The U.S. Court of Appeals for the Second Circuit handed nonprofit organizations fighting HIV/AIDS abroad an important victory when it ruled that nongovernmental organizations (NGOs) cannot be required to condemn prostitution in order to receive federal funding. The decision was split 2–1, with the majority opinion citing the First Amendment. Additionally, the ruling upheld an opinion in favor of the plaintiffs, four nongovernmental health organizations, that had been previously handed down by a lower court.

The funding under debate comes from the United States Leadership against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, which is more commonly known as the President’s Emergency Plan for AIDS Relief (PEPFAR). PEPFAR originally provided $15 billion over five years to respond to HIV/AIDS, tuberculosis, and malaria in low- and middle-income countries.[1] When it was renewed in 2008, the plan authorized up to $48 billion over the next five years.[2] The current legal battle over PEPFAR funding began in 2005, when four NGOs (Alliance for Open Society International, Inc.; Pathfinder International; Global Health Council; and InterAction) sued the U.S. government, claiming that their rights were violated by the requirement that they publicly oppose prostitution and sex trafficking by signing an anti-prostitution pledge in order to receive funding through PEPFAR.[3] The U.S. District Court for the Southern District of New York delivered a preliminary injunction in favor of the NGOs. Government agencies, including the U.S. Agency for International Development, filed an appeal.[4]

Human Rights Watch called the Second Circuit’s decision “an important step in the global fight against AIDS.”[5] Additionally, 22 groups who previously issued an amicus curiae brief to the Second Circuit Court in this case, of which Human Rights Watch is one, are quick to point out the damaging effects an anti-prostitution message can have on an outreach campaign.[6] These policies can stigmatize prostitutes and hinder valuable partnerships between health organizations and sex workers.[7] In fact, organizations such as the U.S. Centers for Disease Control, the World Health Organization, and UNAIDS have noted that these partnerships are “critical in ensuring effective HIV prevention and treatment efforts.”[8] Furthermore, many of these groups note the importance of remaining neutral on the issue of sex work so as not to offend host countries.

In the majority opinion, U.S. Circuit Judge Barrington Parker emphasized that the policy does not simply require that an organization not talk about a subject—a tactic known as a gag rule—but actually drives them “to espouse the government’s viewpoint.”[9] The court ruled that this compelling nature of the policy violates the First Amendment. Judge Parker goes on to note the risks of offending prostitutes, the people “whose trust [health organizations] must earn to stop the spread of HIV/AIDS.”[10]

In his dissent, Judge Chester J. Straub wrote that the requirement “neither imposes a coercive penalty on protected First Amendment rights nor discriminates in a way aimed at the suppression of any ideas.”[11] He goes on, after some 46 pages, to call on the Supreme Court to “set us straight.”[12]

Still, human rights activists celebrated the decision. “It means our clients, some of the major humanitarian groups doing AIDS prevention, can continue their life saving work in the way that’s most effective,” said Rebekah Diller, who argued for the plaintiffs.[13]

“This is a victory for public health policy,” comments Jen Heitel Yakush, director of public policy for the Sexuality Information and Education Council of the United States (SIECUS). “Strides can be made in the HIV/AIDS response without turning anyone into an outcast. This ruling ensures that the commendable work of health organizations will not be crippled by stigmatizing policies.”

Click here to view all July 2011 Policy Updates