The Return of State-Based “Gag” Rules?

As one of his first acts as president, Donald Trump signed an executive order forbidding any international organization that so much as even mentioned abortion from obtaining funding from the United States.

This reinstatement of the Mexico City Policy — often referred to as the “global gag rule” because it binds non-profit organizations from giving full information to the people it serves, even in countries where abortion is legal — has international abortion rights activists, global health experts and maternal health champions incensed.

But if they want to get really angry, they might just want to take a look back at the US, too.

In the state of Kentucky, a new bill has been introduced into the legislature that puts a gag on local organizations just as imposing as the one happening internationally. HB 149 will pull any state resources from any hospital, medical provider or health care center that provides “abortion services.”

The definition of “services” is a wide one. According to the bill, “Abortion services means providing abortions, providing referrals to or information about facilities where abortions are performed or about individuals who perform abortions, or providing counseling, advice, written materials or other information that encourages or promotes abortion.”

In other words, even a pamphlet that mentions an abortion provider’s address, for example, would be considered offering “abortion services” under this law, even if the address is being given for a reason that has nothing to do with providing an abortion.

Kentucky advocates are rightfully horrified about the unintended consequences that could come from such a wide definition, and oddly enough, it is the clergy that is leading the charge to kill the bill.

“Here’s the problem: under HB 149 clergy, high school counselors, or social workers who find themselves in the position of counseling pregnant women, could arguably be labeled abortion providers, and risk public funding,” writes Derek L. Penwell, the senior pastor at Douglass Boulevard Christian Church, in an op-ed for the Courier-Journal.

As Penwell notes, many churches provide ample social service programs that are funded through state government, funds which could be put at risk if their pastors were inadvertently accused of being “abortion services” by this over-zealous definition.

Penwell is right to be concerned, too. A similar bill was introduced and passed in Arizona in 2011, gagging social agencies and non-profits in that state from speaking about or giving information regarding abortion. At risk in their case was tax-exempt status, which would be used to dry up donations to those organizations. Most endangered by the law were domestic violence non-profits and women’s shelters. The bill was struck down in courts as a violation of the non-profits’ first amendment rights for denying them freedom of speech.

The court win is an auspicious one, and unfortunately one that may end up being revisited at some point in the near future. With Kentucky introducing their bill, and the tendency to see state-based abortion legislation copy-cat its way from one red state to the next, there is a near certainty that more bills are coming.

Even worse, the GOP dominance in Congress and the White House puts the country at risk for a federal level gag rule again, such as the one introduced in the Reagan years. As the New York Times explained in 1994, “The gag rule, which prohibited physicians in federally funded clinics from telling women that abortion was a legal option and where it could be obtained, was formulated by the Department of Health and Human Services in 1988. Women who inquired about the procedure were to be told that the clinic did not ‘consider abortion to be an appropriate part of family planning.'”

The original federal gag rule referred only to health service providers but, as can be seen in Kentucky, the GOP may well be ready to extend it to all organizations that receive any taxpayer funds. That “super gag rule,” as it is often called, may be on the horizon nationally, or may just be state-based.

But where ever it does get introduced, expect many to be forced to choose between helping their clients by offering full resources and options, or having their hands tied by a government that gags them with the threat of defunding.