PEPFAR, Prostitution Policy, and the First Amendment

By Rob Banaszak on January 18, 2013 in Policy/Advocacy

By Sarah E. Fay, J.D,
Zamora Fellow 2009

This spring, the Supreme Court of the United States (SCOTUS) will decide whether the government can condition PEPFAR funds on the adoption of an explicit anti-prostitution policy.

On January 11 2013, SCOTUS granted a petition for writ of certiorari in the matter of United States Agency for International Development, et al. v. Alliance for Open Society International, Inc., et al(1)

Specifically, the Court will determine whether a federal conditional spending statute predicated on adoption of a policy explicitly opposing prostitution and sex trafficking violates the First Amendment. The outcome of this case will have far reaching effects throughout the HIV/AIDS community, as two of the respondents collectively include most of the organizations receiving Leadership Act funding in the U.S.

The U.S. Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003 (” Leadership Act“) is at the heart of this debate, and it is the primary vehicle for distributing funds for the President’s Emergency Plan for AIDS Relief (“PEPFAR”). The Leadership Act requires organizations receiving funds to have policies affirmatively opposing prostitution and sex trafficking:

No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization
that does not have a policy explicitly opposing prostitution and sex trafficking, except that this subsection shall not apply to the Global Fund to Fight
AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or to any United Nations agency. 22 U.S.C. §

The Alliance for Open Society International (“AOSI”) claims that the Leadership Act’s Policy Requirement violates First Amendment guarantees by requiring grantee organizations to adopt as their own the government’s viewpoint on prostitution. Moreover, grantees’ First Amendment rights are further offended by the Policy Requirement’s application to grantees’ alternatively funded, private speech. With regard to the substance of anti-prostitution policies, AOSI states that the Policy Requirement impedes its ability to work to fight HIV/AIDS by prohibiting from discussing its work and research at “public health conferences, in publications, and on websites.”(2)

USAID asserts that congressional Spending Power permits Congress to use federal funding to further a government purpose. Here, Congress intended for the Leadership Act to include efforts to prevent the spread of HIV and alter high-risk behaviors associated with spreading the disease. Congressional findings linking prostitution and the spread of HIV serves as a strong foundation for the Policy Requirement’s focus on deterring behavior associated with prostitution. USAID claims that enlisting NGOs to spread a message aimed at preventative measures falls within the purview of SCOTUS precedent and is constitutional. Additionally, USAID notes that organizations are not required to accept the funding if they do not wish to adopt an explicit anti-prostitution policy. In the alternative, the Department of Health and Human Services and USAID, the two agencies tasked with disbursement of Leadership Act funds, have issued nearly identical guidelines allowing grantees to create or work with non-recipient organizations to engage in activities contrary to the Policy Requirement. In its petition, USAID states that this dual structure approach for affiliates “cabin[s] the effects of a restriction on speech,” thereby “cur[ing] any constitutional difficulty” relating to alternatively-funded, private speech.(3)

Aside of First Amendment implications, what is clear here is that organizations focused on HIV/AIDS issues need to be empowered to meet the needs of their communities. The sooner those organizations are able to carry out their work uninhibited, the better.

For a full discussion of the additional issues addressed in this case, please see SCOTUSblog.

The petition was made on appeal of a United State Federal Court of Appeals Second Circuit decision that affirmed
the SDNY District Court’s decision to grant a preliminary injunction against
enforcement of the Leadership Act’s pledge requirement. The case is likely to be heard during the upcoming April sitting of SCOTUS.

Brief in Opposition, p7. The Policy Requirement’s exemption of specific international organizations – such as WHO and UN – that have made statements in direct
opposition to the anti-prostitution approach underscores AOSI’s assertion.

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