U.S. International Family Planning Programs: Issues for Congress
Released: 2016-01-12T00:00:00

Setting the Context: Overview of the U.S. Family Planning Debate

Throughout the U.S. debate on international family planning assistance—at times the most controversial foreign aid issue considered by Congress—the cornerstone of U.S. policy has remained a commitment to funding international family planning programs based on principles of voluntarism and informed choice that give participants access to information and services on a broad range of family planning methods. At present, the U.S. Agency for International Development (USAID) maintains family planning projects in nearly 40 developing countries that include counseling and services, training of health workers, contraceptive commodities and distribution, financial management, policy dialogue, data collection, monitoring and evaluation, public education and marketing, and biomedical and contraceptive research and development. USAID applies a broad reproductive health approach to its family planning programs, increasingly integrating it with other interventions in maternal and child health, the enhancement of the status of women, and HIV treatment and prevention. In addition to these bilateral activities, the United States has supported multilateral family planning efforts through annual contributions to the U.N. Population Fund (UNFPA).

Family planning assistance has become a source of substantial contention among U.S. policymakers, centering on two key issues:

setting appropriate and effective funding levels for family planning assistance, and the use of federal funds to perform or promote abortions abroad and how to address possible coercion in some national family planning programs, especially in China.

Arguably, the most bitter controversies in U.S. family planning policy have erupted over abortion—in particular, the degree to which legal abortions and coercive programs occur in other countries' family planning programs, the extent to which U.S. funds should be granted to or withheld from such countries and organizations that administer these programs, and the effect that withholding U.S. funds might have on global population growth and access to voluntary family planning services in developing nations. These issues stem from the contentious domestic debate over U.S. domestic abortion policy that has continued since the Supreme Court's 1973 Roe v. Wade decision holding that the Constitution protects a woman's decision whether to terminate her pregnancy. In every Congress since 1973, abortion opponents have introduced constitutional amendments or legislation that would prohibit abortions supported with U.S. foreign assistance funds. As an alternative, Congress has attached numerous provisions to annual appropriation measures banning the use of federal funds for performing legal abortions.

Much of this debate has focused on domestic spending bills, especially restrictions on abortions under the Medicaid program in the Labor/Health and Human Services appropriation legislation. However, the controversy spilled over into U.S. foreign aid policy when Congress approved an amendment to the Foreign Assistance Act of 1961 in late 1973 introduced by then-Senator Jesse Helms (§104(f)). The provision, widely referred to as the "Helms amendment," prohibits the use of foreign development assistance to (1) pay for the performance of abortions or involuntary sterilizations, (2) motivate or coerce any person to practice abortions, or (3) coerce or provide persons with any financial incentive to undergo sterilizations. Since 1981, Congress has enacted the Helms amendment, as well as other family planning and abortion-related restrictions, in annual Foreign Operations appropriation bills.

In the mid-1980s, debate over international abortion restrictions reached the executive branch. In 1984, at the second International Conference on Population held in Mexico City, Mexico, President Reagan issued what has become known as the "Mexico City policy," which required foreign non-governmental organizations (NGOs) receiving USAID family planning assistance to certify that they would not perform or actively promote abortion as a method of family planning, even if such activities were undertaken with non-U.S. funds. In the intervening years, the Mexico City policy has been rescinded and reissued by various Administrations. Most recently, it was rescinded by President Barack Obama in January 2009.

In 1985, Congress adopted the "Kemp-Kasten" amendment due to the concerns of President Reagan and some Members of Congress that the U.N. Population Fund's (UNFPA's) program in China engaged in or provided funding for abortion or coercive family planning programs. Kemp-Kasten prohibits U.S. assistance to organizations that, as determined by the President, support or participate in the management of coercive family planning programs.

Demonstrating the politicized nature of the international family planning debate, presidential determinations regarding the Mexico City Policy and UNFPA's activities in China have generally been divided along party lines. Presidents Reagan, George Bush, and George W. Bush prohibited U.S. contributions to UNFPA and supported the Mexico City Policy, while Presidents Clinton and Obama have supported U.S. funding of UNFPA and overturned the Mexico City Policy.

