Background: On 15 May, 2017, the US government formally announced the introduction of the Protecting Life in Global Health Assistance Policy (The Policy) - formerly known as the Mexico City Policy (MCP) or the Global Gag Rule (GGR). The Policy prohibits any foreign-NGO receiving Global Health Assistance funding to certify that it will not “perform or actively promote abortion as a method of family planning [...] or provide financial support to to any foreign-NGO that conducts such activities”. This includes what an organization is able to do with non-USG funding. Distinct from the MCP, however, was a new affirmative defense against the Policy that states: “[...] in the event of a conflict between [the Policy] and an affirmative duty of a healthcare provider required under local law to provide counseling about and referrals for abortion [...], compliance with such law shall not trigger a violation of [the Policy].”
Description: The expansion of the Policy has significant implications for organizations delivering HIV services globally. For organizations funded for prevention of mother-to-child transmission services, community health worker engagement, and those with integrated family planning and HIV services - most of whom have no prior experience with the MCP - incorporating the Policy is legally complex and ethically dubious. We conducted a legal assessment of the applicability of the affirmative defense in several African countries.
Lessons learned: South Africa has particularly strong Constitutional protections for reproductive rights (sections 12(2)(a) and 27(1)(a)), strong informed consent requirements in the National Health Act and ethical guidelines, and robust case law that compel healthcare providers - including PEPFAR partners - to continue counseling about and referring for abortion services that cannot be circumvented by the Policy. Evaluations in Mozambique, Zambia, and Zimbabwe have found differing levels of protections.
Conclusions/Next steps: The legal and ethical obligations of HIV providers requires assessing the legal landscape in which they are operating and standing up for women''s reproductive health choices. South Africa in particular has provided a template that advocates should utilize in pressing for legislation that enables healthcare providers to mitigate some of the substantial harms created by the Policy.



[PLGHA Affirmative Defense and HCW Obligations]