Can the US Congress require AIDS service organizations working abroad to pledge fidelity to the government’s opposition to prostitution and sex trafficking as a condition of receiving funding? The US Supreme Court recently announced that it will address this question in April, when it hears USAID v Alliance for Open Society International.
A decade ago, Congress passed the US Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act), funding the President’s Emergency Plan For AIDS Relief (PEPFAR). Since then, the US government has committed $46 billion to PEPFAR, the United States’ commitment to fighting the global HIV/AIDS pandemic, an extraordinary effort that has helped save millions of lives.
But PEPFAR also has mired successive US administrations in politicizing public health. The 2008 PEPFAR reauthorization legislation requires host countries to support “activities promoting abstinence, delay of sexual début, monogamy, and fidelity.” PEPFAR’s “conscience clause” allows organizations with a moral or religious objection to opt out of providing services to patients with a sexual orientation of which they disapprove. In addition, the 2003 law required US-based organizations receiving funding for HIV prevention work abroad to pledge that they “explicitly oppose prostitution and sex trafficking.”
Although the US Agency for International Development (USAID) and the US Department of Health and Human Services (HHS) issued guidelines in July 2007 permitting recipients of PEPFAR funding to establish affiliate organizations to operate outside the pledge, the degree of separation required made this nearly impossible. Two federal circuit courts came to opposite conclusions on the constitutionality of the anti-prostitution pledge: in 2007, the US Court of Appeals for the District of Columbia Circuit upheld it under the First Amendment, while in 2011, the Second Circuit struck it down as unconstitutional.
The Muddled “Unconstitutional Conditions” Doctrine
The Supreme Court’s “unconstitutional conditions” doctrine holds that government may not place conditions on public funding that require the recipient to surrender First Amendment rights. Thus, government has no obligation to fund any activity, but if it chooses to do so, it cannot restrain the free expression of grant recipients without a compelling state interest.
The unconstitutional conditions doctrine, however, is almost impossible to decipher. For example, in 1991, the Supreme Court upheld HHS prohibitions on the use of family planning funds to counsel women regarding abortion (the so-called “gag rule”). The Court reasoned that government is entitled to subsidize one protected right (family planning), while refusing to subsidize analogous rights (abortion counseling).
In another case, in 2006, the Court similarly upheld the government’s right to withhold funding to any public university that denied access to military recruiters, even though the universities claimed it violated their freedom to disapprove of the military’s “don’t ask, don’t tell” rule, which allowed the military to discharge service members who disclosed their homosexuality. The Court said the law neither denied academic institutions the right to speak nor required them to say anything.
The Anti-Prostitution Loyalty Oath
A divided Second Circuit reasoned that the Leadership Act “compels grantees to espouse the government’s position on a controversial issue.” The Court also noted, “Furthermore, the targeted speech… is the subject of international debate. The right to communicate freely on such matters of public concern lies at the heart of the First Amendment.”
In its Supreme Court brief, the Justice Department argued the Leadership Act’s intent was to ensure that grant recipients comply with the strategy of reducing behavioral risks for HIV. Congress has determined that “participating in the sex trade or sex trafficking carries serious risks for women, men and children across the globe.”
Although commercial sex work and sex trafficking pose serious risks of sexually transmitted infections, including HIV, many AIDS advocates and policy makers believe that a flat prohibition is unrealistic and unwise. They prefer a “harm reduction” approach that engages, rather than alienates, sex workers, seeking to make their jobs safer. Sex workers, many of who are desperately poor and unable to survive without their work, face multiple dangers—not only of acquiring and transmitting infection, but also violence. Working with them, rather than denouncing their behavior, can increase condom use, reducing risks for both workers and clients.
AIDS organizations are guests in the countries in which they operate and must partner with each country’s ministry of health, offering services that are consistent with national health plans and policies. Highly regarded philanthropic organizations such as Pathfinder International (which provides reproductive health services) argued in a brief to the Supreme Court that they “avoid taking policy positions or making statements that are likely to offend” the countries they are working in and the people who they seek to help. Pledging their opposition to prostitution, they argue, would harm their organization’s “effectiveness in working with high-risk groups to fight HIV/AIDS.”
What makes the anti-prostitution “loyalty oath” even more concerning is that it requires fidelity to the government’s position even if advocacy is undertaken with private funds outside the scope of federal funding. The rule is noxious to the ideals of the First Amendment in that it compels adoption and espousal of the government’s viewpoint and prohibits inconsistent speech.
The vagueness and open-endedness of the Leadership Act binds US-based organizations with an international mission. It could potentially have even a broader reach by binding foreign subcontractors. As the Huffington Post explained, the act “could pressure organizations not only to censor their own activities, but even to avoid partnering with local community groups that might be perceived as ‘supporting’ sex workers …[which] hampers relationships between provider and client, and undermines crucial trust between aid workers and the surrounding community. Moreover, the policy …[promotes stigma that] only further criminalizes and alienates sex workers at high risk of HIV/AIDS.”
The Second Circuit ruled that the First Amendment rights of US-based organizations extend to their work outside of the United States and that the US government’s obligations not to infringe on freedom of expression also extend beyond US borders. The Supreme Court, however, has granted government a wide berth in using its spending power to muzzle speech with which it disapproves. If that trend continues, it could have distressing implications for public health and the freedom of expression both within the United States and worldwide.
About the author: Lawrence O. Gostin, JD, is University Professor and Faculty Director, O’Neill Institute for National and Global Health Law, Georgetown University Law Center, and Director of the World Health Organization Collaborating Center on Public Health Law and Human Rights.
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