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Supreme Court Ends Anti-Prostitution Pledge for Organizations Receiving PEPFAR

June 21, 2013

United States President's Emergency Plan for AIDS Relief

The Supreme Court yesterday struck down a provision of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003. The act had required organizations who receive funds under the President's Emergency Plan for AID Relief (PEPFAR) to have an explicit policy opposing prostitution. Since this is the primary source of international funding for many HIV/AIDS services, the pledge could have a widespread impact. Four agencies, including the Open Society Foundation, that provide HIV/AIDS services globally sued the government, stating that the pledge contradicts the marketplace of ideas and best practices in providing HIV services and renders their services less effective.

The strong 6-2 decision, written by Chief Justice John Roberts, came in the case, "Agency For International Development, et al V. Alliance For Open Society International, Inc." The justices specifically noted that there were two requirements to receive funding under the Act: the first, "that no funds 'may be used to promote or advocate the legalization or practice of prostitution,' and that (2) no funds may be used by an organization 'that does not have a policy explicitly opposing prostitution.'" The majority said that the second requirement violates the First Amendment because it required organizations who received funding to adopt the United States government's speech as its own beyond the scope of the funded program.

Justice Elena Kagan recused herself because she had participated in the government's case during her time as the solicitor general. The two dissenting votes came from conservative Judges Antonin Scalia and Clarence Thomas. The dissent essentially stated that the majority was incorrect since the government "may enlist the assistance of those who believe in its ideas to carry them to fruition," meaning that the U.S. government was seeking like-minded organizations to carry out their program. The majority specifically addressed this point, however, stating that the policy applied to speech well beyond the actual program and that in doing so the government was not seeking to work with groups it already agreed with; rather, it was seeking to compel grant recipients "to adopt a particular belief as a condition of funding."

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AIDS United and its predecessor organizations had signed on to several briefs at both the Supreme Court and lower court levels. The most recent Amicus Brief, which was filed on behalf of the Open Society Foundation, AIDS United and other friends of the court, can be found here.

AIDS United welcomes the Supreme Court's recognition that HIV/AIDS, reproductive health, and other civil society organizations must be able to reach populations that are at high risk for HIV with messages that have real meaning and resonate for them. There should not be artificial barriers, like the anti-prostitution pledge, blocking U.S. support of those organizations. We are glad that the First Amendment rights of organizations have been supported.

This ruling comes at an especially exciting moment since this week marks PEPFAR's 10-year anniversary.

Secretary of State John Kerry spoke at the celebration of the landmark program's anniversary, noting that this month, the millionth baby will be born HIV-free due to prevention of mother-to-child transmission programs supported by PEPFAR. For more information about PEPFAR's success, click here. To read Ambassador Goosby's remarks on the occasion, click here.



  
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This article was provided by AIDS United. It is a part of the publication AIDS United Policy Update. Visit AIDS United's website to find out more about their activities and publications.
 
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