April 23, 2009
Brought to you by the Religious Liberties Practice Group
On his third day in office, President Obama issued an Executive Memorandum revoking the “Mexico City Policy,” which had previously
required nongovernmental organizations to agree as a condition of their receipt of Federal funds that such organizations would neither perform nor actively promote abortion as a method of family planning in other nations.i
The policy was originally established in 1984 by President Ronald Reagan to fill what he regarded to be a loophole in the Foreign Assistance Act of 1961, which prohibits federally funded nongovernmental organizations (NGOs) from using such funds "to pay for the performance of abortions as a method of family planning or to motivate or coerce any person to practice abortions."ii President Reagan took this action out of concern that any federal support for such organizations would indirectly promote abortion, given the fungibility of such funding. The Mexico City Policy remained the law of the land until the week of the inauguration of President Clinton (January 22, 1993), when he rescinded it.iii President Bush re-instituted the Mexico City Policy by executive order shortly after his inauguration in 2001.iv
Separately, President Obama recently restored funding to the United Nations Population Fund (UNPFA). Funding for UNFPA had originally been restricted by President Reagan upon his finding that the organization had violated the requirements imposed by the Kemp-Kasten law, which prohibited the provision of “population assistance” funds to “any organization or program which, as determined by the President of the United States, supports or participates in the management of a program of coercive abortion or involuntary sterilization.” The Kemp-Kasten law was enacted in 1985 in reaction to widespread concerns about UNFPA’s involvement with the Chinese government’s coerced abortion policies for population control. The Reagan administration successfully defended its actions against UNFPA in a lawsuit (in which the DC Circuit concluded unanimously that “the UNFPA's activities in China aid the aspects of China's program that Congress condemned.”). President Clinton resumed funding for UNFPA during his tenure in office. President George W. Bush later changed this policy by an Executive Memorandum transferring funding from UNFPA to the Child Survival and Health Program Fund (administered by U.S. Aid for International Development “in support of reproductive health and maternal health and related programs”).v President Bush defended his reversal of the Clinton policy by citing UNFPA’s alleged “support of, and involvement in, China’s population-planning activities allow[ed] the Chinese government to implement more effectively its program of coercive abortion.”vi
Congressman Chris Smith (R-NJ) attempted to propose an amendment to the most recent omnibus appropriations bill that would have reversed President Obama’s actions, restricting funds to UNFPA. The Democratic leadership of the House blocked the consideration of this amendment.
* Carter Snead is an Associate Professor at the University of Notre Dame Law School. He was recently appointed by the Director-General of the United Nations Education, Science, and Culture Organization (UNESCO) to serve a four-year term on the International Bioethics Committee (IBC) – the only intergovernmental bioethics committee in the world with a global mandate. He recently concluded his service as the U.S. government's Permanent Observer to the Council of Europe's Steering Committee on Bioethics (CDBI). Professor Snead led the United States delegation to UNESCO from 2004-2005 in its multilateral negotiation of the Universal Declaration on Bioethics and Human Rights. From 2002-2005, he served as General Counsel to the President's Council on Bioethics, where he advised the Chairman and members on the legal and public policy dimensions of ethical questions arising from advances in biomedical science and biotechnology. His scholarly works have appeared in the New York University Law Review, the Harvard Law Review Forum, the Journal of Medicine and Philosophy, Political Science Quarterly, and the American Journal of Bioethics.
i See The White House, Mexico City Policy and Assistance for Voluntary Population Planning, Jan. 23, 2009, http://www.whitehouse.gov/the_press_office/MexicoCityPolicy-VoluntaryPopulationPlanning.
ii 22 U.S.C. § 2151b(f)(1) (2006).
iii See Memorandum on the Mexico City Policy, 1 PUB. PAPERS 10 (Jan. 22, 1993). President Obama likewise rescinded the policy on his third full day in office.
iv Memorandum on Restoration of the Mexico City Policy, 1 PUB. PAPERS 10 (Jan. 22, 2001). www.guvwurld.org/Fascism/American Constitution Society For Law and %Policy -%.
v.Memorandum on the Transfer of Funds From International Organizations and Programs Funds to the Child Survival and Health Programs Fund, 38 WEEKLY COMP. PRES. DOC. 1660 (Sept. 30, 2002).
vi Todd S. Purdum, U.S. Blocks Money for Family Clinics Promoted by U.N., N.Y. TIMES, July 23, 2002, at A1. The report of the China UNFPA Independent Assessment team recommended that “unless and until all forms of coercion in the PRC law and in practice are eliminated, no U.S. Government funds be allocated for population programs in the PRC.” U.S. Department of State, Report of the China UNFPA Independent Assessment Team, (May 29, 2002), http://www.state.gov/g/prm/rls/rpt/2002/12122.htm. Supporters of UNFPA vigorously dispute the assertion that it supports China’s program of coerced abortion in any fashion, and thus support funding for UNFPA.