A cabal of lawyers has been working pro bono and under the radar for nearly two years to fight against the harm they say President Donald Trump’s anti-abortion foreign policy is causing globally.
This is the first time a faction of lawyers of this size and reach has covertly convened to mitigate the health-related global policies of a US president, according to the two organizations that convened this group, two lawyers in the group, and five experts familiar with the group’s work.
Since it first formed at the beginning of the Trump administration, members of the group of around 20 lawyers have cooperated to mitigate the effects of the Mexico City Policy, a rule referred to as the “global gag rule” by opponents, that prevents US funding from going to international aid organizations that “perform or actively promote abortion as a method of family planning.”
The rule has been reinstated by every Republican president since Ronald Reagan but was greatly expanded by the Trump administration to include not just family planning organizations, but all international health programs funded by the US. Even organizations that don’t advocate for abortion rights or provide abortion services have found their funding at risk, and a lack of clarity from the administration on exceptions to the rule and how organizations are expected to comply has expanded the impact far beyond the funding that should actually be affected.
Trump's Mexico City Policy was officially implemented in May 2017, and according to several global health organizations, including PAI, CHANGE, and Marie Stopes International, the rule has already caused the shuttering of clinics that have little to do with abortion but instead provide care for HIV/AIDS, maternal health, and malaria, limiting those services for thousands of patients. Because it often takes more than a year and a half to see the on-the-ground impact of a funding regulation like the Mexico City Policy, the overall effect could be much broader.
Among the organizations that are subject to the Mexico City Policy is the President’s Emergency Plan for AIDS Relief, which was created by the George W. Bush administration to combat HIV/AIDS. Under Bush, this federal program and the organizations it funded were not subject to the Mexico City Policy, but their funding now makes up roughly two-thirds of the estimated $7.4 billion in US funding potentially affected by Trump’s version of the policy, according to reports from the Kaiser Family Foundation. (Family planning programs only account for about $600 million of the funds affected by the rule, the report says.)
Anticipating this broad effect, the group of lawyers made it their mission to mitigate the policy's harm by negotiating with the administration and providing legal counsel to organizations that think the policy has been misapplied to them. The group is considering litigation against the US government over the policy as well.
The “legal working group” (as its members refer to it) comprises mostly lawyers representing US-based nongovernmental organizations, many of which have “consultative status” to the UN, meaning they attend UN meetings and contribute to UN policy processes and discussions. The group was brought together by the Center for Health and Gender Equity (CHANGE), a US-based, UN-certified, international aid organization, and the Center for Reproductive Rights. While CHANGE does not received US funding, the other participating organizations collectively receive hundreds of millions of dollars in funding from the US government.
Many of the lawyers and groups involved need to remain anonymous due to attorney-client privilege, members of the working group told BuzzFeed News, and to avoid the scrutiny of the US government. While other groups have publicly challenged the Trump administration’s Mexico City Policy, the legal working group worries that operating out in the open would make them more susceptible to being blocked by the government or politicized into a standstill by anti-abortion interest groups. International aid groups that fear retribution from the US government feel more comfortable seeking help from a group that works behind the scenes.
“The fact that it is operating below the radar is important,” CHANGE president Serra Sippel told BuzzFeed News. “They wouldn’t be able to do the work they’re doing otherwise.”
“I don’t think we should underestimate the way in which this government might seek to retaliate,” CRR’s Director of Global Advocacy Rebecca Brown told BuzzFeed News. “This administration has shown that it is happy to use the full force of the US government to come down on organizations in the US, and even more so those abroad, that don’t have the ability to push back and don’t have the constitutional rights we do to push back.”
The chief concern of the group, four of its members told BuzzFeed News, is making sure organizations in countries that rely on US funding to provide health care are not “over-complying” with the Mexico City Policy, meaning ending family-planning programs that don't technically violate the policy, out of fear of the US cutting funding — a phenomenon advocates call the "chilling effect.”
“This effect is undermining 40 to 50 years of progress on global health care service delivery,” said Seema Jalan, the director of the UN Foundation’s Universal Access Project, which lobbies the US government alongside global reproductive rights organizations. “It’s is one of the most damaging parts of the global gag rule.”
The chilling effect stems from a lack of understanding of the Mexico City Policy and the contracts that the aid organizations have to sign to comply with it, combined with a general awareness of the Trump administration’s opposition to abortion, according to Jalan, Sippel, PAI CEO Suzanne Ehlers, and several other NGO leaders in the group.
“Organizations that are trying to implement this rule have had to commit unprecedented resources” to interpreting and applying it, said a lawyer in the working group who asked for anonymity to describe confidential deliberations within the working group and communications with the Trump administration.
“We’ve had to commit thousands of man-hours at every level of our organization, from our CEO to people in the field, and I think that is just crazy, “ the lawyer said. “We’re trying to comply with the rule as it’s drafted … and it’s not clear if the people who drafted it had any specific ideas of how it would be implemented.”