U.S. Policy: Mexico City Policy and the Kemp-Kasten Amendment

For the past several decades, both congressional actions and administration directives have restricted U.S. population assistance in various ways. Such restrictions are found in provisions in the Foreign Assistance Act of 1961, as well as executive regulations and appropriation provisions prohibiting indirect support for coercive family planning (specifically in China) and abortion activities related to the work of international and foreign NGOs. This section addresses two key actions that were initiated in the mid-1980s and have remained particularly controversial in the U.S. family planning debate: the Mexico City policy involving funding for foreign non-governmental organizations, and "Kemp-Kasten" restrictions on funding for the U.N. Population Fund (UNFPA) because of its activities in China.

The Mexico City Policy

In 1984, the Reagan Administration announced that it would restrict U.S. population aid by terminating USAID support for any foreign NGOs (but not national governments) that were involved in voluntary abortion activities, even if such activities were undertaken with non-U.S. funds. U.S. officials presented the revised policy at the 2 nd U.N. International Conference on Population in Mexico City in 1984. Thereafter, it become known as the "Mexico City policy." During the George H. W. Bush Administration, efforts were made in Congress to overturn the Mexico City policy and rely on existing congressional restrictions in the Foreign Assistance Act of 1961 banning direct U.S. funding of abortions and coerced sterilizations. Provisions adopted by the House and/or Senate that would have reversed the policy, however, were removed from legislation under threat of a presidential veto.

Critics charge that the Mexico City policy is a violation of free speech and the rights of women to choose to have an abortion in countries where it is legal. They contend that the policy undermines family planning and maternal health care services offered in developing nations and may actually contribute to the rise in the number of abortions performed, including some that are unsafe and illegal. They further emphasize that family planning organizations may cut back on services because they are unsure of the full implications of the restrictions and do not want to risk USAID funding. Opponents also believe that the conditions of the Mexico City policy undermine relations between the U.S. government and foreign NGOs and multilateral groups, creating a situation in which the United States challenges their right to determine how to spend their own money and imposes a so-called gag order on their ability to promote changes to abortion laws and regulations in developing nations. The latter, these critics note, would be unconstitutional if applied to American groups working in the United States.

Rescinded by the Bill Clinton Administration (1993)

President Clinton, in a January 22, 1993, memo to USAID, lifted restrictions imposed by the Reagan and Bush Administrations on grants to family planning foreign NGOs—in effect ending the Mexico City policy. The memo noted that the policy had extended beyond restrictions in the Foreign Assistance Act and was not mandated by law. In his remarks, President Clinton explained that this step would "reverse a policy that has seriously undermined much needed efforts to promote safe and effective family planning programs abroad, and will allow us to once again provide leadership in helping to stabilize world population."

Restored by the George W. Bush Administration (2001)

On January 22, 2001, President George W. Bush revoked the Clinton Administration memorandum and restored in full the terms of the Mexico City restrictions. As was the case during the 1980s and early 1990s when the Mexico City policy was in place, foreign NGOs, as a condition for receipt of U.S. family planning assistance, would need to certify that they would not perform or actively promote abortions as a method of family planning in other countries. President Bush, in announcing the policy change, noted that American taxpayer funds should not be used to pay for abortions or to advocate or actively promote abortion. Supporters of the certification requirement argue that even though permanent law bans USAID funds from being used to perform abortions, money is fungible; organizations receiving American-taxpayer funding can use USAID resources for family planning activities while diverting money raised from other sources to perform abortions or lobby to change abortion laws and regulations. The certification process, they contend, stops the fungibility "loophole."

Rescinded by the Obama Administration (2009)

On January 23, 2009, President Barack Obama issued a presidential memorandum to the Secretary of State and USAID Administrator revoking the Mexico City policy and Bush Administration conditions on voluntary population planning provided by the State Department. The memorandum stated

These excessively broad conditions on grants and assistance awards are unwarranted. Moreover, they have undermined efforts to promote safe and effective voluntary family planning programs in foreign nations.

President Obama also directed the Secretary of State and USAID Administrator to waive the conditions set forth in these policies and to notify current grantees as soon as possible. He further directed the State Department and USAID to cease imposing such conditions on any future grants.

Restrictions on U.N. Population Fund (UNFPA) Funding: The "Kemp-Kasten Amendment"

At the 1984 Mexico City Conference, the Reagan Administration instituted a new policy relating to UNFPA. The Administration required that the organization provide "concrete assurances that [it] is not engaged in, or does not provide funding for, abortion or coercive family planning programs." It was particularly concerned with UNFPA's activities in China, where, according to Administration officials, there was evidence of coercive family planning practices.

