Not Business As Usual: President Trump reinstates Mexico City Policy with a substantive addition
Editor

On January 23, 2017, U.S. President Donald Trump reinstated Reagan’s so-called Mexico City Policy, also known as the “global gag rule.”  In the process, he also added text that makes a substantive change going farther than any U.S. national-level anti-abortion policy has ever gone before. This Editor wishes to point out that this is not simply business as usual.

Here is the full text  of Trump’s Presidential Memorandum, in case it disappears from the White House website or later archives, in both text and a screenshot taken January 26, 2017, with a short analysis afterwards:

MEMORANDUM FOR THE SECRETARY OF STATE
                                    THE SECRETARY OF HEALTH AND HUMAN SERVICES
                                    THE ADMINISTRATOR OF THE UNITED STATES AGENCY
                                    FOR INTERNATIONAL DEVELOPMENT

SUBJECT:                    The Mexico City Policy

I hereby revoke the Presidential Memorandum of January 23, 2009, for the Secretary of State and the Administrator of the United States Agency for International Development (Mexico City Policy and Assistance for Voluntary Population Planning), and reinstate the Presidential Memorandum of January 22, 2001, for the Administrator of the United States Agency for International Development (Restoration of the Mexico City Policy).

I direct the Secretary of State, in coordination with the Secretary of Health and Human Services, to the extent allowable by law, to implement a plan to extend the requirements of the reinstated Memorandum to global health assistance furnished by all departments or agencies.

I further direct the Secretary of State to take all necessary actions, to the extent permitted by law, to ensure that U.S. taxpayer dollars do not fund organizations or programs that support or participate in the management of a program of coercive abortion or involuntary sterilization.

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

The Secretary of State is authorized and directed to publish this memorandum in the Federal Register.

DONALD J. TRUMP

President Reagan first instituted the Mexico City Rule.  President Bill Clinton removed it.  President George W. Bush reinstated it. President Obama removed it.  And President Trump resinstated Bush’s version of it.  That version, as many people know, prohibits the use of U.S. funding for any family planning program that discusses abortion (the Kaiser Family Foundation has quite a nice Explainer on this).  Medical ethicists have long noted  that this ties the hands of health care providers seeking to provide full informed consent and refusal, which requires disclosure of risks, benefits, and alternatives which may be of interest to the patient.  Under the rule, providers are prevented from discussing abortion as an option. Much ink and many pixels have been spilled in the three days since Trump restored the Mexico City Rule, noting rightly that when the rule is in place, it is not only the provision of abortion that is affected but also the provision of contraception. This then results in unwanted pregnancies in some of the places on the planet where it is most dangerous to be pregnant.  Nicholas Kristof, who co-authored the moderate global feminist book Half the Sky with Sheryl Wu Dunn, has written powerfully of these effects in a piece he unflinchingly titled “President Trump’s War on Women Begins.” Kristof provides links to supporting evidence as well as compelling examples, and I won’t replicate them here.

However, note the addition of this language that WAS NOT in the original Mexico City Policy and is the doing of the Trump-Pence administration:

I direct the Secretary of State, in coordination with the Secretary of Health and Human Services, to the extent allowable by law, to implement a plan to extend the requirements of the reinstated Memorandum to global health assistance furnished by all departments or agencies.

No longer does the global gag rule apply to family planning programs. It now applies to all global health assistance furnished by all departments or agencies. This means that Zika prevention programs cannot discuss abortion.  This also means that programs responding to human trafficking, sexual assault, and rape cannot discuss abortion. It also means that maternal health programs that might be counseling women with life-threatening pregnancies cannot discuss abortion. If this Editor is interpreting this correctly, no program receiving U.S. foreign health aid can discuss abortion in any substantive way, for any reason. 

Even within the United States where a substantial portion of the population wants abortion to not be available on demand (though a majority do, during the first trimester at least), these anti-abortion activists often want to make exceptions for women who have been raped, are pregnant due to incest, or have life-threatening pregnancies.  Even before Roe vs. Wade (1973), there were many states in the union that allowed abortion under these circumstances, few that did not, and no federal-level policy that approached this level of restriction. Even today, when federal funds are rarely allowed to fund abortion due to the Hyde amendment (which the House, one branch of the U.S. Legislature, seeks to affirm as permanent law in H.R.7), that very policy nonetheless allows federal funding to be used to provide abortions where the life of the pregnant woman is at risk from the pregnancy, or where the pregnancy is a result of rape or incest. These are the three most commonly accepted exceptions for anti-abortion activists. Without further guidance from the Trump administration on exactly how to implement these plausible exceptions without losing their funding, women’s health programs abroad that the U.S. government funds cannot discuss abortion now even under these circumstances.  Nor can they refer women to abortion providers if it requires raising the subject; they can only refer if a woman requests a referral, herself (this has always been the case with the Mexico City Policy, but it now applies to a much wider range of groups).

 This is a degree of absolutism we have never seen before.  It is not business as usual. 

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