Abortion Funding Restrictions in Foreign Assistance Legislation

Abortion Funding Restrictions in Foreign Assistance Legislation

Updated April 12, 2024
Abortion Funding Restrictions in Foreign Assistance Legislation
For over five decades, Congress has enacted abortion-
Abortion restrictions in foreign assistance are part of
related funding restrictions in U.S. foreign assistance
broader U.S. efforts to prohibit federal funding for
legislation. Many of the restrictions were adopted against
abortions. In addition to legislative restrictions on U.S.
the backdrop of the Supreme Court’s 1973 Roe v. Wade
foreign assistance funding of abortions, Presidents have
ruling, which held that the Constitution protected a
periodically, since 1985, used executive authorities to
woman’s decision to terminate her pregnancy. Foremost
prohibit abortion funding. For example, the “Mexico City
among these is the “Helms amendment,” first enacted in
Policy,” as it is often called, requires foreign
1973, which requires that certain foreign assistance funds
nongovernmental organizations (NGOs) that receive U.S.
may not be used to pay for the performance of abortion.
federal funds to certify that they do not perform or actively
Over the years, Congress has considered bills to amend,
promote abortion as a method of family planning, even
expand, or overturn some of these restrictions. Some
using non-U.S. funds. The policy is typically instated by
Members have demonstrated an increased interest in these
Republican Presidents and rescinded by Democratic
restrictions and their impacts in the wake of the Supreme
Presidents. (See CRS Report R41360, Abortion and Family
Court’s 2022 ruling Dobbs v. Jackson Women’s Health
Planning-Related Provisions in U.S. Foreign Assistance
Organization, which broadly overruled Roe.
Law and Policy.)
Background and Legislative Vehicles
Domestically, the “Hyde amendment” (named for
Debates over abortion in U.S. foreign assistance often
Representative Henry Hyde), which is included in annual
reflect broader domestic disagreements on abortion,
Department of Labor-Health and Human Services (HHS)
including the federal government’s role, if any, in funding
appropriations acts, prohibits HHS from using appropriated
abortion. Foreign assistance restrictions on abortion are
funds to pay for abortions, except when a pregnancy is the
generally included in two legislative vehicles: (1)
result of rape or incest, or the mother’s life would be
authorization legislation, mainly the Foreign Assistance
endangered if an abortion were not performed. In addition,
Act of 1961 (FAA) (P.L. 87-195; 22 U.S.C. 2151 et seq.);
the Department of Defense is prohibited from using funds
and (2) appropriations legislation, such as the annual
or facilities to perform an abortion, subject to similar
Department of State, Foreign Operations, and Related
exceptions. (See CRS In Focus IF12167, The Hyde
Programs (SFOPS) appropriations acts (see text box).
Amendment: An Overview, and CRS Insight IN11960,
FY2023 NDAA: Military Abortion Policies.)
The FAA and SFOPS Appropriations Acts
Overview of Key Restrictions
The FAA is the foundation of permanent foreign assistance
Helms Amendment. The Helms amendment, introduced by
authorization law. It is divided into several “parts” that
Senator Jesse Helms in 1973, is included in both
authorize different types of foreign assistance, including
authorization and appropriations legislation. In the FAA,
development assistance (part I); military and security
the provision, at Section 104(f) (22 U.S.C. 2151b(f)), states
assistance (part II); general, administrative, and miscellaneous
that none of the funds to carry out part I of the act
provisions (part III); the Enterprise for the Americas Initiative
(development assistance) “may be used to pay for the
(part IV); and debt reduction for developing countries with
performance of abortions as a method of family planning or
tropical forests (part V). Some legislative restrictions on
to motivate or coerce any person to practice abortions.”
abortion apply specifically to programs authorized under part
Since FY1980, the Helms amendment has also been stated
1. Congress is required to enact both an authorization and
in most of the annual SFOPS bills. In the FY2024 SFOPS
appropriation in order to fund foreign assistance programs
Act (Division F of P.L. 118-47), Helms language is
(22 U.S.C. 2412). Most foreign assistance is appropriated in
included in Section 7018 to apply to all activities in the act
Titles 3 through 6 of annual SFOPS legislation.
authorized under part I of the FAA. Similar language is
found under the Global Health Programs heading in Title
These provisions are often controversial. At times, the
III, Bilateral Economic Assistance, and applies to all
presence (or absence) of abortion restrictions in legislation
funding provided in the act.
has played a role in delaying or halting the enactment of
certain bills, including annual appropriations acts. Some
Peace Corps. Since FY1979, annual SFOPS appropriations
proposed legislation addressing global women’s issues has
have included an abortion restriction on Peace Corps
similarly been affected, including bills on violence against
funding due to concerns that U.S. funding might be used to
women, and on women’s global development and
provide abortions for Peace Corps volunteers. The
prosperity.
restriction states that “none of the funds appropriated under
this heading shall be used to pay for abortions.” As in some
previous fiscal years, the FY2024 SFOPS Act includes
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Abortion Funding Restrictions in Foreign Assistance Legislation
exceptions to the abortion funding prohibition when a
Programs Appropriations Act, seeks to clarify the term
pregnancy is the result of rape or incest, or when a mother’s
“motivate” in the Helms amendment. Some version of the
life would be endangered if an abortion were not
Leahy amendment has been included in SFOPS acts since
performed. (See CRS Report RS21168, The Peace Corps:
FY1995, including FY2024. It applies to all enacted
Overview and Issues.)
