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Supreme Court Justices Hear Arguments in Case Challenging Anti-Prostitution Pledge

April 23, 2013

"Supreme Court justices appeared divided on Monday as they considered a challenge to a law requiring non-profit organizations to adopt an anti-prostitution policy in order to obtain federal funding for HIV/AIDS programs abroad," Reuters reports (Hurley, 4/22). "The disputed provision is part of a 2003 law under which the United States" created the PEPFAR initiative, the Washington Post notes (Barnes, 4/22). "The case, which is expected to be decided by late June, presents a test of the First Amendment's right to free speech as well as what strings the government can attach to its money," USA Today writes, adding, "At a policy level, it pits two worthy goals against each other: preventing the spread of HIV/AIDS and opposing the sex traffic that ensnares young women and girls, particularly in Africa and Asia" (Wolf, 4/22). "The answer, judging from the justices' comments in the first half of the argument, seemed to be that the First Amendment bars attaching that kind of condition to federal grants," according to the New York Times. "But what seemed like a consensus disintegrated as the argument progressed and the justices started to sort through what conditions might be permitted by the First Amendment," the newspaper notes (Liptak, 4/22).

"The Obama administration, which is defending the law, says the government can and does set restrictions on its funding programs to find the best 'partners' for its efforts, and it is reasonable to ask groups receiving funds to fight AIDS to also oppose prostitution and sex trafficking," the Washington Times states (Wetzstein, 4/22). "Defending the law in the Supreme Court on Monday, Deputy Solicitor General Sri Srinivasan contended that Congress was well within its rights to fund only those anti-AIDS organizations that agree with its policy against prostitution," NPR's "All Things Considered" notes (Totenberg, 4/22). But "[t]he justices indicated they were conflicted in the case," according to Bloomberg, which details some of the arguments on both sides (Stohr, 4/22). "Justice Elena Kagan, who was solicitor general earlier in the litigation, recused herself," the Wall Street Journal notes, adding, "A decision is expected before July. If the justices divide 4-4, the issue will await resolution until a future case, because lower courts have divided on the question" (Bravin, 4/22).

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