV/AIDS and contributing to HIV/AIDS development in sub-Saharan Africa.178

B.  The Harm of Extending the Mexico City Policy to HIV/AIDS Funding

A proposal that would extend the Mexico City Policy to U.S. funding of international HIV/AIDS programs further undermines the Bush administration’s global AIDS efforts.179 In February of 2003, a proposal that would require all foreign NGOs receiving U.S. funds for “reproductive health” to certify compliance with the Mexico City Policy was publicized by an unclassified briefing memorandum from a senior population official to Secretary of State Colin Powell.180 In addition to family planning, “reproductive health” would include pro[*PG216]grams to prevent and treat HIV/AIDS, sexually transmitted diseases, gender-based violence, maternal illness and mortality, and reproductive health education programs.181

Despite indications that the White House was considering either issuing an executive order or lobbying Congress to include the expanded Mexico City Policy in the global AIDS bill, the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, the Bush administration appears to have backed down from its initial stance due to pressure from congressional leaders who feared that the issue would hold up passage of the global AIDS bill.182 Reportedly, Republican Congressman Henry Hyde, an adamant opponent of abortion and chairman of the House of Representatives Committee of International Relations, insisted that policymakers refrain from attaching any amendments regarding the Mexico City Policy to the global AIDS bill.183 Congress passed the bill without extending the Mexico City Policy and President Bush signed it into law on May 27, 2003.184 This substantial new commitment of U.S. HIV/AIDS funding [*PG217]is historic and certainly deserves praise, but the White House’s lack of an express statement that it will refrain from extending the Policy to HIV/AIDS funding in the future continues to undermine the sincerity of the Bush administration’s initiative.185

Supporters of expanding the Mexico City Policy want to ensure that new federal assistance for HIV/AIDS does not promote abortion services.186 As this Note has demonstrated, however, U.S. funds have not directly supported abortion activities since the passage of the Helms Amendment in 1973.187 Moreover, the unconvincing argument that U.S. assistance might be “fungible” simply does not justify withholding funds and resources from desperately needy populations in sub-Saharan Africa.188

In recommending this policy expansion to the White House, the Assistant Secretary of the Bureau of Population, Refugees and Migration proposed limited exceptions.189 The exception that generated controversy in the NGO community provided that otherwise noncompliant foreign NGOs that implemented discrete HIV/AIDS projects could receive U.S. funding and continue providing abortion-related services with their own funds, so long as they kept the funding and services separate.190 As more than 130 NGOs pointed out in a letter to the White House, encouraging the segregation of HIV/AIDS services from family planning clinics that provide abortion-related services would impede the efforts of already overburdened HIV/AIDS [*PG218]programs.191 Separating the resources available to people with HIV/AIDS would cause an unnecessary and inefficient duplication of services, thus limiting the total range of services accessible to this population.192

An expansion of the Mexico City Policy to HIV/AIDS funding would force the abortion debate into the HIV/AIDS context through its effects on organizations unrelated to abortion.193 For example, an extended Policy could potentially apply to the $100 million grant USAID is providing to the Elizabeth Glaser Pediatric AIDS Foundation (EGPAF) over the next five years.194 EGPAF is a U.S.-based NGO that funds and conducts pediatric research on the treatment and prevention of HIV transmission to infants and children.195 Under the Policy, EGPAF could be obligated to sign binding compliance contracts stating that the foundation will not “promote or perform abortion-related services,” and its subgrantees would have to do the same.196 Thus, this HIV/AIDS foundation, whose health-based focus is completely outside the realm of abortion politics, could be forced to base its funding allocations on the abortion-related involvement of its subgrantees.197 The Policy could force the organization either to cease its partnerships with, or separate the services provided by, some of its program sites in sub-Saharan countries, which include Cameroon, Kenya, Uganda, Rwanda, Tanzania, Malawi, Zambia, and Zimbabwe.198

[*PG219] Extending the Policy to HIV/AIDS funding would prioritize the exportation of anti-abortion political interests over the actual demand or need for field programs, which is considerable in sub-Saharan African countries.199 If preventing the spread of HIV/AIDS were truly the intention of U.S. foreign assistance, more relevant factors, such as the location, strength, potential success, and local or regional need for a program, would dominate the allocation decisions of organizations receiving HIV/AIDS funding.200

In his State of the Union address, President Bush reported that only 50 thousand of the 30 million AIDS victims in Africa were receiving the medicine they need.201 The United States’ priority should be to help people with AIDS by, for example, providing them with HIV/AIDS pharmaceuticals, antiviral therapies, and other medicines.202 Withholding funds from programs that are “already well positioned to provide women with the full range of services they need” would not only be economically inefficient, but would also victimize the very people the funding aims to help.203

IV.  Remedying the Negative Impact of the Mexico City Policy on HIV/AIDS Services and People Living with HIV/AIDS

An executive memorandum rescinding the entire Mexico City Policy would be the most effective strategy for allowing family planning clinics to serve their HIV/AIDS clients in accordance with local, regional, and national health standards.204 Yet such an order is unlikely under the current administration; each post-Reagan Republican president has implemented the Policy and the current administration has consistently advanced policies opposing abortion.205 Moreover, [*PG220]President Bush expanded the Mexico City Policy in August of 2003 by extending it to State Department grants to foreign NGOs for family planning programs.206 Thus, lawmakers have explored more probable and pragmatic remedies.207

In response to President Bush’s re-imposition of the Policy in 2001, moderate and liberal lawmakers introduced the Global Democracy Promotion Act in both the 107th Congress and the current 108th Congress.208 With the goal of respecting the sovereignty of foreign governments and their laws, the bill allows NGOs receiving U.S. assistance to use their own funds for abortion-related services, so long as their actions do not violate the laws of the country in which the services were provided.209 Although the 107th Congress did not pass this legislation, the House International Relations Committee passed an amendment that would have included the bill’s language in an authorization bill in 2001, and the subsequent 218–210 vote on the amendment in the House of Representatives was close.210

Momentum to pass the Global Democracy Promotion Act may be building again, since the Bush administration sparked a vigorous debate with its proposed extension of the Mexico City Policy to funding [*PG221]for HIV/AIDS.211 In July of 2003, the Senate approved an amendment to the State Department Authorization bill, which would overturn the Mexico City Policy.212 If the Global Democracy Promotion Act were to pass without any modifications, its language would be broad enough to overturn such a proposed extension to HIV/AIDS funding.213 In fact, the bill’s application to the proposed extension may be the key for mobilizing congressional support in favor passing the Global Democracy Promotion Act in the 108th Congress.214

Fortunately, the Bush administration and congressional leaders have thus far refrained from extending the Mexico City Policy to HIV/AIDS funding.215 Even though the new global AIDS law did not extend the Policy, there has been no indication that the Bush administration intends to scale the Policy back or rescind it altogether.216 Maintaining public pressure on President Bush, as well as on future presidents, to limit the current scope of the Mexico City Policy will be crucial for implementing Bush’s $15 billion AIDS initiative and other U.S. efforts to combat the HIV/AIDS pandemic in sub-Saharan Africa.217

Conclusion

The current Mexico City Policy presents a significant threat to the health of women and others living with HIV/AIDS in sub-Saharan Africa and elsewhere. Although the symbolic value of court challenges to this policy is powerful, any legal change will most likely be brought about through the political process rather than the court system. Consequently, policy debates between the public, Congress, and the White House must fully expose the Mexico City Policy’s damaging impact on HIV/AIDS services for women in developing countries. When con[*PG222]tributing to the international effort to combat the HIV/AIDS pandemic, the United States must not allow abortion politics to victimize people with HIV and AIDS.

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