How Comparative Law Can Counter Threats to the ‘Most Successful Global Health Program in Modern History’

By Joelle Boxer

PEPFAR, the President’s Emergency Plan for AIDS Relief, is under threat. Some members of Congress are withholding reauthorization support while arguing, without evidence, that PEPFAR funds abortion.

This is untrue: U.S. law prohibits PEPFAR from funding abortion. That alone should resolve the current impasse and secure the program’s reauthorization. Should bad faith opponents require further reassurance, however, they need look no further than the local legal realities of the 25 countries and 3 regions where PEPFAR operates.

A Bipartisan Program Politicized by the Abortion Debate

Since its bipartisan inception in 2003, PEPFAR has saved 25 million lives and prevented 5.5 million cases of mother-to-child HIV transmission. It has subsequently been reauthorized by Republican and Democratic Congresses in 2008, 2013, and 2018 and earned praise as “one of the most successful global health programs in modern history.” Just four years ago, a blogger on this website emphasized that bipartisanship was “an ongoing theme” of the program because, “in the end, PEPFAR is hard to criticize.”

Unfortunately, that has not held true in recent months. In the lead-up to the reauthorization deadline of September 30, a conservative think tank propagated unsubstantiated allegations that PEPFAR-supported reproductive health services were “code for abortion.” Congressman Chris Smith asserted that PEPFAR had “integrated abortion on-demand promotion with HIV/AIDS work.” Anti-abortion organizations like the Susan B. Anthony List announced they would “score” Congressmembers on their reauthorization vote, creating a political liability for “most Republicans,” according to news reports.

In response, the head of PEPFAR affirmed it “has never, will not ever, use that platform in supporting abortion,” as it must comply with the Helms Amendment, which prohibits U.S. foreign aid from funding abortions. A PEPFAR scholar called the claims “legally impossible” because of the Helms Amendment. Even Republican President George W. Bush chimed in, declaring “there is no program more pro-life than one that has saved more than 25 million lives.”

Looking to Comparative Law

If those opposed to reauthorization are legitimately concerned that PEPFAR money is being used to promote or perform abortions in Africa, they can look to comparative law for answers. Abortion access is, in fact, highly restricted in most African countries. In Tanzania, where PEPFAR allocated $454 million in 2023, abortion is criminalized unless performed to safeguard the life or health of the pregnant woman. In Nigeria, where PEPFAR allocated $402 million in 2023, abortion is criminalized unless performed to save the life of the pregnant woman. In Zimbabwe, where PEPFAR allocated $203 million in 2023, abortion is criminalized unless performed to safeguard the life or health of the pregnant woman or in cases of fetal impairment, rape, or incest. Even when these narrow exceptions apply, the procedure is extremely difficult to access in countries with such restrictive laws.

Of the 28 African countries with either PEPFAR country or regional programs, only 2 have legalized abortion without restriction as to reason (Mozambique and South Africa) — and only then for the first 12 weeks of pregnancy. For PEPFAR to be funding abortion “on demand” in Africa, then, the program (with rare exceptions) would be breaking both U.S. law and partner country law.

Funding illegal abortions in partner countries would also run counter to stated operating procedures and objectives of the program. According to its operational plan guidance, PEPFAR prioritizes collaboration with national governments. Each country’s PEPFAR Coordination Office carries out the program “in alignment with host-country plans and priorities” and liaises with “agreed-upon host-country government structures, departments, and offices” to ensure collaboration with government-led HIV programs. Operating Units must “regularly consult and communicate with all levels of” the Ministry of Health, national AIDS authority, and government leaders of each PEPFAR country. Partner country governments can even implement PEPFAR programs directly through government-to-government agreements. One of PEPFAR’s five strategic pillars to end the HIV/AIDS pandemic is exclusively focused on transitioning program management to partner country leadership in “all aspects of the HIV response.”

Taken together, reauthorization opponents’ hypothetical defies logic: a program that is 1) legally prohibited from funding abortion could 2) fund abortions in a country where the procedure is criminalized, all the while 3) working in alignment with and handing over duties to the country government itself. The governments of Tanzania, Nigeria, and Zimbabwe, for example, are not collaborating with PEPFAR to violate their own laws and U.S. law. PEPFAR, in other words, has not been “hijacked.”

The state of abortion law is not the only reason why arguments against PEPFAR reauthorization are bunk. And, to be sure, abortion criminalization is antithetical to the goals of public health. Yet here, the presence of these laws in many PEPFAR countries provides a simple response to abortion-related reauthorization concerns. Illegitimate concerns should not get in the way of renewing life-saving HIV/AIDS funding for years to come.