Rights Wire

The Human Rights Blog of the Leitner Center for International Law and Justice

Reinterpreting the Helms Amendment

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By Shruti Banerjee

The United States government is the single largest donor of humanitarian aid and reproductive health programs globally,  but this significant contribution comes with strict legal restrictions that ban funding for abortion services and exacerbate the physical and psychological trauma endured by rape victims around the world. Abortion is often the safest option for many victims of rape, and necessary for children raped during war to prevent extended and intensified physical and mental torture caused by dangerous pregnancies and fatal medical complications.

The Global Justice Center (GJC)  has been advocating for the U.S. federal government and U.N. bodies to re-interpret legal restrictions placed on humanitarian aid. As a Legal Intern at GJC this summer, I helped draft a submission to the United Nations Committee against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) to urge the United States to lift restrictions on humanitarian aid. We argued that U.S. legal restrictions that prevent war rape victims from receiving full medical care and abortion services worldwide, as well as censorship of abortion-related speech, are incompliant with a State’s obligations under CAT, particularly Articles  1, 2, 14 and 16 . By inhibiting rape victims from receiving abortions that may save their lives and prevent prolonged physical and psychological torture, the U.S. is violating the object and purpose of CAT and must reform domestic policy to conform with its international treaty obligations. The CAT Committee will review the United States in November 2016, and hopefully, they will push the U.S. to change their domestic policy to ensure that rape victims are not forced to endure further pain and suffering from dangerous child birth or seeking unsafe abortions. This article will summarize and discuss the issues raised by the Global Justice Center’s most recent submission to CAT.

RAPE AND FORCED IMPREGNATION DURING ARMED CONFLICT

As cited in GJC’s submission to CAT, there are countless examples, including Bosnia , Rwanda, and Boko Haram in Nigeria that prove rape and forced impregnation during armed conflict is a prevalent issue that the international community needs to address immediately. The United Nations Security Council has acknowledged that during armed conflict and wars, sexual  violence is systematically used against civilians to debilitate, control, and even alter the ethnic compositions of entire populations.  The risk of maternal mortality is drastically increased when a woman or girl is raped during conflict and forcibly impregnated, especially when her physical trauma is combined with the testing conditions imposed by war (i.e. malnutrition, anemia, stress, infection and disease).  For children who are raped or gang raped during war, pregnancy is extremely dangerous and can cause fatal injuries,  such as a ruptured uterus or traumatic fistulas. Studies have also found that in certain conditions, childbirth is 14 times more likely to lead to death than a safe abortion.

Preventing war rape victims from obtaining abortions can also result in severe psychological trauma. As cited in GJC’s submission to CAT, forced impregnation caused by rape has been found to “prolong the perpetrator’s intrusion, often causing great anguish and shame to the victim.” Rape victims suffer from extra mental distress and fear from the “pain of unsafe treatment with uncertain outcomes, no proper aftercare and the possibility of being imprisoned if found out” when they are denied access to safe abortion services and are forced to have illegal and unsanitary abortions. In certain societies, war rapes resulting in pregnancies can also carry significant social consequences, particularly in communities where  there is a cultural stigma attached to women who had sex before marriage, even in instances of rape.  Many victims have been stigmatized, shamed and excommunicated from their homes due to being raped and bearing the child of their perpetrator,  causing further mental anguish that could have been prevented if they had access to full medical care and safe abortions.

 

US REGULATIONS THAT PREVENT VICTIMS OF WAR RAPE FROM RECEIVING NECESSARY ABORTIONS

GJC identified the major legal hurdle to providing war rape victims with abortions to be the U.S. government’s overly narrow interpretation of The Helms Amendment. The Helms Amendment to the Foreign Assistance Act of 1961 was enacted by Congress, but it has primarily been interpreted and implemented by U.S. agencies administering foreign aid, including the State Department and United States Agency for International Development (USAID).  The Helms Amendment states that “[n]one of the funds made available to carry this part [Part 1 of the Foreign Assistance Act] may be used to pay for the performance of abortions as a method of family planning or to motivate or coerce any person to practice abortions.” While “abortion as a method of family planning” is customarily interpreted to allow funding for abortions in cases of rape, incest or maternal life endangerment, USAID and the State Department currently interpret these restrictions as a total ban on funding for abortion services, without any exceptions for rape and life endangerment.

U.S. funding restrictions also curtail abortion-related speech and medical information for these victims. Specifically, the term “motivate,” in the Helms Amendment, is interpreted by the U.S. government to prohibit essentially all open discussion about abortion and applies to “information, education, training or communication programs” related to abortion.  Additionally, the use of foreign assistance funding to lobby for or against abortion is prohibited by The Siljander Amendment.  These restrictions on abortion-related speech prevent the beneficiaries of U.S. aid, including war rape victims, from being fully informed of their medical options and have resulted in a complete ban on abortion-related services and proper medical information. These legal restrictions apply to the entirety of U.S. foreign assistance,  including aid given to United Nations projects and for war rape survivors in countries where many victims rely on foreign aid to provide them with health care that is otherwise unavailable.

 

GROWING CONCERN OVER U.S. LEGAL RESTRICTIONS AND THE NEED FOR CHANGE

The United States’ imposition of abortion restrictions on medical care for women and girls raped in war has caused serious concern in many countries.  The European Union passed a budget in 2016 that specified that their humanitarian aid would not be restricted by laws from other donor states. This was in direct response to concerns over U.S. legal restrictions for abortion services on member state aid.  Several countries have recommended that the U.S. change their policy that bans funding for abortion services,  but despite growing international concern,  the U.S. anti-abortion policy remains the dominant medical protocol for victims of rape worldwide.  This makes it exceedingly difficult for rape victims to receive an abortion, even in instances where the pregnancy threatens the life of the mother.

The Democratic Party in the United States has included in its most recent platform to push to repeal the Helms Amendment, or “Global Gag Rule” on abortion. Internal pressure from domestic politicians and pressure from the international community will hopefully result in a reinterpretation of the Helms Amendment, or repealing it entirely, to allow victims of rape to have access to safe and legal abortions.

Shruti Banerjee is a 2016 Leitner Center Summer Fellow. She is interning with the Global Justice Center in New York.

Photo credit: Albert Gonzalez Farran – UNAMID/Creative Commons

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

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Author: leitnercenter

Rights Wire is the human rights blog of the Leitner Center for International Law and Justice at Fordham Law School.

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