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A Biden Promise About Overseas Abortion Funding Could Prove Difficult To Implement

A 19-year-old woman talks with nurse Valeria Zafisoa at a traveling contraception clinic in eastern Madagascar run by the British nonprofit group Marie Stopes International.
A 19-year-old woman talks with nurse Valeria Zafisoa at a traveling contraception clinic in eastern Madagascar run by the British nonprofit group Marie Stopes International.

Among the promises that President elect-Biden is expected to fulfill immediately upon taking office: lifting a ban that President Trump imposed on U.S. foreign aid dollars related to abortion.

Specifically, the ban prohibits foreign aid funding for privately-run overseas-based groups that "perform or actively promote abortion as a method of family planning" for women. Activities that are barred include providing referrals for abortion or offering advice or medical information on the procedure. And this is prohibited even if the group funds their communications around abortions with non-U.S. sources.

The funding ban was first imposed in 1984 by then-President Ronald Reagan and has been the subject of political ping-pong ever since. Each incoming Democratic president has lifted it. Each incoming Republican president who followed a Democrat has reenacted it.

But with Biden, there's a twist: Even if he repeals the ban as expected, there's reason to wonder how much things will actually change on the ground for the people on the receiving end of U.S. foreign aid money. Here are five reasons:

Biden will have a delayed start

Because Trump enacted the funding ban through executive order, technically Biden will be able to lift it by an executive order of his own upon taking office. But in practice, "it isn't as simple as signing a presidential memorandum repealing the policy," says Adrienne Lee of the advocacy group PAI. All the foreign aid groups eligible for U.S. funding will need to be notified that they can once again discuss abortion, she notes. Existing grant agreements and upcoming grant offers will need to be re-drafted. Lee says that means that, ideally, Biden's transition team would already have started working with staffers at relevant agencies such as USAID to lay the groundwork for those changes.

But abortion rights advocates are concerned none of that work will begin until Biden is inaugurated. For weeks after the election Trump's political appointee who heads the General Services Administration, Emily W. Murphy, refused to sign a letter authorizing Biden's team to formally begin the transition process. And even now that the transition is finally underway, based on various bureaucratic steps the Trump Administration took to entrench the funding ban shortly before the election, Lee says she expects the Trump Administration will still throw up obstacles. "Delaying coordination with the transition team delays all of this needed pre-work that minimizes the timeframe to get the global notification [of the ban's upcoming repeal] out," says Lee.

Trump's version of the ban was far more sweeping

While Biden's anticipated repeal of the funding ban will mark the third time a Democratic president has lifted it, the version of the ban that Biden will be reversing is far more sweeping. Previous Republican presidents had applied the ban only to funding of programs that offer family planning such as birth control. Trump extended it to the vast majority of global health programs — clinics that distribute HIV-AIDS drugs, for instance, or that treat malaria in children, or provide nutritional assistance.

The Kaiser Family Foundation has estimated that this broader ban affected $7.3 billion in U.S. foreign aid programming for the 2020 fiscal year — compared to about $600 million that would have been involved if Trump had kept the ban limited to family planning programs. To comply with the ban many aid groups terminated partnerships and staff or completely restructured their operations. So once Biden lifts the ban, that many more groups will face the choice of whether to revert to their modus operandi pre-ban, says Jennifer Kates, the foundation's senior vice president and director of global health and HIV policy.

"To what extent are there going to be some implementers who just say, 'You know what, I'm not going to go through that again. It's too challenging to have to do this back and forth.'" says Kates. "That's a question we don't know the answer to."

It's unclear how many groups changed their practices in the first place

Essentially aid groups fell into three buckets: Those that were not engaged in activities that were prohibited by the ban, and who therefore didn't need to make changes to their practices. Those who did have to modify their approach in order to be in compliance. And those who decided not to take U.S. funding rather than cease banned activities. But Kates says there is not comprehensive data on how many groups were in each category. This makes it impossible to say how many groups will resume banned practices once the ban is lifted.

That's not to say there isn't evidence that the ban had an impact. A September study in the journal Health Affairs found that of nearly 200 aid groups that receive money through the one of the affected U.S. funding streams — the President's Emergency Plan For AIDS Relief (PEPFAR) — 28% reported they had stopped or reduced at least one health service in response to the funding ban. The affected services included delivering information about sexual and reproductive health, pregnancy counseling, provision of contraceptives, and HIV testing and counseling. Similarly, a study last year in the medical journal The Lancet found that the funding ban actually increased the rate of abortions by about 40% in the countries studied — likely, said the authors, because it led to a reduction in access to contraception and a consequent rise in unwanted pregnancies.

Then there's the case of organizations that decided to forgo U.S. funding rather than comply with rules they deemed fundamentally at odds with their missions. A review released by the Department of State last summer found that only eight out of 1,340 primary funding recipients had taken that route — along with 47 groups that receive their funding as a pass-through from primary recipients.

But several advocacy groups opposed to the ban questioned how thorough the review was, noting that, among other concerns, the review only covered the first two years of the ban. Also, while the review found that in most cases the U.S. government was able to redirect the funding to an alternate group willing to abide by the ban, the review documented several cases where this was not possible, or took time, resulting in substantial reduction in the provision of vital health services such as distribution of HIV medication.

The U.S. could reduce its aid budget

One of the groups that opted to give up U.S. funding was MSI Reproductive Choices (formerly known as Marie Stopes International). Sarah Shaw, head of advocacy for MSI, says while she hopes the organization can once again count on U.S. funding, it's not a given. Shaw says she's mindful of periods during Bill Clinton's presidency when — notwithstanding the fact that he had lifted the funding ban on coming into office — "it was not such a great time for family planning because Congress just wasn't appropriating the funds."

Also adds, Shaw, "we've got a bear in mind that we're in the midst of a COVID pandemic which is putting tremendous domestic pressures on resources. We really are in uncharted waters."

Zara Ahmed, associate director of federal issues for the Guttmacher Institute, a research groups that backs abortion rights, is hoping Congress will actually devote more funding to family planning. She notes that in 1994, at the International Conference on Population and Development in Cairo, the 179 United Nations member states — including the U.S. — agreed by consensus on a plan for expanding access to reproductive healthcare.

'It calls for two-thirds of the cost to be born by developing countries," says Ahmed. "And then each donor country's fair share should be decided based on their economy's size."

According to that calculation, says Ahmed, the U.S. should be providing $1.66 billion per year. But to date, she says, "the U.S. has not lived up to that commitment, unfortunately."

Other countries have also fallen short, such that by the Guttmacher Institute's calculation "across 132 low- and middle-income countries around the world, there are more than 218 million women of reproductive age who have an unmet need for modern contraception."

Then again ... Congress could pass a law that ends the ping-pong game for good

Ahmed says another way that Congress could tip the scales is if it passes a pending bill that would prevent future presidents from re-enacting the funding ban. This could offer foreign aid groups that want to start offering reproductive services again the reassurance that they will not risk another costly round of disruption if a Republican wins the presidency four years from now.

Two Republican senators have already co-sponsored the legislation — Susan Collins and Lisa Murkowski — suggesting that there's a chance it could get adopted regardless of which party ends up controlling the Senate.

Yet Ahmed is reluctant to predict that far ahead. "I think that we could speculate in a lot of different ways about what might happen with the Senate, what bills they might prioritize. There's definitely a long way to go."

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