Submission to the UK AAPG on Population, Development and Reproductive Health inquiry on Abortion in the Developing World and in the UK.

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1 Submission to the UK AAPG on Population, Development and Reproductive Health inquiry on Abortion in the Developing World and in the UK September 2017 Opportunities for the UK to assume a leadership role in ensuring abortion care is included as part of necessary, comprehensive and non-discriminatory medical care The UK has been a global leader in promoting abortion as a matter of women s rights under international law and funding abortion services. However, while abortion as protected and necessary medical care for women is increasingly recognized in international human rights and humanitarian law, access to abortion services on the ground remains limited in many contexts. This submission sets out how the UK can continue its leadership to ensure the provision of abortion care in the face of restrictive policies such as the Global Gag Rule, as well as in areas for priority action, such as humanitarian aid for war victims. The Global Justice Center welcomes the opportunity to provide the AAPG with this information and looks forward to continued engagement with the group on this issue. a. Current context: US Global Gag Rule A major current barrier to the provision of abortion services around the world are US abortion restrictions on foreign assistance in particular the Helms and Siljander amendments and the recently reinstated Global Gag Rule. 1 The Helms amendment restricts the provision of abortion services, with no exceptions for rape, life endangerment and incest, as well as nearly all abortion-related speech with US foreign assistance funds. The Siljander amendment prevents US grantees from lobbying for or against abortion with their US funds. Together, these restrictions, which apply to all recipients of US foreign assistance regardless of the type of organization, constitute an absolute ban on abortion related service provision and speech with US funds. Furthermore, where grantees do not segregate their US funds from funds of other donors, these restrictions can also censor funds from other donors as well. The application of these restrictions has resulted in severe harm to women and girls around the world for decades, 2 including through the denial of abortion services for female war rape victims in humanitarian settings. Exacerbating the impact of these restrictions is President Trump s recent reinstatement and expansion of the Global Gag Rule ( GGR ), now termed the Protecting Life in Global Health Assistance policy. The GGR extends the provisions of the Helms and Siljander amendments on non-us based NGOs to cover the entirety of their activities, including those funded by other donors. 3 President Trump not only reinstated the rule as it had been imposed by previous Republican presidents, but also expanded it to cover all US global health assistance funds, which amounts to approximately $8 billion in As a result of this expansion (prior versions of GGR 1

2 only applied to US family planning assistance) funding for a whole range of health services is impacted, including maternal and child health, malaria, nutrition, Zika and HIV. This unprecedented expansion of GGR s scope will narrow the number of providers around the world who are willing and able to provide information about abortion and provide abortion services. The challenges posed by US abortion restrictions, in particular in today s landscape with the expanded GGR in place, requires that other international donors take proactive measures to ensure that the ideologies of anti-choice politicians in the United States do not dictate the care that is available to women and girls around the world. The UK has long taken leadership on this issue including by instituting a development policy that commits to funding abortion services 5 and engaging in conversations with the US government on the Helms amendment 6 and its continued leadership is needed more than ever. Proactive steps that can be taken have already emerged: the Dutch She Decides fund is an important start to filling the funding gap caused by the GRR; and Sweden has announced that it will not fund groups subject to the GGR in an effort to create a counter-balance. While these steps are laudable, it is essential that they be sustained and extend beyond 2017 and the initial outrage around the GGR. We urge the UK to take leadership in doing so. Furthermore, beyond funding, there are other steps the UK can take to help eliminate the cloud of confusion and censorship imposed by US abortion restrictions on foreign assistance. First, states like the UK must use their voice to reinforce the importance and centrality of abortion to women s human rights and equality. Where the GGR has been in place in the past, we saw a marginalization of abortion in order to focus on less controversial aspects of family planning. This feeds into the success of the US s abortion censorship. As a result, it is essential that measures to combat the GGR are grounded in the promotion of abortion services as necessary medical care to which women are entitled. Second, even with the GGR in place, those subject to it may continue to engage in certain activities, including the provision of abortion and information about abortion in cases of rape, threat to life and incest, as well as passive referrals where a woman clearly states her intention to have an abortion and asks for information as to where to obtain one. All donors should ensure that where they fund gagged organizations, they continue to, at a minimum, provide permitted information and services. Third, the UK should ensure that those who are not subject to the GGR segregate their US funds from UK funds in order to ensure that the Helms and Siljander restrictions are not applied to UK money. Recommendation: Commit to sustainable funding specifically for abortion services in development aid and ensure that the funding goes to non-gagged organizations. Recommendation: Ensure that UK grantees segregate any US aid from UK funds and understand what activities are still permitted under the GGR. 2

