Emily Gillingham, Resident Blogger (’15, Michigan State University College of Law)
Let’s talk about the late Senator Jesse Helms. Senator Helms was the national treasure*who proposed at least ten constitutional amendments to ban abortion, voted against a Clinton nominee for assistant housing secretary “because she’s a damn lesbian,” who won reelection with racism, and who pulled a Todd Akin before it was cool when he “told an abortion-rights advocate that he would not allow an exception for rape in his antiabortion legislation because a rape victim could not become pregnant.” He was basically your racist relative at Thanksgiving who talks about “feminazis.”
Enter the Foreign Assistance Act of 1961. This act created and funded USAID, with the goal of promoting ‘social and economic development’ abroad. When the Act was amended in 1973, Senator Helms’ amendment was included, which reads: “No foreign assistance funds may be used to pay for the performance of abortion as a method of family planning or to motivate or coerce any person to practice abortions.” Those of you playing along at home might be wondering what the issue is, since “family planning” is defined by the World Health Organization as including “use of contraceptive methods and the treatment of involuntary infertility.” The most logical interpretation of the phrase is that it covers planning to prevent pregnancy in the first place. After all, no one is advocating for abortion to be used as first-line contraception or for coerced abortions. It turns out that the Foreign Assistance Act doesn’t define “family planning” at all, so USAID decided to interpret the Helms Amendment as meaning that “recipients of U.S. family planning assistance [are] legally prohibited from supporting abortion as a method of family planning using U.S. funds.” In practice, it has operated as a total ban on funding abortion. Even in cases of incest, rape, and danger to the woman’s life. Even in parts of the world where rape is used as a tactic of war. Even where USAID is expending resources to help women who were injured or sickened by botched abortions because they cannot access safe, sanitary procedures.
Is this an interpretation that Jesse Helms probably loved? Yes. Does the 1973 Senate vote of 50-48, primarily along party lines, suggest that this was the interpretation all along and the Democrats were not pleased? Possibly. But if USAID’s interpretation is what Congress intended, wouldn’t the statute have omitted “family planning” and instead read, ‘No foreign assistance funds may be used to pay for the performance of abortion or to motivate or coerce any person to practice abortions’?
Legislative action to change or omit the Helms Amendment has gotten nowhere. Perhaps our efforts would be more impactful if we pushed USAID to interpret the Helms Amendment in the most obvious way- as barring use of USAID funds to promote abortion as first line birth control. Intuitively, if the U.S. is committed to helping the people it serves abroad, it should do what is best for women’s health- and that sometimes includes abortion.
*NOT a national treasure