This guest blog is from Nicole F. Masenior and Chris Beyrer, Senior Research Coordinator and Director respectively of the Center for Public Health and Human Rights at John Hopkins Bloomberg School of Public Health. Contact firstname.lastname@example.org and email@example.com
In 2007 PLoS Medicine published our paper “The US Anti-Prostitution Pledge: First Amendment Challenges and Public Health Priorities” which summarized existing scientific evidence on strategies that effectively reduce rates of HIV among sex workers. These strategies were used in a Declaration for the court in the legal case of three non-governmental organizations who had challenged the Bush Administration on a policy requirement for grantees receiving funds through the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 to adopt policies opposing sex trafficking and prostitution. While all organizations relevant to the HIV response vigorously oppose sex trafficking, the conflation of all forms of sex work with trafficking was problematic for some. And the law’s requirement that all grantees adopt the policy for their entire portfolios, including those not supported by U.S. public funds, was seen as a First Amendment (free speech) issue. Over the past four years, changes to the Leadership Act and a recent judicial decision have further emphasized the weight of these ethical dilemmas in health policy.
Congress created the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act in response to former President George W. Bush’s announcement of the President’s Emergency Plan for AIDS Relief (PEPFAR). The plan, in addition to many other important goals and targets, highlighted a new policy goal of the U.S. – the eradication of prostitution. Any recipient of funds under this Act was required to have a policy explicitly opposing prostitution and sex trafficking and comply with the “Prohibition on the Promotion and Advocacy of the Legalization or Practice of Prostitution or Sex Trafficking.” . The requirement’s application to an organization’s privately funded money pushed The Alliance for Open Society International (AOSI), the Open Society Institute, and Pathfinder International, to file a complaint in September 2005 against the US government- USAID, HHS, and the Centers for Disease Control and Prevention’s Global AIDS Program. They moved for a preliminary injunction arguing that the pledge Policy Requirement cannot restrict activities supported by private funds .
In May 2006, the US District Court held that the policy requirement “violated the First Amendment because it was not narrowly tailored, imposed a viewpoint-based restriction on their use of private funds without allowing for adequate alternative channels of communications and compelled speech by affirmatively requiring them to adopt a policy espousing the government’s preferred message.” The government appealed this decision and developed guidelines to address these concerns. The guidelines allowed grantees to establish or work with separate affiliates that would not be subject to the Policy Requirement. Again, the court concluded that the Guidelines did not affect its previous determination and ruled the Requirement compelled speech. .
The government appealed once more. On appeal the government issued further guidance and charged that a Leadership Act grantee must affirmatively state that it is “opposed to the practices of prostitution and sex trafficking because of the psychological and physical risks they pose for women, men, and children.” It also reaffirmed that a recipient “cannot engage in activities that are inconsistent with its opposition to prostitution.”
In the midst of these proceedings, the Leadership Act of 2003 was reauthorized and amended in 2008 becoming the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act. Congress signed it into law, authorizing up to $48 billion in funding over the ensuing 5 years. . This more than tripled the previous 5 year allocation amount.
After six years and two appeals, the 2nd Circuit US court of appeals made a final decision on July 6, 2011 and ruled 2-1 in favor of AOSI. The majority concluded that the Policy Requirement did not merely keep grant recipients from expressing a certain viewpoint; it mandated that they adopt the government’s view and affirmatively state that they opposed prostitution. Remaining silent or neutral on the issue was not an option. The Court affirmed that the government cannot enforce the pledge against AOSI, Pathfinder and the U.S.-based members of InterAction and Global Health Council. However, the government continues to enforce the pledge requirement against foreign-based NGOs, who were not part of the suit, as foreign entities are not protected by the First Amendment. .
In its rebuttal, the government highlighted a case from 1991 (Rust vs. Sullivan) which upheld a viewpoint-based prohibition on abortion counseling. Health and Human Services issued grants for family planning projects so long as these funds were not used to support abortion counseling or referrals. However, grant recipients could continue their abortion related activities, but funds for this particular project had to remain independent including separate personnel and facilities. According to USAID, the lawsuit is also a government-speech case. In enacting the Leadership Act, Congress wishes to advance its message opposing prostitution and chooses to enlist the recipients of Leadership Act funding to disseminate its message.
However, the Prostitution Policy Requirement went well beyond the funding condition upheld in this abortion case, because it compels Plaintiffs to voice the government’s viewpoint and to do so as if it were their own. Again, there was no option for remaining silent. Unlike the family planning staff who, if asked about abortion, were free to make clear that advice regarding abortion was simply beyond the scope of the program.
Finally, in some situations, the government can require affirmative, viewpoint specific speech as a condition of participating in a federal program. For example, if the government were to fund an anti-drinking and driving campaign, it could and certainly would require grantees to state that they oppose drinking and driving. But in this scenario, the government’s program is, in effect, its message. This is not true in AOSI vs. USAID. The stated purpose of the Leadership Act is to fight HIV/AIDS, tuberculosis, and malaria. The government cannot now recast the Leadership Act’s global HIV/AIDS-prevention program as an anti-prostitution messaging campaign.
This debate between Congress’s spending power and conditions imposed on a grant recipient’s First Amendment rights has required intervention from the Supreme Court in several influential cases. The dissenting Judge in AOSI vs. USAID strongly suggests that the Supreme Court become involved in this debate as well.
In the interim, what happens next? Clearly, neither side will surrender what it believes to be the best approach to HIV prevention among sex workers. The government will still enforce the Policy Requirement to international NGOs who are oftentimes the grassroots organizations that have spent years or decades building trust with their target populations – marginalized sex workers for example. They will either be forced to downsize or close operations or be required to declare their opposition to prostitution which may harm their credibility as an NGO and conceivably risk offending all of groups whose approach to HIV/AIDS may differ. Fortunately, the Policy Requirement exempts the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or any United Nations agency. These organizations have recognized that advocating for the reduction of penalties for prostitution and preventing such penalties from interfering with outreach efforts are among the best practices for HIV/AIDS prevention.
There is a wide and strong consensus that trafficking, most especially sex trafficking, is a crime, a human abuse, and a practice that must be vigorously opposed. The US Trafficking in Persons (TIPS) programs is making important progress in encouraging more countries to become engaged in anti-trafficking work. The appeal court’s decision that programs for HIV prevention and care for sex workers need not demand policies which oppose prostitution as such bring needed clarity to this debate.
- Masenior NF, Beyrer C (2007) The US Anti-Prostitution Pledge: First Amendment Challenges and Public Health Priorities. PLoS Med 4(7): e207 doi:10.1371/journal.pmed.0040207
- The United States President’s Emergency Plan for AIDS Relief (2011) PEPFAR overview. Available: http://www.pepfar.gov/about/index.htm. Accessed 9 July 2011.
- Brennan Center for Justice at NYU School of Law (2006) Challenging global AIDS funding restrictions: Alliance for Open Society International v. USAID. Available: http://www.brennancenter.org/stack_detail.asp?key=102&subkey=8348&init_key=8162. Accessed 8 July 2011.
- Brennan Center for Justice at NYU School of Law (2011) Challenging global AIDS funding restrictions: Alliance for Open Society International v. USAID. Available: http://brennan.3cdn.net/3b080c9f787a34860c_gdm6b9xbx.pdf. Accessed 9 July 2011.