3 Recommendation: Take leadership in global, regional and domestic venues to ensure that abortion care is understood as a part of necessary, comprehensive and non-discriminatory medical care for women and girls. b. Importance of recognizing abortion as protected medical care Recognition of abortion as protected medical care under international humanitarian law (IHL) is an important step in ensuring the wounded and sick receive the full extent of services they need in conflict situations. Under IHL the wounded and sick, including pregnant women and girls, are entitled to the option of abortion services as part of non-discriminatory medical care required by their condition. 7 Multiple indicators reveal the significance of these legal principles. Notably, these protections are non-derogable. This is also recognized in international human rights law which situates abortion as care central to achieving, inter alia, the right to health, life, equality and to be free from torture and cruel treatment. 8 In 2014, the UK amended its humanitarian aid policy to acknowledge safe abortion services as part of IHL s protections. 9 The Department for International Development (DFID) report was a critical recognition by the UK and has proven influential on the global stage, as the Netherlands, France, and the European Commission have all subsequently expressed similar policies. 10 Still, glaring gaps remain in obtaining complete recognition of these vital protections on a global stage. These gaps can be viewed as opportunities for the UK to play a crucial role in future engagements. An aim of IHL is to ensure the wounded and sick receive the care they need by framing the protections as rights. However, humanitarian actors have muddled this message by concentrating on needs-based frameworks as something separate from rights. It is essential that the underlying rights protected by IHL be invoked for victims to receive necessary medical care, thus satisfying their needs. The UK can play a role in clarifying this point to humanitarian actors and other donors. Additionally, the UK can be a part of helping to push back against negative movement. Establishing a baseline of commitments for participation in regional cooperation efforts and conferences aids in ensuring the UK maintains a consistent message on abortion as protected medical care. It also allows the UK to come prepared to these types of proceedings, where interests of negotiations and consensus have the potential to cloud legal imperatives. As an example, at the 32 nd International Conference of the ICRC/IFRC Conference in December 2015, language was inserted at the last minute into the ICRC draft resolution on sexual and gender-based violence excluding all sexual or reproductive medical care for victims of armed conflict from IHL protection, instead relegating such medical care to national laws. Diligent planning around a coherent policy can help to avoid these types of inadvertent missteps in the future. 3

4 Recommendation: The UK can take leadership in ensuring that abortion is recognized as protected medical care under IHL. Recommendation: The UK should develop commitments and guidelines to ensure that abortion is included as protected medical care in global policy venues and conferences in which it participates. c. Implementing UK Policy Despite the UK s 2014 policy, abortion services are rarely, if ever, provided in the field. 11 As noted above, the situation is only getting worse owing to a resurgence of restrictive policies and a lack of clear guidance on the ground. When effectively implemented, the UK policy on IHL and abortion can set a new global standard that saves lives and respects the rights of women and girls. At its most basic, IHL imposes universal rules designed to relieve the suffering of war victims. But because legal safeguards only go so far on paper, IHL imposes positive legal obligations on states to ensure its rules are taken from paper to practice. 12 These obligations are based on the principle that knowledge, specific guidance and diligence are essential to the application of law and the relief of suffering. Nowhere is this truer than in the case of women and girls impregnated by war rape: implementation of the UK s policy would uphold IHL, relieve war victims suffering, and counteract the effects of restrictive policies such as the US Helms amendment and GGR. Thus, it is critical for the UK Government to: reaffirm its policy to its humanitarian partners; monitor those partners implementation of the policy; and require its partners to segregate UK funds from other donors to ensure effectiveness and coherence with law. The Importance of Reaffirming As things currently stand, the world s humanitarian providers are upended and confused by the new framework concerning abortions in humanitarian settings, especially where doctors and medical staff are already operating under complex and sometimes threatening circumstances. This unstable environment has led to a situation where life-saving abortions not taking place in conflict settings where they are legally required to be offered. The lack of awareness and failure to provide necessary care is a matter of humanitarian and legal urgency. To save lives and comply with its IHL obligations, the UK should take global leadership by demonstrating, unequivocally, that its funds may be used in line with IHL to provide abortions for victims of armed conflict. Recommendation: The UK can issue a memorandum to humanitarian partners reiterating its 2014 policy concerning abortions and IHL in particular IHL s primacy in situations of armed conflict and its protections for victims and medical staff. The memorandum can underscore the UK s existing commitments to IHL and on protection of children in armed conflict. 4