Subsequently, Congress legislated a more restrictive UNFPA policy—believed to be aimed at coercive Chinese family planning programs and UNFPA's continuing operations in the country—by enacting the "Kemp-Kasten amendment" in the FY1985 Supplemental Appropriations Act ( P.L. 99-88 ). The amendment prohibited the use of appropriated funds for any organization or program, as determined by the President, found to be supporting or participating "in the management" of a program of coercive abortion or involuntary sterilization. Following enactment of P.L. 99-88 , USAID announced that $10 million of $46 million that had been directed for UNFPA during FY1985 would be redirected to other programs due to concerns regarding UNFPA's activities in China, and later said that the United States would not contribute to UNFPA at all in 1986. Most of the $25 million that was originally allocated for UNFPA was spent on other international family planning activities. Even though this pattern to redirect UNFPA transfers to other population assistance programs continued, critics of the Kemp-Kasten amendment and the President's determination to suspend contributions asserted that UNFPA was the world's most effective family planning organization, and that the quality of services provided in developing nations outside of China suffered due to the unwillingness of the United States to support them. At the time of suspension, U.S. payments represented nearly one-third of UNFPA's annual budget. From 1986 through 1993, no U.S. contributions went to UNFPA.

The Clinton Administration lifted the ban on UNFPA contributions, making available $14.5 million in FY1993 but stipulating that funds could not be used in China. Congressional critics of China's family planning practices attempted unsuccessfully to attach provisions to various foreign aid bills banning U.S. contributions unless UNFPA withdrew from China or the President could certify that China no longer maintained a coercive family planning program. While the United States continued to support UNFPA during the next eight years (except for FY1999), Congress attached restrictions in appropriation measures that in most cases reduced the U.S. contribution by the proportionate share of UNFPA funds spent on China.

George W. Bush Administration Determinations Under Kemp-Kasten

For FY2002, Congress provided not more than $34 million for UNFPA. But in mid-January 2002, the Bush Administration placed a hold on U.S. contributions to UNFPA, pending a review of the organization's program in China. The White House said it initiated the review because of new evidence that coercive practices continued in counties where UNFPA concentrated its programs.

From FY2002 through FY2008, the Bush Administration determined that UNFPA was ineligible for U.S. funding under the Kemp-Kasten amendment. Since the 2002 determination, the Administration transferred $34 million from each of FY2002, FY2004, and FY2005 appropriations, and $25 million from FY2003 funds that would have otherwise been provided to UNFPA to support bilateral family planning programs and activities combating human trafficking and prostitution. Approximately $22.5 million in unused UNFPA funds from FY2006 was transferred to the International Organizations and Program (IOP) account.

State Department Team Assesses UNFPA Program in China

While most observers agree that coercive family planning practices continue in China, differences remain over the extent, if any, to which UNFPA is involved in involuntary activities and whether UNFPA should operate at all in a country where such conditions exist. Given conflicting reports, a State Department investigative team visited China in May 2002 and reported a series of findings and recommendations. The team found no evidence that UNFPA "has knowingly supported or participated in the management of a program of coercive abortion or involuntary sterilization" in China, and recommended the United States release not more than $34 million of previously appropriated funds to UNFPA.

Nevertheless, on July 22, 2002, Secretary of State Powell, to whom President Bush had delegated the decision, announced that UNFPA was in violation of Kemp-Kasten and ineligible for U.S. funding. The State Department's analysis of the Secretary's determination found that even though UNFPA did not "knowingly" support or participate in a coercive practice, that alone would not preclude the application of Kemp-Kasten. Instead, a finding that the recipient of U.S. funds—in this case UNFPA—simply supports or participates in such a program, whether knowingly or unknowingly, would trigger the restriction. The assessment team found that the Chinese government imposed fines and penalties on families ("social compensation fees") that have children exceeding the number approved by the government. The department further noted that UNFPA had funded computers and data-processing equipment that had helped strengthen the management of the Chinese State Family Planning Commission. Beyond the legitimate uses of these and other items financed by UNFPA, such equipment facilitated, in the view of the State Department, China's ability to impose social compensation fees or perform coercive abortions. The State Department analysis concluded that UNFPA's involvement in China's family planning program "allows the Chinese government to implement more effectively its program of coercive abortion."

