The end of Roe v. Wade?

Written by

Maura Kitchens West, Zoe Johnson

Published on

May 4, 2022

Disclaimer: This piece was written in response to the leaked initial draft opinion on May 2, 2022. Roe v. Wade was officially overturned in a 6-3 majority on the Dobbs v Jackson Women's Health Organization case in the Supreme Court on June 25, 2022. Global development advocates should immediately prepare for US cuts in development funding for SRHR, gender equality, women's economic empowerment, and public health funding in response to the decision in addition to countering renewed support for the global anti-choice agenda.

Executive Summary

The Supreme Court’s pending decision to overturn Roe v. Wade could have drastic impacts on US funding and policies for sexual and reproductive health and rights (SRHR) internationally. Although Roe v. Wade does not have a direct impact on US foreign policy, its overturn would send a strong signal about the US’ position on reproductive health care. Pending the decision, global development advocates should be prepared for eventual cuts to US multilateral and bilateral funding for family planning, sexual education, and gender-related public health programs in low- and middle-income countries. This outcome is even more likely if Republicans gain greater power in the upcoming midterm elections. In addition, global health and sexual and reproductive rights advocates around the world could face growing political backlash as the international anti-choice movement will likely be newly empowered by the overturning of Roe v. Wade.

This Supreme Court draft decision should serve as a reminder to global development advocates of the importance of continued efforts to push donors to improve the quality of and access to comprehensive sexual health and education programs, including safe abortions, in low- and middle-income counties. Given the important role the US plays in funding for these issues, advocates should be prepared to double down on their advocacy efforts with other donor governments. In the event of US withdrawal from the sector, the global community will need to step up to fill the funding gap as they did when the US slashed funding for SRHR under the Trump Administration. Because this ruling could serve to super-charge the global political debate around these issues, it is essential that advocates focus on promoting evidence-based approaches to policy and funding decisions. Meeting pregnant people’s need for safe and comprehensive reproductive healthcare is essential to SRHR, gender equality, public health, women’s economic empowerment, education, and water, sanitation, and hygiene (WASH), making it fundamental to sustainable development.

According to an initial draft majority opinion leaked on May 2, 2022, the US Supreme Court has voted to strike down the watershed 1973 Roe v. Wade case, which legalized abortion in the US. POLITICO released the document, written by Justice Samuel Alito, which attacks the federal constitutional protection of abortion rights through Roe v. Wade, in addition to the subsequent 1992 Planned Parenthood v. Casey case that largely maintained the right. The court ruling, however, is not final until it is published, which will likely occur within the next two months. The leaked draft has raised concerns across the development community. For example, the Guttmacher Institute and KFF have raised concerns over the widespread implications of overturning Roe v. Wade.

Domestically, the immediate impact of the ruling would end the near 50-year legal precedent of federal abortion rights in at least 13 US states due to “trigger bans”, which would instantly place restrictions on, or fully ban abortion. Additional states could decide whether to restrict or ban abortion following the ruling.

Alito’s leaked argument said that Roe v. Wade was “egregiously wrong”, citing that it protected a right that was not included explicitly in the Constitution and was not a traditionally safeguarded constitutional right. With such legal reasoning, subsequent Supreme Court decisions regarding the right to privacy and autonomy could be called into question. Upholding the draft opinion using Alito’s leaked reasoning will open the floodgates for restrictions on women’s rights, especially those to maternal and reproductive health and rights, and could lead to additional rights restrictions for the LGBTQ+ community. According to TIME’s Erwin Chemerinsky, “the Court’s pulling out the thread of abortion rights threatens to unravel a fabric of rights that has been protected for decades”.

Implications for US development funding and policy

The US Congress has consistently debated whether to fund international family planning (FP) programs in the 49 years since the historic Roe v. Wade decision. These programs can deliver services that attempt to reduce the number of unsafe abortions in partner countries, such as improving and funding women’s, girls’, and pregnant people’s access to sexual and reproductive health and rights (SRHR), expanding access to sex education, and increasing abortion-training opportunities for medical personnel. US funding for FP and reproductive health totaled US$608 million in FY2020, which included funding for the United Nations Population Fund (UNFPA).

Overturning Roe v. Wade puts the US’s international FP programs, which are largely housed within development cooperation, at risk. Despite great strides in access to maternal and child health (MCH) and FP care over the last five decades — which were made with significant support from US funding schemes — more than 218 million women in low- and middle-income countries still have unmet FP needs. Limited access to safe abortions and FP services puts the health and the economic security of pregnant people at risk in both low- and high-income countries. Restrictions on the right to abortion could lead to regressions in development support for contraceptives and lead to the delegitimization of women’s and girls’ healthcare and access to sex education.

Financially, US Congress could call into question both bilateral and multilateral funding. The US contributed approximately US$700 million to the World Health Organization (WHO) in 2020-2021. The WHO, one of the world’s top abortion research and advocacy institutions, released new guidelines on abortion care on March 9, 2022, which call for unimpeded access to safe abortions. Part of WHO’s budget in low- and middle-income countries is dedicated to abortion care, SRHR, and sex education through the ‘Healthier Populations’ Programme, which receives at least US$431 million each year; SRHR are also addressed in different pillars of the WHO budget. Roe v. Wade opens the possibility that the US could cut federal funding via additional legal proceedings for international development programs that fund, support, and perform sexual and reproductive health services, including, but not limited to, abortion care.

