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The U.S. government has agreed that a Peruvian activist set to testify before Congress today will not be punished for violating the Bush administration’s funding ban on international aid to groups that advocate abortion. At a hearing before federal Judge Loretta Preska of the U.S. District Court for the Southern District of New York, Assistant U.S. Attorney Gideon Schor vowed that Susana Galdos Silva will not jeopardize her organization’s funding by testifying about the impact of the so-called Global Gag Rule — or for her criticism of Peru’s abortion laws and policies. The promise undermined a request by lawyers with the Center for Reproductive Law and Policy (CRLP) for a court order blocking government retaliation against Galdos for her testimony before the subcommittee on International Operations and Terrorism of the Senate Foreign Relations Committee. After Wednesday’s hearing was scheduled on the CRLP’s request for a temporary restraining order, the government promised by letter that Galdos’ testimony concerning U.S. laws and policies would not be punished, and that the same guarantee extended to comments regarding Peruvian matters. “Why are we here, please, given the government’s letter?” Judge Preska asked CRLP lawyer Simon Heller. She added later that “there is no case or controversy” for the order sought in The Center for Reproductive Law and Policy v. Bush, 01 CV 4986. But Heller said that the government was “speaking with many voices,” and wanted the Bush administration’s guarantee on the record. “We got most of what we wanted,” Heller said after the hearing ended. “We have a federal judge on the record saying that Ms. Galdos can promote abortion reform.” The CRLP filed suit on June 6 seeking a preliminary injunction blocking the gag order, which threatens to withhold funding for any foreign nongovernmental organization that advocates abortion. The suit implicated the powers of the president to set foreign policy, congressional authority over the purse strings, and, as far as statements made on U.S. territory, the First Amendment and the Equal Protection Clause.

POLICY STATEMENT The origins of the gag order lie in a policy statement that a U.S. delegation delivered to a United Nations population control conference in Mexico City in 1984. The policy led the U.S. Agency for International Development (USAID) to place conditions on aid to population groups in language called the Standard Clause, which states that an aid recipient will not “perform or actively promote abortion as a method of family planning in USAID-recipient countries or provide any financial assistance to any other foreign non-governmental organization that conducts such activities.” The policy and the Standard Clause were later held to be constitutional by the 2nd U.S. Circuit Court of Appeals in Planned Parenthood Federation of America (PPFA IV) v. AID, 915 F.2d 59 (2d Cir. 1990). After President Bill Clinton rescinded the policy by executive order upon taking office in 1993, the restrictions reemerged in new, albeit somewhat less stringent form, when Congress enacted fiscal year 2000 restrictions which require USAID fund recipients to certify that they do not perform abortions in any foreign country “except where the life of the mother would be endangered if the pregnancy were carried to term or in cases of forcible rape or incest.” Recipients must also not violate the laws of the country “concerning the circumstances under which abortion is permitted, regulated or prohibited,” or “engage in activities or efforts to alter the laws or governmental policies” concerning abortion. While President Clinton used his authority to waive this requirement, only $15 million in funding was provided for population activities worldwide by Congress in fiscal year 2000.

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