- US Supreme Court
- Rob Crawley
Free speech and global health advocates will see their causes converge today at the US Supreme Court.
The case – Alliance for Open Society International vs. United States Agency for International Development (USAID) – is a challenge made by a number of aid organizations to USAID’s required anti-prostitution pledge.
The anti-prostitution pledge is part of the Presidents Emergency Plan for AIDS Relief (PEPFAR), which was launched in 2003 by President George W. Bush. It stipulates that not only are international organizations that receive PEPFAR funds prohibited from supporting prostitutes, they must also pledge their opposition to prostitution and sex trafficking.
Opponents say the rule violates first amendment rights and undermines efforts aimed at improving safety within the sex industry. Proponents say it’s needed if we are to make progress against human trafficking and exploitation of women.
“The split is about whether you support the sex industry,” said Norma Ramos, executive director of the Coalition Against Trafficking in Women, to Reuters.
Mie Lewis argued in the ACLU blog, “[T]he Constitution forbids the government from engaging in such moral compulsion. The First Amendment is, at its core, a shield against government intrusions into belief.”
Opponents of the rule argue that it is not a matter of explicit support for the sex industry and trafficking. They point to the unintended consequences that is now backed up by recent research. A research article in the Journal of the International AIDS Society took a look at how organizations reacted.
It found that organizations changed or retreated on HIV programs that targeted sex workers. Given that combating stigma is one of the most effective ways to reduce the spread of HIV, the change in policy by organizations contributes to continued stigmatization against certain groups.
PEPFAR’s anti-prostitution pledge has had unintended consequences on NGOs, local organizations and primarily, the provision of services to sex workers and clients. Outreach staff indicate that HIV prevention has been less successful since the inclusion of the pledge, and local HIV Incidence rates reflect this, particularly among sex workers and people presumed to be sex workers, including some gay men and transgender people.
The Alliance for Open Society International and the Watertown, MA based reproductive health NGO Pathfinder International filed a case against the rule in 2005. A US District Court ruled in June 2006 that the rule likely violated first amendment rights and issued a preliminary injunction barring enforcement of the pledge requirement against AOSI and Pathfinder International.
“We took on this case because we believe it is critical to preserve the ability for all organizations to provide a range of life-saving health services without sacrificing the right to free speech. This policy limits our ability to engage with key affected populations in the fight against HIV and AIDS and has broader implications for other health delivery in the future,” said Purnima Mane, President and CEO, Pathfinder International.
When the Global Health Council and InterAction (memberships that account for a large portion of US-based international NGOs) joined 2008 the organizations and their members also benefited from the injunction. The US government revoked its appeal to rework its guidelines for the rule before refiling the appeal in January 2010 to the Second Circuit court. Again, it ruled in favor of the first court and continued its injunction against the rule.
The government tried again to appeal to the Second Circuit and were turned down. So they turned to the US Supreme Court last July.
In January the Supreme Court announced it would hear the case beginning today. The matter as to whether the ban violates the first amendment rights of potential PEPFAR funding recipients will be determined in the course of the next few weeks. Arguments heard starting today will determine whether the rule will stand.
The United States was heralded in the lead up to the International AIDS Conference last July for changing travel laws that once banned HIV positive people from entering the country. After over a decade absence, the event returned to the US because of the law change.
While media coverage focused on the landmark changes, the two groups of people who were still not able to travel to the event occupied quite a few of the side conversations. Despite facing high risk of HIV infections, drug users and prostitutes were persona non grata into the United States and as a result, the event.
Supporters protests in and outside the conference. The most notable incident came during a panel with US congress members Rep Barbara Lee, Sen Chris Coons, Sen Marco Rubio and Sen Mike Enzi. Prostitution rights protesters marched to the front of the room to disrupt the event and call attention to US policies against prostitutes.
Former Senator Bill Frist moderated the event and initially gave the protesters with their big red umbrellas and drowning chants (see video here) the opportunity to make their statements. However, he started losing his patience due to continued interruptions of a panel filled with supporters of US foreign aid and PEPFAR.
“We don’t have a debt because of foreign aid. If you zeroed out foreign aid it would do nothing for the debt, but would be devastating not just to the world but to America’s role in it,” said Rubio at the event.
Frist, Enzi and Lee are listed among the supporters of the case against USAID. Bipartisanship extends beyond individuals with Planned Parenthood and the libritarian Cato Institute listed as organization that issued public support against the rule.
“This Court, however, has repeatedly held that Congress may not impose conditions on funding that prevent a person from exercising First Amendment rights outside the program being funded,” argues Cato’s Ilya Shapiro in an amicus brief.
The hope for many NGOs is that the rule will be permanently struck down.
“This restriction is broader than anything the Supreme Court has ever upheld and infringes on the constitutional right to free speech,” said InterAction CEO Samuel A. Worthington.