On September 17, 2005, the State Department stated that the United States had been urging UNFPA and China to modify the organization's program in a manner that would permit U.S. support to resume, but that no key changes had occurred that would allow a resumption of U.S. funding under the conditions of the Kemp-Kasten provision. Subsequently, on October 18 of that year, USAID notified Congress that the reprogrammed UNFPA set-aside would be made available to expand family planning and reproductive health programs in 14 other countries.

Bush Administration Response to the New UNFPA China Program

The September 17 announcement followed a June 22, 2005, UNFPA Executive Board meeting to consider UNFPA's new five-year, $27 million program for China. At the meeting, Kelly Ryan, Deputy Assistant Secretary of State for the Bureau of Population, Refugees and Migration, argued that UNFPA should end its operations in China because of the coercive nature of China's family planning programs. Two days later, State Department spokesperson Sean McCormick issued a statement saying the United States was "disappointed" that UNFPA had decided to continue financial and technical support to the Chinese birth limitation program. He noted that U.S. opposition was not aimed at UNFPA but was a "matter of principle," based on strong American opposition to "human rights abuses associated with coercive birth limitation regimes." He acknowledged that UNFPA does not approve of coercive policies but that the organization's continued presence in China offered a "seal of approval" for Chinese policies.

Opposition to the Bush Administration Determination

Critics of the Bush Administration's decision opposed it for a number of reasons. They argued that access to voluntary family planning programs by persons in around 140 countries would be reduced, undermining the health of women and children, increasing unwanted pregnancies, and increasing the likelihood of higher numbers of abortions. Still other critics were concerned about the possible application of the Administration's interpretation of Kemp-Kasten to other international organizations operating in China and to which the United States contributes—for example, the U.N. Children's Fund (UNICEF), the World Health Organization, and the U.N. Development Program.

Obama Administration Determinations Under Kemp-Kasten

The Obama Administration has expressed its support for U.S. funding of UNFPA. In a January 2009 memorandum rescinding the Mexico City policy, President Obama indicated that his Administration would fund UNFPA. In March 2009, a State Department spokesperson confirmed that the U.S. government would contribute $50 million to UNFPA as provided by the Omnibus Appropriations Act, 2009 ( P.L. 111-8 ). This decision, according to Administration officials, highlighted the President's "strong commitment" to international family planning, women's health, and global development.

U.S. Activities and Funding Levels

USAID is the lead U.S. agency addressing voluntary family planning and reproductive health and has been the largest international family planning donor for over 40 years. Since 1965, it has obligated over $13.8 billion in assistance for international family planning activities. Its current family planning activities span nearly 40 countries and focus on seven key technical priorities:

healthy timing and spacing of pregnancy policies that encourage healthy birth spacing to maximize health impact of family planning programs; community-based approaches , including using front-line community health workers to bring services, information, and referrals to women who are not easily reached through fixed facilities; contraceptive security to ensure that there are adequate stocks of contraceptives for communities; access to long-active and permanent family planning method s , such as intrauterine devices, implants, and sterilization; integrati ng with HIV programs to ensure that HIV positive men and women have access to family planning information and services; and integrating with maternal and child health (MCH) programs , particularly during the post-partum period for women, when demand for pregnancy spacing is the highest.

In many years, and especially over the past two decades, the level of funding for family planning and reproductive health activities has been controversial, and at times, linked directly with differences concerning Mexico City policy restrictions, UNFPA funding, and abortion. Until FY1996, Congress generally supported higher funding levels for population aid than proposed by the President, especially during the Reagan and Bush Administrations. During the balance of the Clinton Administration, however, Congress cut and placed restrictions on bilateral funding (see Table 1 ). In some years, bilateral family planning, reproductive health, and maternal health levels received additional resources when UNFPA-earmarked funds were reprogrammed for bilateral activities after UNFPA was determined to be ineligible for U.S. support under the Kemp-Kasten amendment.

U.S. population assistance levels peaked in FY2010, with USAID estimating that total assistance, including contributions to UNFPA, reached a high of $648.4 million. This increase in funding can be attributed in part to President Obama's determination that UNFPA is eligible for U.S. funding under the Kemp-Kasten amendment and to the President's Global Health Initiative (GHI). From FY2012 to FY2015, enacted bilateral and UNFPA funding levels remained constant at $575 million and $35 million, respectively. In FY2016, bilateral family planning funding was level at $575 million, while UNFPA funding decreased to $32.5 million.

