HomeArticlesLoophole could protect South African organisations from US gag rule on abortions

Loophole could protect South African organisations from US gag rule on abortions

Experts say confusion over the rights of local healthcare workers to provide the service while receiving US funds only benefits Trump administration.

controversial United States policy that prohibits foreign organisations it funds from offering or promoting abortions has sparked fear among South African healthcare workers. 

But activists say there is a loophole in the policy that may offer a lifeline of sorts to local organisations that provide family planning advice.

US President Donald Trump has reintroduced the Mexico City Policy, popularly known as the “gag rule”. The law allows the US government to cut its funding to foreign organisations if they perform or even advocate for abortions — including referring women to other service providers or financially supporting organisations that conduct such activities.

These restrictions apply regardless of whether the abortion services use US funded directly or not.

“The [global gag rule] is about what foreign nonprofit organisations that receive US funding can do with the money they receive from other donors,” explains Beirne Roose-Snyder, the director of public policy for the Center for Health and Gender Equity (Change), a US-based women’s rights organisation.

In the event that US-funded NGOs violate the gag rule — or use other donors’ money to fund abortion services — they risk losing their US funding. These NGOs could also be forced to pay the US government what they had spent on services related to the termination of pregnancy.

“Even if the money that an organisation spent on that portion of [its] activities is not US money, it would owe the US [that] money for the promoting or providing [of] abortion services with other donor money,” says Brian Honermann, deputy director of public policy for the Foundation for Aids Research (Amfar).

However, Roose-Snyder emphasises that the gag rule does not apply to funding that was granted before it was reinstated.

In 2017, South Africa is due to receive R10.7-billion in US funding from the President’s Emergency Plan For Aids Relief (Pepfar) alone. About 64% of this money is slated for NGOs, according to an Amfar analysis.

In South Africa, nonprofits have been reluctant to speak publicly about the ban’s effects. But Bhekisisa understands that the rule has already stopped some NGOs from providing abortion information and has created divisions in civil society.

Some healthcare workers, who wished to remain anonymous, say the policy has prompted fear and anxiety not only for the survival of organisations, but also about the implications for their patients.

But international activists say a clause in the policy allows South African organisations some respite — although it still does not allow them to provide abortions.

The document outlining the new US funding guidelines states that when local laws require health workers to provide counselling and referrals for abortions, they may continue to do so without violating the policy.

“This means that the gag rule falls away, as healthcare workers in South Africa are obligated to counsel and refer women under domestic laws, ethics guidelines and the Constitution,” says Honermann.

“[The gag rule] cannot contravene the law of a sovereign state,” he argues.

But Honermann warns that this still leaves local organisations in a difficult position.

South Africa is one of only five African countries with liberal abortion laws, according to the Guttmacher Institute, a nonprofit public health research organisation.

Honermann fears that, if South African organisations and government exercise their rights under the gag rule, they may lose US funding in the future.

Meanwhile, Roose-Snyder says confusion over the exemptions possible under the gag rule work to the advantage of US conservative politicians who back the policy.

“They want organisations to be confused and completely stop their abortion advocacy in every way,” she says.

“Organisations can still perform, counsel or refer abortions in cases of incest, rape and life endangerment, or if the pregnant person states they want a legal abortion and asks where to go. US-funded NGOs can still collaborate with organisations working on abortion, as long as the collaborative activities are not related to abortion.”

The gag rule was announced by US Republican president Ronald Reagan in 1984. Every subsequent president from the opposition Democrats has repealed the policy, only to have it reinstated by each Republican successor. 

“[The reintroduction of the Act] does not reduce the amount of global health assistance the US government makes available. The United States remains deeply committed to supporting health programmes around the world,” explains Caroline Schneider, assistant spokesperson at the US embassy.

According to Schneider, the US government has trained its officials based around the world on the policy and is encouraging NGOs with questions to contact these officials with their queries.

The US government is also conducting a six-month review of the local effects of the gag rule, including what challenges NGOs have faced in implementing the policy. The analysis is expected to pay special attention to US global health programmes, including those targeting HIV and malaria.

In the seven years after former president George W Bush’s 2001 reintroduction of the law, the abortion rate in 20 African countries increased by 40%, a 2011 study published in the Bulletin of the World Health Organisation found.

Researchers argued that the dramatic increase in abortions was probably fuelled by a reduction in funding for groups providing contraception under the policy, although they admitted the study did not find definitive proof of this. As contraception became scarcer in countries affected by the gag rule, women turned to abortions to deal with an increased number of unwanted pregnancies, the authors posited.

Trump’s order may result in similar or worse outcomes in the years ahead, cautions Amfar policy associate Jennifer Sherwood.

She warns that the gag rule will restrict US funding from key reproductive health organisations, forcing clinic closures and cutbacks — which, in turn, limits family planning services, increases unintended pregnancies and may lead to more unsafe abortions.

Pontsho Pilane is the communications manager at Soul City Institute for Social Justice. Pilane was a health journalist at Bhekisisa from 2017 until 2019.