The U.S. Government and International Family Planning & Reproductive Health: Statutory Requirements and Policies
|TABLE 1: STATUTORY REQUIREMENTS AND POLICIES FOR U.S. GLOBAL FP/RH EFFORTS (as of FY 2016)1|
|Provision (Year First Instituted)||Issue(s)||Applies to||Status|
|Helms Amendment (1973) Prohibits the use of foreign assistance to pay for the performance of abortion as a method of family planning or to motivate or coerce any person to practice abortion. Note: meaning of “motivate” clarified by Leahy Amendment (1994); see below.||Abortion||All foreign assistance authorized under the Foreign Assistance Act of 1961(FAA); all funds under State-Foreign Operations Appropriations (State-Foreign Ops.)||Yes, in effect. Permanent law, amendment to the FAA. Also included in annual State-Foreign Ops.|
|Involuntary Sterilization Amendment (1978) Prohibits the use of funds to pay for involuntary sterilizations as a method of family planning or to coerce or provide a financial incentive to anyone to undergo sterilization.||Voluntarism/ Informed Choice & Consent; Incentives; Invol. Sterilization||All foreign assistance authorized by the FAA of 1961; all foreign assistance funds under State-Foreign Ops.||Yes, in effect. Permanent law, amendment to the FAA. Also included in annual State-Foreign Ops.|
|Peace Corps Provision (1978) Prohibits Peace Corps funding from paying for an abortion for a Peace Corps volunteer or trainee; beginning in FY 2015, allows for payment in cases where the life of the woman is endangered by pregnancy or in cases of rape or incest.2||Abortion||All Peace Corps funding||Yes, in effect. Included under the “Peace Corps” heading of the State-Foreign Ops.|
|Biden Amendment (1981) States that funds may not be used for biomedical research related to methods of or the performance of abortion or involuntary sterilization as a means of family planning.||Abortion; Invol. Sterilization||All foreign assistance authorized by the FAA of 1961; all foreign assistance funds under State-Foreign Ops.||Yes, in effect. Permanent law, amendment to the FAA. Also included in annual State-Foreign Ops.|
|Siljander Amendment (1981) Prohibits the use of funds to lobby for or against abortion. When initially introduced, the amendment prohibited only lobbying for abortion, but in subsequent years Congress modified the language to include lobbying against abortion as well.||Abortion||All funds under State-Foreign Ops.||Yes, in effect. Included in annual State-Foreign Ops.|
|DeConcini Amendment (1985) Requires that U.S. funds be provided to organizations that offer, either directly or through referral to, information about access to a broad range of family planning methods and services. See Livingston-Obey Amendment (1986) below.||Voluntarism/ Informed Choice||All FP funds under State-Foreign Ops.||Yes, in effect. Included in annual State-Foreign Ops.|
|Kemp-Kasten Amendment (1985) Prohibits funding any organization or program, as determined by the President, that supports or participates in the management of a program of coercive abortion or involuntary sterilization.||UNFPA Funding; Abortion; Voluntarism/ Informed Choice & Consent; Invol. Sterilization||All funds under State-Foreign Ops. as well as unobligated balances from prior appropriations acts||
Yes, in effect.
(Since 2009, the President has determined that UNFPA is not subject to Kemp-Kasten.) Included in annual State-Foreign Ops.3
|Involuntary Sterilization and Abortion Provision (1985) Specifies that U.S. foreign assistance funding could be withheld from a country or organization if the president certifies that the use of such funds would violate key provisions of the FAA of 1961 related to abortion or involuntary sterilization (namely the Helms, Biden, and Involuntary Sterilization Amendments).||Voluntarism/ Informed Choice & Consent; Incentives; Abortion; Invol. Sterilization||All foreign assistance funds under State-Foreign Ops.||Yes, in effect. Included in annual State-Foreign Ops.|
|Livingston-Obey Amendment (1986) Prohibits discrimination by the U.S. government against organizations that offer only “natural family planning” for religious or conscientious reasons when the U.S. government is awarding related grants. All such applicants must comply with the requirements of the DeConcini Amendment (1985).||Voluntarism/ Informed Choice||All FP funds under State-Foreign Ops.||Yes, in effect. Included in annual State-Foreign Ops.|
|Leahy Amendment (1994) Clarifies Helms Amendment (1973) language that uses the term “motivate” by stating that “motivate” shall not be construed to prohibit, where legal, the provision of information or counseling about all pregnancy options.||Abortion; Voluntarism/ Informed Choice||All authorizing and appropriating legislation related to the State Dept., foreign operations, and related programs||Yes, in effect. Included in annual State-Foreign Ops.|
|Timing of Release of UNFPA Contribution Funds (1994) Not more than half of funding designated for the U.S. contribution to UNFPA is to be released before a particular date (varies by fiscal year).||UNFPA Funding||Funds made available to UNFPA||No, not in effect. Sometimes included in annual State-Foreign Ops.|
|Conditions on Availability of UNFPA Funds (UNFPA Segregated U.S. Contribution Account; UNFPA Does Not Fund Abortions; Prohibition on the Use of U.S. Funds in China by UNFPA) (1994) States that funds may not be made available to UNFPA unless:
It also prohibits UNFPA from using any funds from the U.S. contribution in their programming in China.
