On Tuesday March 26, Secretary of State Mike Pompeo intensified the Trump-Pence administration’s attack on reproductive rights. While expanding the reach of the harmful Global Gag Rule, he also went after the Organization of American States (OAS), cutting $210,000 in U.S. funds to the regional body. The newest target of the administration’s crusade against reproductive rights should come as no surprise. In December 2018, nine anti-choice Republican senators sent the Secretary a letter urging the defunding of the Inter-American Commission on Human Rights (IACHR) and the Inter-American Commission of Women (CIM) – bodies of the OAS – that were allegedly lobbying for the legalization of abortion in Latin America and the Caribbean using United States taxpayer funds. The attack on the OAS this week is not about the supposed misuse of U.S. taxpayer funds. Nor is it a legitimate effort to “protect the least amongst us” as Secretary Pompeo claims. Rather, it is yet another symbolic attempt to curtail the critical work of organizations around the world committed to advancing sexual and reproductive health and rights for the most vulnerable women, adolescents, and children. This includes the right to safe abortion care.
IACHR and CIM: Ensuring Fulfillment of Human and Reproductive Rights in Latin America and the Caribbean
Established in 1948, the OAS promotes peace, justice, and regional collaboration across 35 member countries, including the United States. Within the OAS structure, IACHR and CIM are autonomous bodies that safeguard human rights and women’s rights, respectively. Both the IACHR and CIM work on a range of issues across Latin America and Caribbean and hold the OAS member states accountable for abuses through human rights monitoring, case investigations, and recommendations for how member states can fulfill their commitments to women’s and human rights. On gender-related issues, the IACHR bases its work – unlike the current administration, State Department, and representation at the UN – on international human rights standards.
The IACHR prioritizes the “specialized attention on the obstacles and barriers that prevent women from freely and fully exercising their human rights” in addition to “the guarantee of sexual and reproductive rights, linked to alarming rates of child pregnancy, common-law relationships and early and forced marriages” among children and adolescents among a range of human rights issues. In line with increasing momentum in member states to address pertinent women’s rights issues, the IACHR has investigated high rates of gender-based violence and recommended measures to increase women’s political participation and amend harmful legislation – including the criminalization of abortion – that disproportionately impact low-income, indigenous, and rural women and girls.
Actually Advocating for the “Least Amongst Us”
In Latin America and the Caribbean, more than 97 percent of women and girls of reproductive age live in countries with restrictive abortion laws. In six countries, abortion is completely criminalized. In those countries, low-income, rural, and indigenous women and girls often have limited access to sexual and reproductive health information and services, including contraception and prenatal care, in addition to facing high rates of intimate partner violence during pregnancy. These women have been prosecuted on criminal charges for suspected abortions in Argentina, El Salvador, Honduras, and Mexico, even when they suffered obstetric emergencies or miscarriages.
The alleged abortion lobbying U.S. senators have accused the IACHR of conducting stems from two public statements the commission made in 2018. First, in a March 2018 press release on El Salvador, the IACHR called on the government of El Salvador to address the wrongful imprisonment of women who suffered obstetric emergencies under the country’s total abortion ban, some who face imprisonment of up to 50 years. Per its mandate, the IACHR recommended the government to “launch a moratorium on the enforcement of Article 133 of the Criminal Code; carefully review the convictions in each of these 27 cases mentioned, to ensure that each of the women had a fair trial, free of stereotypes; and, should it be established that this was not the case, release the women.” Nowhere in the statement does the IACHR call for the legalization of abortion. Instead, it asks the government of El Salvador to comply with international human rights standards and ensure the sexual and reproductive rights of women and girls in El Salvador.
Second, in May 2018, at the 40th Hearing of the 168th Period of Sessions on the Right to Sexual and Reproductive Health of Women in Argentina, a panel of diverse civil society and government representatives presented information to the IACHR on issues women, girls, and adolescents face in Argentina – including access to abortion. The hearing was a critical opportunity to identify steps to address those barriers and mechanisms for monitoring implementation, per international human rights standards. Although abortion is legal in Argentina on the grounds that pregnancy constitutes a risk to the woman’s life or that the pregnancy was a result of rape, administrative and cultural barriers limit access to safe abortion, particularly for adolescents. Girls who suffered sexual violence and became pregnant have been denied their right to legal abortion in Argentina by physicians and other health practitioners. Akin to the IACHR recommendations to El Salvador regarding the total abortion ban, IACHR Commissioner Macaulay reiterated that the criminalization of abortion victimizes the most vulnerable in Argentina.