5 The Importance of Monitoring Concrete operational measures, means and mechanisms are required to ensure war rape victims actually receive the medical care to which they are entitled. However, the monitoring mechanisms of the UK policy, if they exist at all, are not well publicized and therefore not well understood. Indeed, the fact that abortions are not yet generally provided in humanitarian settings indicates more needs to be done for the policy to be successful. Doctors and medical staff need clear guidance to ensure that their actions comply with UK policy, as well as with IHL. Recommendation: The UK should explore, together with staff from humanitarian partners, how the IHL obligation to ensure victims receive appropriate care can be met with regards to abortions for women and girls impregnated by war rape. Recommendation: The UK should ensure its contracts, memoranda of understanding, and other agreements with humanitarian partners and conflict states clearly state that in situations of armed conflict, IHL governs the medical care for the wounded and sick and these obligations must be complied with by all humanitarian staff. The Importance of Segregating The UK s policy will be ineffective if its funds are not segregated from other, more restrictive funds. In particular, US humanitarian funding explicitly denies abortion services. 13 Because the US is the world s largest single bilateral humanitarian aid donor, its restrictive policy often influences the care provided at the operational level, regardless of their other funding. Recommendation: The UK should ensure its funds are kept separate from US humanitarian funds in all accounts as well as separately from any other donor funds that may prevent UK aid from being administered in full compliance of IHL. d. Shifting healthcare provider attitudes While the UK s recognition of abortion as protected medical care is a fundamental and laudable step, it is important to understand the barriers that continue to stand in the way of implementing these policies and turning them into practice. Significant impediments to the performance of abortions are uncertainties regarding legal status of abortion and negative healthcare provider attitudes. Confusing policies like GGR cause providers concerns about whether they will lose funding if they offer advice on or perform abortions. 14 As a result, providers may censor themselves and restrict the information they offer to patients out of an abundance of caution. 15 Consequently, women who seek information on or have decided to obtain an abortion are wrongly turned away leading them to pursue unsafe alternatives on their own. Providers hesitancy to perform abortions has also been shown to stem from moral and religious reservations as well as stigmatization by colleagues and communities. 16 In some circumstances these 5

6 negative associations of disinclined providers have even contributed to patients receiving inadequate care. 17 More work remains to be done on changing providers attitudes regarding abortion and the need to provide them. For one, provider training is needed so that IHL s legal obligations are clearly understood. This includes the important principle that regardless of national law, abortion is protected medical care for victims of armed conflict under IHL. Additionally, utilizing a rights-based approach could be more beneficial in shifting provider attitudes if it is understood that abortion is necessary medical care that women and girls are entitled to under international human rights and humanitarian law. With respect to countering negative provider attitudes, several studies have resulted in recommendations worthy of consideration. First, it is essential that providers be competent, skilled, and trained to provide necessary care. 18 Additionally, values clarification workshops can help providers differentiate their own personal beliefs and attitudes from the needs of women seeking abortion services. 19 Finally, dedicated abortion centers, where providers who choose to be involved in abortion services are recruited and retained, may also be beneficial in creat[ing] a more supportive environment for both clients and providers. 20 Recommendation: The UK should engage in proactive measures with its grantees to help shift provider attitudes towards the provision of abortion and ensure that it is understood as medical care that is required for women as a matter of right. Submitting Organization Information Organization: Global Justice Center Contact: Akila Radhakrishnan, Vice-President & Legal Director, akila@globaljusticecenter.net 1 USAID, Global Health Legislative & Policy Requirements, 2 Ipas and Ibis Reproductive Health, U.S. funding for abortion: How the Helms and Hyde Amendments harm women and providers (2015). 3 Global Justice Center, Helms v. Gag: US Abortion Restrictions Abroad, 4 Kaiser Family Foundation, The Mexico City Policy: An Explainer (June 2017), 5 Department for International Development, Safe and unsafe abortion: UK s policy position on safe and unsafe abortion in developing countries (June 27, 2014). 6 See e.g Government Response to the Report of the House of Lords Sexual Violence in Conflict Committee, para. 78 (30 Jun. 2016); Human Rights Council, Report of the Working Group in the Universal Periodic Review: United States of America, para , U.N. Doc. A/HRC/30/12 (20 Jul. 2015). 7 See International Committee of the Red Cross (ICRC), Article 3 Common to the four Geneva Conventions of 1949, 1949, 6 UNTS 31; ICRC, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977, 1125 UNTS 3, art. 10, 16; ICRC, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non- International Armed Conflicts (Protocol II), 1977, 1125 UNTS 609, art. 7, Ipas, International Human Rights Bodies on Unwanted Pregnancy and Abortion Part 1 (Jun. 2014). 9 Department for International Development, Safe and unsafe abortion: UK s policy position on safe and unsafe abortion in developing countries (June 27, 2014), p. 9. 6

