Human Rights Dialogue (1994–2005): Series 2 No. 9 (Spring 2003): Making Human Rights Work in a Globalizing World: Articles: Gagging Democracy

The United Nations Human Rights Committee has declared Peru’s restrictive abortion laws a violation of the right to life and freedom from torture. While the Peruvian government must be held accountable for this oppressive practice, the United States has also contributed substantially to the situation through its reimposition of the so-called Global Gag Rule (officially known as the Mexico City Policy). As the world has become increasingly globalized, it is often difficult to determine who should be held responsible for human rights violations. As a result, impunity continues in cases like this where abuses are perpetrated indirectly through aid and trade conditionalities imposed by foreign states or organizations.

The Global Gag Rule restricts U.S. aid by terminating U.S. Agency for International Development (USAID) funds for any non-U.S.-based NGOs involved in voluntary abortion activities, even if these activities were undertaken with non-U.S. funds. While the Helms Amendment has restricted U.S. funds from being used for abortion or voluntary sterilization activities overseas since 1973, the Global Gag Rule goes further, restricting foreign-based NGOs from using their own funds to provide legal abortion services, lobby their own governments for abortion law reform, or provide accurate medical counseling or referrals regarding abortion, even when these activities are in accordance with the laws of their own countries.

Under the Global Gag Rule, it is illegal for an organization that receives donations from USAID to lobby its own government for decriminalization of abortion, though it would be able to lobby for stricter punishment for women who have undergone voluntary abortions. The intention of the policy is to limit the speech and action of foreign-based NGO recipients by depriving them of all U.S. government funds if they carry out certain acts deemed undesirable by the U.S. administration. In essence, if an organization is dependent on U.S. aid, or if it is concerned about potential funding, it is prevented from participating in the democratic process of its own country unless it agrees with the current U.S. government on abortion issues. This has obvious consequences for the exercise of two central human rights: freedom of expression and participation in a democratic society.

In the case of Peru, this dialogue regarding abortion and reproductive rights is not just important as an expression of democracy, but also as a means of finding a solution to the quite serious human rights violations that result from the restrictive law. Abortion is currently illegal in Peru by legislation and the law provides for few exceptions. As a consequence, few legal abortions are carried out, whereas 350,000 Peruvian women annually submit to illegal and often unsafe abortions. Complications as a result of unsafe abortions and hemorrhaging are among the top reasons for the exceptionally high maternal mortality rate in Peru. The law also requires doctors attending to women they suspect of having gone through an illegal abortion to turn these women over to the authorities.

Blanket prohibitions of abortion and violations of doctor-patient confidentiality have been deemed inconsistent with internationally recognized human rights norms by the UN’s Human Rights Committee and Committee for the Elimination of All Forms of Discrimination Against Women (CEDAW Committee). Specifically, the Human Rights Committee has declared the restrictive abortion laws in Peru a violation of the right to life and freedom from torture, and the CEDAW Committee has noted that a breach of patient confidentiality negatively affects women’s health—particularly in the context of illegal abortions. A mandated breach such as the one required by Peruvian law is therefore inconsistent with women’s right to health. The UN bodies recommend dialogue and open debate on the topic so as to solve abortion-related conflicts in a democratic manner and avoid the human suffering undisputedly caused by illegal and hence unsafe abortions.

In Peru, there should therefore be plenty of room for NGOs concerned with the health of women, and their reproductive rights in particular, to work for decriminalized—and thus safer—abortions. However, this is precisely the work that has been constrained by the Global Gag Rule. Over the years, Peru has been one of the main recipients of USAID funding for reproductive health work and, though most organizations do not depend on USAID for their survival, most do not wish to upset a potential substantial funder.

The Global Gag Rule also imposes rules and restrictions on foreign NGOs that would not be accepted as legal in the United States. The U.S. Supreme Court has insisted on the right to abortion as an integral part of a woman’s right to physical self-determination. Moreover, it is highly unlikely that the same court would find constitutional the kind of limitations on the right to freedom of expression contained in the Global Gag Rule. This situation, in which the U.S. government can impose on others what it cannot impose on its own citizens, borders on neo-imperialism, a notion not lost on NGO representatives and health professionals in Peru. It is, indeed, hard to see how the stifling of free debate in Peru in order to maintain laws that have been deemed contrary to human rights is helpful for the ideals of democracy and freedom that the U.S. government purports to support through its development work.

Some argue that trade and aid conditionalities such as the Global Gag Rule fall under the discretionary powers of any government; that if a state wishes to donate resources to another state, it is free to set any conditions it chooses. I disagree. As global citizens in the international community, states have an obligation to act responsibly by showing due diligence and assessing and foreseeing any adverse consequences their actions might have on others. We would, for example, expect a state to refrain from selling instruments that might be used for torture to another state that is known to participate in such practices. Moreover, it seems counterintuitive that the United States should not be held responsible for the restrictions on freedom of speech resulting from its actions in Peru, when identical restrictions would not be tolerated at home. While it may be counterintuitive, unfortunately it is not yet counter to international human rights law.

The Global Gag Rule makes it painfully clear that human rights violations that are the consequences of cross-border policies fall through the rather sizeable loopholes in traditional human rights law. There is little doubt that the consequences of the Global Gag Rule have the potential to cause or to maintain a situation of great suffering and violations of human rights norms. If the Peruvian state were the main actor, the women subjected to the restrictive abortion laws in Peru would have access to at least one international remedy—the UN Human Rights Committee. However, as the main actor is a foreign government, neither domestic nor international remedies are available and the violations continue unpunished. Clearly, international human rights law needs a serious overhaul in order to catch up with the globalized world.