Ironically, even the U.S. government’s most restrictive and harmful polices such as the Global Gag Rule and the Helms amendment make exceptions for rape, incest and pregnancies that endanger the life of the woman. For Pompeo to vilify upholding these protections is perverse at best.
If the Secretary of State actually believes in his statement to “protect the least amongst us,” he must acknowledge that the IACHR recommendations to the Argentinean and Salvadoran governments actually seek to do just that – protect women, youth, and girls from grave violations of their human rights.
Siljander and its Questionable Financial Rationale
Despite the questionable legitimacy of the case against IACHR, Secretary Pompeo already directed his “team to include a provision in foreign assistance agreements with the OAS that explicitly prohibits the use of funds to lobby for or against abortion.” Both Pompeo’s directive and the senators’ request to end funding to the IACHR and CIM are based on the 1981 Siljander amendment. This amendment to the annual State-Foreign Operations appropriations bill prohibits the direct use of foreign assistance funds “to lobby for or against abortion.” The Siljander amendment does not apply when lobbying on abortion is done using non-U.S. funds.
The most notable invocation of the Siljander amendment was by abortion opponents who alleged that State Department officials, including the U.S. Ambassador to Kenya, had violated the abortion lobbying prohibition by providing financial support between 2008 and 2010 to a Kenyan constitutional reform process, which resulted in a liberalization of Kenya’s abortion law. Both a State Department Inspector General’s report and an audit by the Government Accountability Office (GAO), the investigative arm of Congress, found no violation of the Siljander amendment, in part because of the lack of a definition of what the term “to lobby for or against abortion” means and the absence of clear guidance on how to comply and what types of activities are prohibited.
In response to the letter from anti-choice Senators, five former U.S. members of the IACHR wrote to Secretary Pompeo in February defending the important work of the commission and persuasively making the legal argument that, contrary to the Senators’ assertion, the human rights commission neither engages in “lobbying activities” nor violates the Siljander amendment, employing one of the definitions of lobbying in U.S. federal law contained in the Lobbying Disclosure Act.
Cruelly ironic is the fact that, according to the IACHR’s 2018 Annual Report, the year in which the alleged abortion advocacy activities occurred, the United States contribution to the IACHR was exactly $0. In fact, the U.S. reduced its contributions from $2.7 million in 2017 to zero in the 2018 fiscal year. That funding cut meant that other OAS member states—including Canada, Colombia, the Dominican Republic, and Ecuador—as well as permanent observers from the European Union had to offset the financial loss to IACHR. It is due to their support that the IACHR efforts to ensure human rights in the region could continue. This includes their 2018 recommendations to suspend enforcement and amend the total abortion ban in El Salvador and to comply with access to legal abortion care per national law in Argentina. In short, the United States tax payer funds did not support IACHR activities in 2018.
The $210,000 cut to overall OAS funding that Pompeo announced this week as punishment for its alleged ‘abortion-related activities,’ will in fact undermine the capacity of OAS to respond to ongoing political crises in Cuba, Nicaragua, and Venezuela—the very same crises which the administration sees as the OAS’ priority. Although this week’s cut in funding to the OAS is marginal compared to the 2018 zeroing out of U.S. IACHR contributions, the United States is essentially forcing the OAS and its autonomous bodies to prioritize addressing the political crises of the moment over the long-term promotion of human rights in the region. However, as the IACHR’s 2018 Annual Report suggests, human rights and political stability are inextricably linked and the IACHR will continue to advance both, without U.S. funding.
What This Cut Really Means for the State of Reproductive Rights in LAC
Invoking Siljander goes beyond undermining the OAS and specifically the IACHR’s mission to promote and protect human rights in the region. Pompeo’s directive on Tuesday was a clear signal from the Trump-Pence administration that it is committed to restricting reproductive rights around the globe and in this case, attempting to silence emerging debates in neighboring Latin American and Caribbean countries.
In spite of the administration’s continued attacks on global reproductive rights, countries, civil society actors, and community members in Latin America and the Caribbean will continue to defend and advance women’s and reproductive rights, including the organizations that defend these rights. The renewed and increased financial contributions of six members states to the IACHR as of 2018, in addition to ongoing civil society engagement around thematic priorities, is indicative of the critical role the IACHR and by extension the OAS plays in advancing human rights in the region.