Monday, May 11, 2020


United States Agency for International Development (USAID) v. Alliance for Open Society International, Inc. (AOSI), a case heard by the U.S. Supreme Court this week, has not garnered much attention from pro-life advocates — but it should. 

This is likely due to the prominence of concurrent cases like June Medical Services v. Russo and Little Sisters of the Poor v. Pennsylvania, but USAID v. AOSI has the potential to upend long-standing pro-life protections established by the Protecting Life in Global Health Policy (PLGHP), formerly known as the Mexico City Policy. 

Currently the PLGHP covers approximately $9 billion in foreign assistance and requires that “all NGOs receiving U.S. aid to refrain from performing or promoting abortion as a method of family planning in developing nations.”

Similar to the PLGHP, the policy in question in USAID v. AOSI deals with U.S. funding of overseas NGOs. It is being argued in the context of a public health program introduced by George W. Bush as the President’s Plan for HIV/AIDS Relief (PEPFAR) and funded by Congress in 2003 under the name of “The Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act.”

The program was designed to combat the world’s gravest diseases at a time when HIV/AIDS had taken the lives of more than 25 million people worldwide. By allocating billions of dollars to international HIV/AIDS relief, PEPFAR became the largest international public health program of its kind ever created. 

Since it was enacted in 2003, the Leadership Act has been passed by Congress three more times and has been signed — along with the authorization of additional funds — by Presidents Bush, Obama and Trump. In all, the United States has committed a total of $79.7 billion to the HIV/AIDS component of the Leadership Act. 

PEPFAR, or, the Leadership Act required that recipients of funds meet two conditions: First, they must agree that no funds will be used to promote or advocate the legalization or practice of prostitution, and second, they must have a policy explicitly stating that they oppose prostitution. In 2013 the Supreme Court ruled that the latter of these two requirements — that an organization must have an anti-prostitution policy in place — violated First Amendment principles.  

The question before the Supreme Court now is whether this same first amendment protection extends to foreign affiliates of U.S.-based NGOs.

If the Supreme Court rules in USAID v. AOSI that First Amendment free speech rights do extend to overseas NGOs, this would threaten some of the protections in the PLGHP. Such a decision would result in making it impossible to deny pro-abortion NGOs foreign assistance without violating their free speech ‘rights.’

This threat is not merely theoretical. During oral argument in this case, Justice Kavanaugh asked, “I’m interested in the implications of our decision in this case. In particular, if the government were to lose this case, would any other programs or statutes be invalidated or called into question by such a decision?”

The Solicitor General replied that it would affect the Mexico City policy in particular. “I think that there would be real concerns about that … I do think it would call into question a number of different statutory and administrative regulations of foreign speech that like — that likely couldn’t be applied domestically … It’s, in fact, commonplace for Congress and the Executive Branch to condition foreign aid to entities abroad on certain policy objectives, such as opposing terrorism or supporting women’s rights or opposing apartheid, or, in the case of the Mexico City policy, taking certain positions on abortion …”

In what was hopefully not a sign of what is to come, Justice Sotomayor replaced the word “prostitution” with “abortion.” She asked, “Mr. Michel, the long and the short of this is that a domestic agency that does not want to adopt a policy of being opposed to abortion but who is willing to not support it in a program, they can’t receive funds unless they affiliate with someone who will make the statement for them, correct?”   

On its face this case is about whether foreign organizations have constitutional rights, but it could impact whether the American people through their elected representatives are able to withhold money from foreign entities that are doing things they don’t support. The PLGHP is popular policy with Americans. In fact, recent Marist polling shows that the large majority of Americans — 75% — are not in favor of funding for abortions overseas. We hope that the Court avoids a decision that would compromise this long-standing and popular pro-life policy.

• Jeanne Mancini is president of March for Life.

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