Administration Requests and Congressional Actions

The following sections highlight key Administration and congressional actions regarding bilateral and multilateral FP/RH funding during the past five fiscal years.

FY2016

The Consolidated Appropriations Act, 2016 ( P.L. 113-114 ), stated that not less than $575 million shall be made available for bilateral FP/RH activities, $523.95 of which would be drawn from the Global Health Programs account (GHP). It further stated that $32.5 million shall be made available for UNFPA, a $2.5 million decrease from the enacted level of $35 million annually from FY2012 through FY2015. The act included UNFPA funding restrictions related to China from previous fiscal years. It also dropped modifications to the Mexico City Policy that were included in the House and Senate Appropriations Committee reports.

The FY2016 Administration request for bilateral FP/RH activities totaled $577.623 million, including $538 million from GHP and $39.623 million from the Economic Support Fund (ESF) account. The Administration also requested $39.6 million for UNFPA from the International Organizations and Programs (IO&P) account.

FY2015

The Consolidated Appropriations Act, 2015 ( P.L. 113-235 ), enacted in December 2014, stated that not less than $575 million should be made available for bilateral FP/RH activities, and that $35 million shall be made available for UNFPA. The act included UNFPA funding restrictions related to China from previous fiscal years.

For FY2015, the President requested a total of $609 million for bilateral FP/RH activities, including $538 million from the GHP account and $71 million from the ESF account. The request also included $35.3 million for UNFPA from the IO&P account.

FY2014

Enacted in January 2014, the Consolidated Appropriations Act, 2014 ( P.L. 113-76 ), directed that no less than $575 million shall be made available for bilateral FP/RH activities, and that an additional $35 million shall be made available for UNFPA. As during previous appropriations cycles, UNFPA funding is subject to certain restrictions, including

funds not made available for UNFPA because of any provision of law shall be transferred to the Global Health Programs account and made available for family planning, maternal, and reproductive health activities; none of the funds made available may be used by UNFPA for a country program in China; U.S. contributions must be kept in an account separate from other UNFPA accounts and should not commingle with other sums; and UNFPA must not fund abortions.

In addition, four months after the enactment of the act, the Secretary of State is required to report to the Committees on Appropriations on the funds that UNFPA is budgeting for that year for its country program in China.

For FY2014, President Obama had requested $635.4 million in bilateral and multilateral family planning funding. This included including $37 million for UNFPA from the International Organizations and Programs account (IO&P) and $598.4 for bilateral family planning. The bilateral funding included $534 million from the Global Health Programs account (GHP, formerly Global Health and Child Survival), and $64.4 million from the Economic Support Fund (ESF) account.

FY2013

On March 26, 2013, President Obama signed the Consolidated and Further Continuing Appropriations Act, 2013 ( P.L. 113-6 ), which funded most State-Foreign operations accounts, including those that provide family planning and reproductive health funding, for the remainder of FY2013 at the FY2012-enacted level, not including sequestration. All restrictions and conditions included in FY2012 State-Foreign Operations appropriations legislation ( P.L. 112-74 ), described below, apply under the act.

In February 2012, President Obama requested a total of $642.7 million for FY2013 international family planning and reproductive health funding. This included $530 million from GHP, $73.7 million from ESF, and $39 million for UNFPA from the IO&P account.

FY2012

On December 23, 2011, President Obama signed the Consolidated Appropriations Act, 2012 ( P.L. 112-74 ), which directs that not less than $575 million should be made available for family planning and reproductive health activities. The act also states that $35 million shall be made available for UNFPA. As during previous appropriations cycles, UNFPA funding is subject to certain restrictions, including

funds not made available for UNFPA because of any provision of law shall be transferred to the Global Health Programs account and made available for family planning, maternal, and reproductive health activities; none of the funds made available may be used by UNFPA for a country program in China; U.S. contributions must be kept in an account separate from other UNFPA accounts and should not commingle with other sums; and UNFPA must not fund abortions.

In addition, four months after the enactment of the act, the Secretary of State is required to report to the Committees on Appropriations on the funds that UNFPA is budgeting for that year for its country program in China.

For FY2012, the Obama Administration requested a total of $769.105 million for international family planning and reproductive health assistance. This included $625.6 million from the Global Health and Child Survival account (GHCS); $89.073 million from ESF; and $6.932 million from the Assistance to Europe, Eurasia, and Central Asia account (AEECA). In addition, it requested $47.5 million for UNFPA through the IO&P account.