WASHINGTON D.C. – The U.S. Supreme Court ruled June 20 that a controversial 2003 law requiring AIDS organizations to pledge to oppose the legalization of prostitution in order to receive federal funds violates the First Amendment. This ruling makes it easier for AIDS Groups to get Federal Funding.
The law, the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, was enacted during the Bush administration and established the framework of the President’s Emergency Plan for AIDS Relief (PEPFAR), a significant source of funding to fight HIV/AIDS globally. The statute authorized billions of dollars in funding for NGOs working to fight HIV/AIDS, but it imposed two conditions: that none of the funds could be used to advocate or promote the legalization of prostitution, and that any organization receiving funding had to have a policy in place that explicitly opposed prostitution.
To meet the second requirement USAID and the U.S. Department of Health and Human Services required all recipients of funding to agree in their award documents to oppose prostitution.
The case, USAID v. Alliance for Open Society International, was challenged by a group of NGOs whose work was focused on HIV/AIDS. The organizations did not challenge the requirement that no funding be used to support legalization of prostitution, but they did oppose the rule that compelled them to publically espouse a prescribed set of beliefs about prostitution and how it should be addressed in the context of HIV/AIDS-related work.
The policy did affect whether HIV/AIDS organizations could work with sex workers, but the biggest concerns focused on the broader implications of the requirements. The organizations said they were concerned that the policy requirement not only might negatively impact program delivery, but might also allow additional government restrictions or the regulation of funds raised from private donors. Critics of the law were especially concerned with how far the rules went beyond just controlling federal funds to potentially threaten programming, research, and debate on controversial subjects.
In its ruling, the Supreme Court said, “The Policy Requirement violates the First Amendment by compelling as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program.”
Under the First Amendment, the Court said, the government is not allowed to require citizens to publically support its position on prostitution. The Court also drew a careful line in its 6-2 ruling between defining the limits of a government spending program by dictating what the money may be spent on, which is permissible under the Constitution, and trying to use the funding to regulate speech outside the spending program, which is unconstitutional.
According to estimates from NGOs, through PEPFAR the U.S. has spent an estimated $44 billion on programs that provide anti-retroviral drugs, HIV testing, counseling, and care for people living with HIV/AIDS.
– Liza Casabona