Email this page

News & Updates

Groups Ask Judge to Toss Out Restrictions on AIDS Funding

April 20, 2006

Organizations protest the restrictions on AIDS funding. ¹

A US government ultimatum making federally funded health groups providing HIV prevention services pledge opposition to prostitution has "spawned a First Amendment nightmare," a judge was told.

Lawyer Rebekah Diller, asking the judge to reject the measure, said three US public health organizations serving as key partners in government efforts to stem the spread of AIDS internationally and receiving government funding want to speak freely.

"It's one thing to say you're opposed to prostitution. It's another thing to say there's only one approach to prostitution, and that's what the defendants have said here," Diller told U.S. Judge Victor Marrero, who did not immediately rule.

Diller said the plaintiffs -- the Alliance for Open Society International Inc., Open Society Institute and Pathfinder International -- have adopted policies acknowledging the harms of prostitution but object to being told how to execute them.

Assistant U.S. Attorney Richard E. Rosberger, arguing for the government, said no provision of the 2003 law containing the pledge requirement was meant to discourage the treatment of AIDS victims, including prostitutes.

To reduce behavioral risks associated with HIV and AIDS, the United States formed a policy to eradicate prostitution and sex trafficking, he said. "Beyond Congress, the president himself stated that prostitution contributes to trafficking and exposure to HIV and committed the United States itself to eradicating such practices," Rosberger said.

But he said the policy is not intended to drive out ideas critical of the government. "On the contrary, it's trying to implement the priorities of the act by making sure that its message is transmitted and that it finds the most appropriate partners to accomplish its mission of combatting HIV/AIDS," he said.

Diller responded: "When you bring in private partners, though, you bring in the First Amendment, and that's what the government's failing to grapple with here." She said the government had taken a general congressional command to adopt a policy "and from that spawned a First Amendment nightmare."

The groups say the policy would prevent anyone from advocating the legalization of prostitution or urging those working in the sex trafficking business to organize or unionize.  After Congress passed the bill, it was immediately applied to foreign aid recipients, but the Department of Justice questioned the constitutionality of applying it to domestic organizations. In late 2004, the department cleared the government to implement the requirement domestically. The lawsuit was brought in Manhattan last year.

The rule now affects private U.S. groups conducting AIDS programs overseas. To qualify for federal money, a group must first adopt a statement saying it opposes prostitution and sex trafficking. Then it must sign a form for the government promising it has the policy. Only then is the organization eligible for funding.

Besides the pledge, the new rules require AIDS groups to inform clients of condom failure rates. They also require the government to give equal opportunity to funding applicants that have "a religious or moral objection" to a particular AIDS prevention method or treatment program, such as condoms or needle exchanges.

¹ Adapted from: Larry Neumeister. Associated Press. 13 April 2006.