[POLITICS] The U.S. Supreme Court and the Global Gag Rule: Policy Likely to Stay in Place Throughout Trump Presidency

This article originally appeared at Vita di Donna on 15 February 2017 and can be read here (in Italian). Associazione Vita di Donna Onlus is a non-profit organization based out of Rome, Italy, that aims to protect women’s health and reproductive rights, headed up by Dr. Elisabetta Canitano.

image courtesy Planned Parenthood Action Fund

The Global Gag Rule, also known as the Mexico City policy, is an executive order enacted in 1984 by Republican President Ronald Reagan, since rescinded and reinstated by subsequent U.S. presidents and most recently reinstated by Donald Trump. Trump has also expanded the policy to cover all global health organizations – not just family planning organizations – receiving funds through USAID (United States Agency for International Development) or the U.S. State Department.

However, a significant portion of the current policy is unconstitutional per a 2013 U.S. Supreme Court decision, which states in part that “the government may not use funding and the threat of the loss of funding as a method for the regulation of speech and policies of non-governmental organizations [NGOs].” (quoted from “Agency for International Development v. Alliance for Open Society International.” Oyez, https://www.oyez.org/cases/2012/12-10) The U.S. government MAY prohibit the use of federal funds for abortion-related medical treatment and/or counseling; however, it cannot prevent those receiving these funds from using non-federal money to provide referrals and information related to abortion.

The current global gag rule under Trump prevents doctors in NGOs from mentioning abortion when using money that has absolutely no connection to the United States, which is the unconstitutional part of the policy. It censors doctors from discussing or referring patients to abortion-related services merely because their NGO receives U.S. funds, which is an infringement of the First Amendment. An executive order however, such as the global gag rule, cannot be fully overturned by the Supreme Court unless it completely violates the U.S. Constitution. Up until the 2013 ruling, the Supreme Court has not found the policy in full or in part to be in violation. NGOs should and will likely challenge Trump’s gag rule by way of the Supreme Court; unfortunately, this may not be successful for them since, as of this writing, the Supreme Court is currently at eight members and awaiting appointment of a ninth justice.

Trump’s nominee for the Supreme Court is Neil Gorsuch, a judge on the U.S. Court of Appeals for the Tenth Circuit. Gorsuch is known in the states for his involvement in the “Hobby Lobby case” (Hobby Lobby Stores v. Sebelius) from 2003, which ruled that the Affordable Care Act’s contraceptive mandate on private businesses violated the Religious Freedom Restoration Act. Gorsuch, if approved, would fill Antonin Scalia’s seat in the Supreme Court and will most likely follow in a similar, highly-conservative path as his predecessor. This does not bode well for the future of the gag rule in terms of it being overturned, as the Supreme Court bench would be filled with four justices appointed by Democratic presidents (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan) and five appointed by Republican presidents (John Roberts, Anthony Kennedy, Clarence Thomas, Samuel Alito, Neil Gorsuch).

The policy has been challenged twice by U.S. Appeals court rulings, in 1987 and 1988, but these rulings only contributed to the policy being used against foreign NGOs, not U.S. NGOs. The legality of the policy was in fact supported by a 1991 Supreme Court case, Rust v. Sullivan; this ruling was subsequently challenged and overturned in part by the aforementioned 2013 decision. Since the global gag rule has not been in place since this time, there has not been any need to challenge it until now. With the current policy in place, until the changes made by Trump are deemed unconstitutional by the Supreme Court, women across the world will be forced to seek assistance outside of these NGOs at risk of their own health.

Additional note on the US branches of government and the separation of powers:

Here in the United States, our government system has three branches: Legislative (Congress), Judicial (Supreme Court), and Executive (President). To prevent one branch from having too much power over the others and to encourage cooperation between the branches, a method of “checks and balances” is used. This method allows one branch to limit the power of another, to keep each other in equal balance, as set forth within the first three Articles of the United States Constitution.

For example, the President has veto power over Congressional laws and can make appointments to the judicial branch, Congress can remove executive and judicial officers for high crimes and misdemeanors, and the Supreme Court exercises judicial review (a power not from the Constitution but enacted in the 1803 case Marbury v Madison) over laws introduced by Congress and executive orders introduced by the President, as we have seen in the past with the Global Gag Rule.

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