In addition to the WHO, multilateral funding for UNFPA, the Family Planning 2030 partnership — which focuses on rights-based family planning — and the Global Financing Facility (GFF) could be affected by increased restrictions on access to abortion in the US.

The United States Agency for International Development (USAID) is the world’s largest FP bilateral donor. Overturning Roe v. Wade could spur tightening restrictions on USAID’s ability to support the millions of people worldwide who need access to FP services.

Additional US agencies that provide FP and reproductive health funding and programming to low- and middle-income countries through various mechanisms that could be at risk of reduced development funding include the Centers for Disease Control and Prevention (CDC), the Department of State, National Institutes of Health (NIH), and the Peace Corps. While USAID’s MCH, FP, and reproductive health efforts are at the greatest risk, the President’s Emergency Plan for AIDS Relief (PEPFAR) could also be affected given the organization’s focus on sexual education and distribution of contraceptives to reduce HIV/AIDS rates, which often coincides with FP programs.

Potential legal consequences

The US federal government has used the following legal provisions, in addition to many others, to prohibit abortions and restrict access to FP and reproductive healthcare in the US and internationally. Overturning Roe v. Wade will likely result in additional restrictions and bans on reproductive and sexual healthcare, sexual education, and abortion care funding from the US for global development efforts which support all genders with family planning, specifically pregnant people in low-income countries.

Mexico City Policy/Global Gag Rule (GRR; 1984)

The GGR has been enacted and redacted many times since its inception, preventing NGOs from using their own non-US funds to provide FP and safe abortion services, information, counseling, or advocacy. The Trump administration expanded the rule in 2017 to apply to foreign NGOs receiving FP resources and subsequently expanded the GRR to apply to all US global health funding, affecting nearly US$12 billion in development funding. The rule was later overturned by US President Joe Biden. Similarly, the Bush administration attempted to enact the GGR, which, in addition to prohibiting medical professionals from mentioning abortion to patients, restricted international FP funds, and proposed the extension of the financial block to include restrictions on HIV/ AIDS funding due to the nature of FP services provided.

Kemp- Kasten Amendment (1985)

The Kemp-Kasten Amendment is a US legal provision that has been used in 16 of the last 33 fiscal years along party lines that states that “any organization or program which, as determined by the [p]resident of the United States, supports or participates in the management of a program of coercive abortion or involuntary sterilization.” Most recently, the Trump administration withheld funding from UNFPA from FY2017 to FY2021 via the Kemp-Kasten Amendment. Presidents in the future will be able to implement Kemp-Kasten and might be given further purview to restrict development funding for FP, SRHR, sex education, and safe abortion care if Roe v. Wade is overruled.

Helms Amendment (1973)

The Helms Amendment prohibits the use of US foreign assistance to directly pay for abortion as a method of family planning or “to motivate or to coerce” any person to practice abortion.

Tiahrt Amendment (1998)

The Tiahrt Amendment places requirements on voluntary FP projects that receive assistance from USAID. Many NGOs are limited in activities related to FP, sex education, and advocating or providing increased access to safe abortions. These restrictions could be tightened if the initial draft opinion is confirmed.

Additional legislation which could be effective given an overturned Roe v. Wade can be found here.

Many are wondering how the Biden administration will address the issue. Biden has been relatively supportive of SRHR over his political career, so some of the aforementioned risks are not immediate. However, overturning Roe v. Wade opens the possibility for additional restrictions, which are likely in the future. Some advocates are calling for President Joe Biden to codify Roe v. Wade before the decision in addition to potentially packing the Supreme Court with additional justices. Biden’s immediate response has been to condemn the draft ruling but put the decision back into the hands of the voter, emphasizing that the outcome of the upcoming midterm elections, and whether it results in a pro-choice majority, would dictate the response to the draft.

Next steps for development experts?

Abortion rights are related to the global development agenda in that they intersect with global public health, gender rights, SRHR, women’s economic empowerment, education access, and water, sanitation, and hygiene (WASH) access. With disruptions in access to FP and reproductive care common during the global COVID-19 pandemic, it is imperative that donors support access to proper and comprehensive healthcare. Given US' important role in funding these issues, advocates should be prepared to double down on their advocacy efforts with other donor governments in the event of US withdrawal from the sector. It will be essential that advocates remind the rest of the global community of their responsibility to step up to fill the funding gap as they did when the US slashed funding for SRHR under the Trump Administration. Global development advocates, especially those seeking to leverage US funding, must emphasize empirical public health data to encourage continuous FP development funding, rather than focusing on constitutional and cultural conflicts in the US to ensure pregnant people in low-income countries have access to SRHR, FP, proper sex education, and access to safe abortions.

To learn more about global SRHR funding schemes, check out this Donor Tracker Insight and associated webinar discussing ‘Donor Funding for Sexual and Reproductive Health and Rights.'