|UNFPA Funding; Abortion||Funds made available to UNFPA||Yes, in effect. Included in annual State-Foreign Ops.|
|UNFPA Dollar-for-Dollar Withholding of Amount UNFPA Plans to Spend in China During Fiscal Year (1994) Reduces the U.S. contribution to UNFPA by one dollar for every dollar that UNFPA spends on its programming in China.||UNFPA Funding||Funds made available to UNFPA||Yes, in effect. Typically included in annual State-Foreign Ops.|
|Tiahrt Amendment (1998) Prohibits the use of targets/quotas and financial incentives4 in family planning projects and requires projects to provide comprehensible information on family planning methods. Protects people who choose not to use family planning from being denied rights or benefits and requires experimental family planning methods be provided only in the context of a scientific study. Intended to “promote voluntarism and prevent coercion in family planning programs,” it specifically prohibits three types of targets: total number of births, number of family planning acceptors, and acceptors of a particular method of family planning.5||Voluntarism/ Informed Choice & Consent; Incentives and Disincentives||All FP funds under State-Foreign Ops.||Yes, in effect. Included in annual State-Foreign Ops.|
|Reallocation of Funds Not Made Available to UNFPA (2004) Provides for funds not made available to UNFPA to be reallocated to USAID’s family planning, reproductive health, and maternal health activities/services (and, in some years, assistance to vulnerable children and victims of trafficking in persons).6||UNFPA Funding||Funds appropriated for UNFPA||Yes, in effect. Typically included in annual State-Foreign Ops.|
|Medically Accurate Information on Condoms (2005) Ensures that information provided by U.S.-supported programs about the use of condoms is medically accurate information and includes the public health benefits and failure rates of such use.||Condoms||All funds under State-Foreign Ops.||Yes, in effect. Typically included in annual State-Foreign Ops.|
|USAID Policy Paper on Population Assistance (1982) Outlines the longstanding USAID guidelines surrounding its fundamental programmatic principles of voluntarism and informed choice and consent.7||Voluntarism/ Informed Choice & Consent||All FP/RH assistance provided by USAID||Yes, in effect.|
|Policy Determination 3 (PD-3) and Addendum: USAID Policy Guidelines on Voluntary Sterilization (1982) Describes guidelines for informed consent and voluntarism specifically for voluntary sterilization services, including provisions to ensure ready access to other contraceptive methods and prohibiting incentive payments that might induce a person to select voluntary sterilization over another method.||Voluntarism/ Informed Choice & Consent; Voluntary Sterilization||All FP/RH assistance provided by USAID||Yes, in effect.|
|Mexico City Policy (“Global Gag Rule”, 1984)8 As a condition for receiving U.S. family planning assistance (though once extended more broadly—see “Applies to”), requires foreign NGOs to certify that they would not perform or promote abortion as a method of family planning using funds from any source.||Abortion||1984- 2003: when in effect, was applied to FP assistance at USAID only. In 2003, expanded to include all FP assistance at USAID and the State Dept., exempting multilateral organizations and HIV/AIDS funding under PEPFAR.9 In 2009, rescinded again.||No, not in effect. Not currently in force through Executive action or legislation.10|
|USAID Post-Abortion Care Policy (2001) Clarifies that post-abortion care – the treatment of injuries or illnesses caused by legal or illegal abortion – is permitted under the Helms Amendment and that any restrictions under the Mexico City Policy, when in force, do not limit organizations from treating injuries or illnesses caused by legal or illegal abortions (i.e., providing post-abortion care). Notes USAID does not finance manual vacuum aspiration equipment purchase/distribution for any purpose.||Post-Abortion Care||All FP/RH assistance provided by USAID||Yes, in effect.|
|Guidance on the Definition and Use of the Global Health Programs Account: Section on Allowable Uses of Funds for Family Planning/Reproductive Health (2014) Outlines allowable uses of funds for FP/RH by providing a description of activities allowed and examples of activities not allowed, addressing not only FP/RH activities but also family planning activities’ integration with other global health and multisectoral activities.||FP/RH Activities; FP/RH System Strengthening Activities; Integrated FP Activities||All FP/RH assistance provided by USAID||Yes, in effect. Updated periodically.|
