Still Good to Go For Now: Permissible Abortion-Related Activities Under Current U.S. Law and Policy

Thursday, December 19, 2024

Although most informed observers in Washington view the imposition of new abortion-related funding restrictions on foreign aid as inevitable, it is important for everyone to remember that the United States has only one presidential administration at a time. Joe Biden is still president, and there is no need for nongovernmental organizations (NGOs) to comply in advance with potential policies of a future administration.

The November 6th election of Donald Trump did not change or alter the longstanding statutory restrictions on abortion contained in the legislation that governs U.S. foreign assistance. These remain in effect. Nor did Trump’s election change the policies and programming of the U.S. Agency for International Development (USAID), State Department, or any other government agencies implementing global health programs—at least for now. The U.S. government continues to partner with other governments, NGOs, multilateral organizations, and the private sector unabated.

That being said, based on the history of his actions during his first term and with anti-abortion extremists seeking to hold him accountable to the draconian recommendations proposed in Project 2025, Donald Trump will undoubtedly announce his intention to impose an expansive version of the Global Gag Rule (GGR) shortly after he is inaugurated as president on January 20.

But it will take some time—months if last time is any guide—for the policy change to be implemented on the ground. In the meantime, an NGO—both U.S. and non-U.S. NGOs—should proceed with any non-U.S. government (USG)-funded abortion-related activities in which it may be currently engaged without fear of losing its eligibility for USG assistance until such time that new GGR restrictions are officially communicated to and imposed on the organization by its prime U.S. NGO funding partner or its USG funding entity.

If the past is prologue, it can be expected that President Trump will sign a presidential memorandum soon after his inauguration in January that will revoke President Biden’s  2021 presidential memorandum rescinding the GGR and reimpose the GGR in some form, just as he did eight years ago.

The memorandum will likely further instruct the Secretary of State, the USAID Administrator, and the Secretary of Health and Human Services to “implement a plan to extend the [policy’s] requirements” to as-yet-to-be-determined types of U.S. foreign assistance furnished by their departments and agencies. Trump will, without question, apply the GGR to all USG global health assistance as he did during his first term. Still, it remains to be seen whether he will expand the eligibility restrictions to additional types of foreign aid beyond global health and/or funding recipients previously exempt (e.g., U.S. NGOs, public international organizations, and “bilateral government-to-government agreements,” as called for in Project 2025) and funding mechanisms to which the GGR restrictions have not been applied in the past [e.g., contracts]).

At some point, several months into 2025, departments and agencies will issue revised guidance implementing the GGR that will take the form of the standard provisions that are part of grants and cooperative agreements that NGOs must agree to abide by in order to receive USG assistance. In 2017, NGOs were not required to ensure compliance with the funding eligibility conditions until the State Department rolled out the implementation plan for expanding the GGR to all global health assistance, nearly four full months after the Trump White House first issued the presidential memorandum reinstating the GGR.

But, even then, GGR compliance was not required until the non-U.S. NGO faced a new funding action on or after May 15, 2017, either through a new award or when an existing grant, cooperative agreement, subgrant or grant under contract was amended “to add incremental funding” or “to add new funding.” The restrictions did not apply to funding already obligated to a non-U.S. NGO — as a recipient or a sub-recipient — under an existing grant, cooperative agreement, subgrant or grant under contract until said organization agreed to comply with the policy, at which point it applied to all funding on hand.

Similarly, during Trump’s first term, U.S. NGOs did not have to flow down the policy to its non-U.S. NGO sub-recipients until the U.S. NGO accepted the standard provisions in its own agreements with the USG. As with non-U.S. NGOs, this occurred when the U.S. NGO faced a new funding action, either in negotiating a new award or when an existing grant, cooperative agreement, subgrant, or grant under contract was amended “to add incremental funding” or “to add new funding.” NGOs indicated their agreement to abide by the policy terms by accepting the standard provisions in their awards.

[One disclaimer—it is possible that the transition team for the incoming Trump administration may be able to move more quickly to produce guidance using the first term’s version as a template depending on how dramatically the policy might be expanded.]

Earlier this year, in response to an ongoing need for clarification on what is allowable and to combat disinformation being spread by abortion rights opponents, PAI issued the publication Good to Go, which provides an overview of what abortion-related activities are permissible under current U.S. law and policy – including activities that U.S. and non-U.S. government sources can fund. As the chart indicates—with the GGR not currently in force—all organizations are permitted to use non-USG funds to perform abortion, counsel and refer for abortion, lobby for the liberalization of abortion laws, purchase and distribute manual vacuum aspiration (MVA) kits and engage in biomedical research on abortion. The chart also indicates the types of abortion-related activities that the NGO can or might be able to undertake with USG funding. (A more detailed discussion of the permissibility of these types of activities, whether supported with USG or non-USG funding, is included, along with citations to official legal and policy authorities.)

PAI created this resource to address persistent questions and concerns faced by advocates and implementers and to share updated official guidance on permissible activities partly because of the long-term chilling impact the GGR has had on global health. Our goal was to provide clear and simple policy guidance that enables program implementers to offer the broadest range of abortion information and services possible.

The advice to NGOs contained in the chart remains as valid as it was last March when it was published and will continue to be so until the moment that an organization is formally presented with the choice between remaining eligible to receive USG assistance by ending their non-USG-funded abortion activities—OR—foregoing USG funding to continue to provide comprehensive reproductive health care to their patients. It is a truly Faustian bargain that no organization should be forced to make.

Until such time as an NGO is presented with that difficult choice, however, it is still “good to go” in continuing to furnish safe abortion services and engage in other abortion-related activities with non-USG funds without legally jeopardizing its eligibility for USG assistance later.