“I’ve seen the contracts they have to sign, and even as a native English speaker these contracts are not easy to understand, incredible legalese,” Sippel told BuzzFeed News. “And we have not seen effort from [the] State [Department] to help make it clear.”
While this effect occurred under earlier versions of the rule, the expansion of Trump’s policy means more organizations have to comply with the Mexico City Policy and navigate it for the first time.
Another concern is clarifying the policy's exceptions, which many of the affected organizations would be eligible to take advantage of if they understood how, the group's members said. The policy states that “abortions performed for the physical or mental health of the mother and abortions performed for fetal abnormalities” count as methods of family planning, but “abortions performed if the life of the mother would be endangered, if the fetus were carried to term, or abortions performed following rape or incest,” do not.
The Trump administration, they said, has not made these exceptions clear to the groups they apply to.
In response to questions regarding the clarity of the Mexico City Policy, a State Department spokesperson said in a statement to BuzzFeed News, “Departments and agencies have taken a number of steps to ensure local partners and sub-grantees fully understand the [Mexico City] policy.” These steps include, but are not limited to, “extensive outreach to, and training for” USAID staff in the field and headquarters, the statement said, as well as in-person and online training courses available in English and Spanish for organizations complying with the rule.
“USAID continues to design tools to facilitate the policy’s implementation and help ensure that implementing partners fully understand it,” the spokesperson wrote.
The legal working group got its start right after the 2016 election, when those in the global family-planning sphere already knew that reimplementation of the Mexico City Policy was likely. The group meets “as needed, but about quarterly” in one of the involved law firms’ offices in DC.
Trump announced the policy during his first week in office, but it wasn’t officially implemented until May 2017. Between the announcement and implementation, the working group quickly realized that because of Trump’s planned expansion of the rule, organizations in countries that require health providers to counsel patients on abortion options and refer them for the procedure (considered "active promotion" of abortion by the Mexico City Policy) could end up in a catch-22, having to choose between losing US funding and breaking local laws.
The most notable example of this was in South Africa — the country with the largest epidemic of people living with HIV/AIDS — which receives a large percentage of US funding for combatting the virus.
Members of the working group drafted a memo laying this concern out, had one-on-one conversations with Trump officials, and spread the word to fellow NGOs, Sippel and another lawyer in the working group said. When the rule was announced in May, it included a new exception for organizations operating in countries where local laws contradict the policy's requirements.
Sippel called the exception the working group’s “big success story.” But this was only the beginning.
“Like any policy change, the story doesn’t end with the language being put into the rule here in Washington. It’s making sure the affected organizations ... understand what this is,” Sippel said.
South Africa is not the only country eligible for the exception, and the group is starting to work on how this exception could be applied in Zimbabwe, Mozambique, and other countries.
“It’s almost like changing the words in Washington is the easy part but getting those words to be meaningful and have an impact is difficult.”
The group's members say that much of what they do is fight back when the administration mistakenly applies the policy to programs that do not qualify as international health programs and shouldn't be subject to the rule.
“The bureaucracy puts a heavy burden on groups that should just be focused on providing services to save lives instead of scrutinizing the funding,” Sippel said. “Some of the errors are just clerical, but is it someone [in the administration] being overzealous? I don’t know.”
When presented with this claim, a State Department spokesperson responded by explaining which funding and programs the Mexico City Policy applies to (“global health assistance” programs) and which it does not (“humanitarian assistance, including Department of State migration and refugee-assistance programs,” and “disaster and humanitarian-relief programs” run by USAID and the Department of Defense). The spokesperson did not directly respond to the claim that sometimes the administration misapplies the rule.
All the members who spoke to BuzzFeed News pointed out the strange contradiction of this group: All they’re doing is helping the administration clarify its own policy. They’re working within the rules and doing what USAID and the State Department should be doing, the members said. And yet, they have to keep their cooperation as a group under wraps from the administration and from anti-abortion interest groups that are pushing for the rule to be broadly applied.
“We are trying to clarify ambiguities and promote reasonable, good faith interpretations of this rule in a highly politicized environment,” one of the lawyers who asked not to be identified said. “We’re just trying to implement it … in a way that receives the least amount of negative attention.”
As for negative attention from the administration so far, the group has not received “explicit pushback,” Sippel said. “But the fact that the administration will sit on this information and will not proactively share the information about the exceptions is problematic and sort of a passive pushback.”
Though the group's work has not overtly challenged the administration, the group is looking into potential litigation to push back against the rule, four members of the group confirmed.
“We have explored litigation and we are still in the process of exploring various strategies,” said Brown, whose organization has a program that matches NGOs with lawyers to fight their cases. “A big issue is the ability to gather evidence of impact,” she said, referring to the time it takes for global policies like the gag rule to have tangible, documentable impacts on world health. “We’re still looking at how to document cases for this purpose.””
Still, several experts in global health who spoke to BuzzFeed News warned that while the group's work is important, it can only address a fraction of the programs impacted by the rule, and can't address similar issues taking place on US soil.
The Center for Health and Gender Equity was misnamed in an earlier version of this post.