7 10 See Global Justice Center, Reference Language on Abortion and IHL (2017), 11 G. Burkhardt et al., Sexual violence-related pregnancies in eastern DRC: a qualitative analysis of access to pregnancy termination services, 20(10) CONFLICT & HEALTH (2016). 12 Common Article 1 to the Geneva Conventions; 2016 Commentaries to Geneva Convention I, Art. 1, 2-4, 9-10, 19-20, See Global Justice Center, The Right to an Abortion for Girls and Women Raped in Armed Conflict (2011). 14 See Therese McGinn & Sara E. Casey, Why don t humanitarian organizations provide safe abortion services?, CONFLICT AND HEALTH 10:8 (2016), p See Therese McGinn & Sara E. Casey, Why don t humanitarian organizations provide safe abortion services?, CONFLICT AND HEALTH 10:8 (2016), p See Patience Aniteye & Susannah H Mayhew, Shaping legal abortion provision in Ghana: using policy theory to understand provider-related obstacles to policy implementation, HEALTH RESEARCH POLICY AND SYSTEMS 11:23 (2013); Jane Harries, Kathryn Stinson & Phyllis Orner, Health care providers attitudes towards termination of pregnancy: A qualitative study in South Africa, BMC PUBLIC HEALTH 9:296 (2009); Ulrika Rehnstrom Loi, Kristina Gemzell-Danielsson, Elizabeth Faxelid & Marie Klingberg-Allvin, Health care providers perceptions of and attitudes towards induced abortions in sub-saharan Africa and Southeast Asia: a systematic literature review of qualitative and quantitative data, BMC PUBLIC HEALTH 15:139 (2015). 17 Ulrika Rehnstrom Loi, Kristina Gemzell-Danielsson, Elizabeth Faxelid & Marie Klingberg-Allvin, Health care providers perceptions of and attitudes towards induced abortions in sub-saharan Africa and Southeast Asia: a systematic literature review of qualitative and quantitative data, BMC PUBLIC HEALTH 15:139 (2015), p See World Health Organization, Safe abortion: technical and policy guidance for health systems, Second edition (2012), p. 63; Ulrika Rehnstrom Loi, Kristina Gemzell-Danielsson, Elizabeth Faxelid & Marie Klingberg-Allvin, Health care providers perceptions of and attitudes towards induced abortions in sub-saharan Africa and Southeast Asia: a systematic literature review of qualitative and quantitative data, BMC PUBLIC HEALTH 15:139 (2015), p World Health Organization, Safe abortion: technical and policy guidance for health systems, Second edition (2012), p. 72. See Katherine L Turner, Alyson G Hyman & Mosotho C Gabriel, Clarifying Values and Transforming Attitudes to Improve Access to Second Trimester Abortion, REPRODUCTIVE HEALTH MATTERS 16:sup31, (2008); Ulrika Rehnstrom Loi, Kristina Gemzell-Danielsson, Elizabeth Faxelid & Marie Klingberg-Allvin, Health care providers perceptions of and attitudes towards induced abortions in sub-saharan Africa and Southeast Asia: a systematic literature review of qualitative and quantitative data, BMC PUBLIC HEALTH 15:139 (2015). 20 Jane Harries, Kathryn Stinson & Phyllis Orner, Health care providers attitudes towards termination of pregnancy: A qualitative study in South Africa, BMC PUBLIC HEALTH 9:296 (2009), p. 8. 7