authorization and SFOPS appropriations. The FY2024
SFOPS bill states, “the term ‘motivate,’ as it relates to
Biden Amendment. In 1981, Congress amended the FAA
family planning assistance, shall not be construed to
to prohibit certain foreign assistance for biomedical
prohibit the provision, consistent with local law, of
research related to abortion or involuntary sterilization (see
information or counseling about all pregnancy options.”
22 U.S.C. §2151b(f)(3)). The amendment, named after
then-Senator Joseph Biden, states, “None of the funds made
Selected Congressional Considerations
available to carry out this part may be used to pay for any
Application of assistance. When considering abortion
biomedical research which relates, in whole or in part, to
funding restrictions, Members may take into account the
methods of, or the performance of, abortions or involuntary
types of foreign assistance to which certain provisions
sterilization as a means of family planning.” It is also
apply. For example, the Helms amendment is permanently
included in appropriations legislation, most recently Section
authorized in the FAA and applies only to part I. To cover
7018 of the FY2024 SFOPS Act. In both laws the provision
additional categories of foreign aid, Helms-like language is
applies to activities authorized by part I of the FAA.
included in annual SFOPS acts, and applied to all funding
in the act. Conversely, some restrictions are included in
Siljander Amendment. In 1981, Congress enacted an
annual SFOPS rather than authorization legislation and may
amendment, named after Representative Mark Siljander, to
only apply to certain entities or parts of the act.
the FY1982 Foreign Assistance and Related Programs
Appropriations Act specifying that no U.S. funds may be
Oversight of executive branch. Some Members may
used to lobby for abortion. Congress subsequently modified
consider or debate executive branch interpretation and/or
the amendment to state that funds may not be used to
implementation of legislative restrictions on abortion,
“lobby for or against abortion” (emphasis added). The
including the extent to which, if any, abortion is equated
amendment has been included in subsequent SFOPS
with family planning and reproductive health (FP/RH)
appropriations acts, including under the Global Health
activities. For example, in August 2020, 60 Members wrote
Programs heading in the FY2024 SFOPS Act. It applies to
to the Trump Administration urging U.S. diplomats to insist
all programs and activities appropriated under the act.
that international agreements and multilateral assistance not
include abortion “under the guise of sexual and
Presidential Certification of Restrictions. In 1985,
reproductive health,” an action that they deemed “necessary
Congress included a provision in the FY1986 Foreign
to enforce the Siljander amendment.” In August 2022, 76
Assistance and Related Programs Appropriations Act
Members wrote a letter requesting that the Biden
requiring that no funds made available under part I of the
Administration “communicate and implement Helms
FAA may be obligated or expended for any country or
Amendment exceptions to countries and organizations that
organization if the President certifies that the use of these
receive U.S. foreign assistance.” (Since Helms was enacted,
funds would violate any of the provisions related to
the executive branch has not appeared to interpret any
abortions (e.g., the Helms and Biden amendments).
exceptions. Similar letters were written to President Obama
Subsequent SFOPS acts, including Section 7018 of the
in 2011 and 2015.) Members have also asked the
FY2024 SFOPS Act, included this requirement. It applies to
Government Accountability Office (GAO) to investigate
all activities authorized under part I of the FAA.
possible violations of restrictions (e.g., GAO Report 12-35
on the Siljander amendment) and enacted related reporting
Kemp-Kasten Amendment. Congress enacted the Kemp-
requirements (e.g., SFOPS acts since FY2019 require the
Kasten amendment in the FY1985 Supplemental
President to provide written justifications for Kemp-Kasten
Appropriations Act. The measure, introduced by Senator
determinations in a certain timeframe).
Bob Kasten and Representative Jack Kemp, states that no
funds under the act “may be made available to any
Possible impact on U.S. global health programs. Some
organization or program which, as determined by the
Members have debated the impact, if any, that existing
President, supports or participates in the management of a
abortion funding restrictions might have on broader U.S.
program of coercive abortion or involuntary sterilization.”
global health programming, including FP/RH activities
It has been included in annual SFOPS since FY1985 due to
funded by the U.S. Agency for International Development
concerns that the United Nations Population Fund
(USAID). Some advocates of abortion restrictions contend
(UNFPA) program in China is engaged in or funding
that the full range of restrictions are necessary to ensure that
abortion or coercive family planning programs. Kemp-
U.S. taxpayer dollars are not used to pay for abortions,
Kasten could apply to any entity; determinations have been
while some women’s health advocates argue that such
made only regarding UNFPA. (See CRS Report R46962,
restrictions are duplicative, sometimes unclear, and may
The United Nations Population Fund (UNFPA):
deter USAID global health partners from providing legal
Background and U.S. Funding.)
FP/RH services (such as post-abortion care or counseling
on family planning options) due to concerns they might lose
Leahy Amendment. The Leahy amendment, introduced by
USAID funding or because they lack sufficient guidance on
Senator Patrick Leahy in 1994 as part of the FY1995
how to comply with the restrictions.
Foreign Operations, Export Financing, and Related
Luisa Blanchfield, Specialist in International Relations
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Abortion Funding Restrictions in Foreign Assistance Legislation

IF12235

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https://crsreports.congress.gov | IF12235 · VERSION 5 · UPDATED