Trump "Global Gag Rule" as to Abortion Likely Doesn't Violate the First Amendment

Friday, President Trump reinstated his 2017 reinstatement of the 2001 President G.W. Bush reinstatement of President Reagan’s “Mexico City Policy” (also called by some the “Global Gag Rule”) which provides, in relevant part:

The Mexico City Policy announced by President Reagan in 1984 required foreign nongovernmental organizations to agree as a condition of their receipt of Federal funds for family planning activities that such organizations would neither perform nor actively promote abortion as a method of family planning in other nations. This policy was in effect until it was rescinded on January 22, 1993.

It is my conviction that taxpayer funds appropriated pursuant to the Foreign Assistance Act should not be given to foreign nongovernmental organizations that perform abortions or actively promote abortion as a method of family planning in other nations….

The policy restricts the foreign grantees’ speech (actively promoting abortion, which includes public advocacy and lobbying of foreign governments) as well as their conduct. Does this violate the First Amendment?

No, the Second Circuit federal court of appeals held in 1990; and it then followed that decision in 2002, in an opinion by then-Judge Sonia Sotomayor:

[W]hatever one might think of the Mexico City Policy, “the wisdom of, and motivation behind, this policy are not justiciable issues,” and [this Court has] found the restrictions to be rationally related to the “otherwise nonjusticiable decision limiting the class of beneficiaries of foreign aid.”

And in Agency for Int’l Dev. v. Alliance for Open Society Int’l (II) (2020), the Supreme Court recognized (though this time with Justice Sotomayor joining Justices Breyer’s dissent, together with Justice Ginsburg) that “foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution,” including free speech rights. This means, the Court said, “As foreign organizations operating abroad, plaintiffs’ foreign affiliates possess no rights under the First Amendment.” The Court there upheld a condition that foreign recipients of U.S. aid must take a public stand opposing prostitution, but the analysis would be the same for a condition that they must not make statements promoting abortion.

Now I want to be a bit tentative here, because it’s possible that I’m misunderstanding some way in which the now-reinstated Mexico City Policy operates. (If, for instance, it sufficiently affected domestic organizations’ speech in the U.S., it might be unconstitutional, see Agency for Int’l Dev. v. Alliance for Open Society Int’l (I) (2013).) But as I understand things, the funding condition applies only to foreign organizations operating abroad, and thus doesn’t violate the First Amendment. (Whether the policy is a good idea is an entirely separate question, on which I do not opine here.)

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