|PEPFAR FY 2015 Country Operational Plan Guidance11 Outlines certain FP/RH activities that may be reported under specific PEPFAR budget categories, including: adolescent-friendly sexual and RH services that are part of prevention targeting priority populations; assessment of FP needs and, if indicated, provision of contraception or safer pregnancy counseling or referral for FP services for HIV-positive individuals; access to adolescent-friendly RH services in support of vulnerable children and their households; and RH services that support the needs of adolescents with HIV.||HIV/AIDS Program Linkages with FP/RH Activities||“Wraparound” PEPFAR activities related to FP/RH||Yes, in effect. Updated annually.|
|NOTES: PEPFAR= U.S. President’s Emergency Plan for AIDS Relief; UNFPA= United Nations Population Fund; USAID= U.S. Agency for International Development.|
Congressional Research Service (CRS), International Population Assistance and Family Planning Programs: Issues for Congress, January 2010; CRS, Abortion and Family Planning-Related Provisions in U.S. Foreign Assistance Legislation and Policy, January 2014; USAID Global Health eLearning Center, “FP Legislative & Policy Requirements (Updated),” online course, February 2009, authored by Debbie Gueye, Management Systems International (MSI); CRS, The U.N. Population Fund: Background and the U.S. Funding Debate, February 1, 2010; congressional appropriations acts; USAID, USAID Policy Guidelines on Voluntary Sterilization, PD-3, September 1982;USAID, USAID Policy Paper Population Assistance, September 1982; USAID, “Memo from Duff Gillespie on Post-Abortion Care,” September 10, 2001; USAID, Guidance on the Definition and Use of the Global Health Programs Account: A Mandatory Reference for ADS Chapter 200, December 2014; OGAC, PEPFAR Country/Regional Operational Plan Guidance (COP/ROP) 2016 Guidance, Dec. 2015.
As noted in CRS, Abortion and Family Planning-Related Provisions in U.S. Foreign Assistance Legislation and Policy, January 2014: “ No restrictions exist on funding for the medical evacuation of Peace Corps volunteers who decide to have an abortion. Under existing policy, the Peace Corps covers the cost of evacuation to a location where ‘medically adequate facilities’ for obtaining an abortion are available and where abortions are legally permissible.”
In most recent years, a provision is included requiring that any Kemp-Kasten determination that is made must be accompanied by the evidence and criteria used to make the determination.
USAID defines a target/quota as “a predetermined figure that a service provider or referral agent is assigned or required to affect or achieve” for the purposes of the Tiahrt Amendment. It states that “the key to interpreting ‘incentives’ is to see whether they are provided in exchange for accepting a method (in the case of a client) or linked to achievement of a predetermined target or quota (in the case of program personnel).” USAID Global Health eLearning Center, “FP Legislative & Policy Requirements (Updated),” online course, February 2009, authored by Debbie Gueye, MSI.
USAID Global Health eLearning Center, “FP Legislative & Policy Requirements (Updated),” online course, February 2009, authored by Debbie Gueye, MSI.
Although such reallocation began in practice in FY 2002, it was first authorized by Congress in legislation beginning in FY 2004 with reference to FY 2002 and FY 2003 funds.
Informed Choice: Effective access to information on family planning choices and to the counseling, services, and supplies needed to help individuals choose to obtain or decline services; to seek, obtain, and follow up on a referral; or simply to consider the matter further. Voluntarism: Decision to use a specific method of family planning or to use any method of family planning is based upon the exercise of free choice and is not obtained by any special inducements or any element of force, fraud, deceit, duress or other forms of coercion or misrepresentation. USAID Global Health eLearning Center, “FP Legislative & Policy Requirements (Updated),” online course, February 2009, authored by Debbie Gueye, MSI.
This policy was first instituted via presidential memorandum in 1984 by President Reagan. In 1993, it was rescinded by President Clinton, although it was briefly applied legislatively in 1999 (see “Status” column). In 2001, it was reinstated by President Bush, who expanded its applicability in 2003 to include family planning funds at the State Department (see “Applies to” column) with some exemptions. In 2009, it was rescinded by President Obama.
George W. Bush Administration, “Subject: Assistance for Voluntary Population Planning,” Memorandum for the Secretary of State, August 29, 2003, Bush Administration White House Archives, accessed at
http://georgewbush-whitehouse.archives.gov/news/releases/2003/08/20030829-3.html, and PAI, Global Gag Rule Timeline, July 12, 2011.
Note that, with one exception, has been applied via Executive action. The exception was in FY 2000, when President Clinton agreed to a one-year legislative codification with a partial waiver of restrictions as part of a broader arrangement to pay the U.S. debt to the United Nations. See P.L. 106-113, Sec. 599D, and PAI, Global Gag Rule Timeline, July 12, 2011.
Specifically, sections 7.2.3, 7.2.9, 7.2.10, 7.2.12.