PEPFAR Reauthorization: The Debate About Abortion

Despite a long history of broad and bipartisan support, reauthorization of the President’s Emergency Plan for AIDS Relief (PEPFAR) is currently being held up by congressional debate around abortion. PEPFAR, first created in 2003 by President George W. Bush and reauthorized three times thus far, is the U.S. government’s signature global health effort in the fight against HIV. Widely regarded as one of the most successful programs in global health history, PEPFAR reports having saved 25 million lives due to its efforts, and KFF analyses have found a significant impact of the program beyond HIV, including large reductions in both maternal and child mortality and significant increases in some childhood immunization rates. Still, its fourth reauthorization has been drawn into broader U.S. political debate about abortion, in the wake of the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision (which overturned the nationwide right to obtain an abortion), even though U.S. law prohibits the use of U.S. foreign assistance, including PEPFAR funding, for abortion. This policy watch provides an overview of the current debate and issues.

What concerns about abortion have been raised?

Abortion was publicly raised as one of the discussion points in PEPFAR reauthorization in early May after a coalition of organizations opposed to abortion rights, a conservative think tank’s report, and a member of Congress raised their concerns that PEPFAR may be supporting abortion. Among the criticisms leveled were that the Biden administration had restored funding to the United Nations Population Fund (UNFPA), signaled its support for sexual and reproductive health and rights globally in the September 2022 Reimagining PEPFAR’s Strategic Direction strategy document and February 2023 PEPFAR operational guidance, and funded various recipients who expressed support for abortion generally. There was also a call for Congress to reinstate and apply the “Mexico City policy” to PEPFAR. The Mexico City policy – first instituted in 1984 but not currently in effect – is a policy that required foreign non-governmental organizations (NGOs) to certify that they would not perform or promote abortion as a method of family planning using funds from any source as a condition for receiving certain U.S. funding. Typically put in place through executive order, it first applied to PEPFAR in 2017 under an expanded version of the policy instituted by President Trump, which was rescinded by President Biden in 2021 (prior to that time, when it was in place, PEPFAR was not subject to this policy).

What has been the response by PEPFAR and the U.S. government?

There has been no evidence produced that PEPFAR has supported any prohibited abortion activities. In June, Ambassador John Nkengasong, the head of PEPFAR, publicly stated that PEPFAR does not provide a platform for abortion in Africa and that it is “implemented strictly within the context of the laws it was created [by].” PEPFAR also sent official communication to all its implementers regarding current law and policy in this area. Additionally, the PEPFAR program revised its earlier September 2022 document, Reimagining PEPFAR’s Strategic Direction, to clarify that “sexual and reproductive health services” has a specific meaning in the PEPFAR context and reiterated that “PEPFAR does not fund abortions, consistent with longstanding legal restrictions on the use of foreign assistance funding related to abortion.” The U.S. government also has training and compliance processes in place to monitor the adherence of funding recipients and sub-recipients with U.S. requirements.

What U.S. government laws and policies regarding abortion apply to PEPFAR?

PEPFAR is governed by several legal, policy, and programmatic requirements related to abortion (see the KFF fact sheet on these and other requirements), including:

• the Helms Amendment (in place since 1973) – a legal ban on the direct use of U.S. funding overseas for the performance of abortion as a method of family planning or to motivate or coerce any person to practice abortion;
• the Leahy Amendment (in place since 1994) – a legal requirement that clarifies the Helms Amendment 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; and
• the Siljander Amendment (in place since 1981) – a legal ban on the direct use of U.S. funding overseas to lobby for or against abortion.

In addition, while not currently in effect, the Mexico City policy was applied to PEPFAR for the first time during the Trump administration.

what are the implications if PEPFAR is not reauthorized?

If PEPFAR is not reauthorized this year, or in the near future, the program won’t end, but there are several practical and symbolic implications for the program and the people it serves.

PEPFAR is a permanent part of U.S. law and will continue, provided funds are appropriated. PEPFAR operates largely under permanent authorities of U.S. law that allow for ongoing funding and the continuation of the major structures of the program, such as the Office of the Global AIDS Coordinator at the Department of State as well as the position of Global AIDS Coordinator, U.S. participation in the Global Fund to Fight AIDS, Tuberculosis and Malaria (Global Fund), and annual reporting on PEPFAR efforts.

Some requirements, however, are time-bound and would “sunset.” There are eight requirements that will end (seven after FY 2023 and one after FY 2024) if not addressed through PEPFAR reauthorization or another legislative vehicle. These include requirements related to Global Fund support, a funding directive for orphans and vulnerable children (OVC), and others.

The lack of reauthorization would mark a significant departure from PEPFAR’s long-time bipartisan support. PEPFAR has enjoyed strong bipartisan support across multiple Congresses and administrations. This has enabled the program to operate outside some of the policy debates that have stalled agreement on other issues related to both health care and foreign assistance in Congress. Despite the fact that funding for PEPFAR could continue absent reauthorization, the program may be more vulnerable in future funding debates.

Failure to reauthorize the program could send a message to partner countries and the people served by PEPFAR. Despite vocal administration support for the program as well as former President Bush and others calling on Congress to reauthorize PEPFAR, the lack of a congressional reaffirmation of the program may undermine efforts to demonstrate the depth of the U.S. government’s commitment to the global fight to end AIDS and broader leadership role in global health. It could also weaken PEPFAR’s partnering and diplomatic efforts, particularly conversations with partners about longer-term planning, financial sustainability, and country leadership of efforts.