Federal judge, Victor Marrero, ruled on August 8, 2008 that the anti-prostitution pledge requirement included in the U.S. Leadership Against HIV/AIDS Tuberculosis and Malaria Act (“the Global AIDS Act”), remains unconstitutional despite the federal government’s efforts to remedy the problems.

Implemented by the United States Agency for International Development (USAID) and the U.S. Department of Health and Human Services (HHS), the Act, commonly known as the President’s Emergency Plan for AIDS Relief (PEPFAR), requires funding recipients to adopt “a policy explicitly opposing prostitution and to refrain from engaging in speech or conduct that is “inconsistent with an opposition to prostitution.”[i] The mandate applies to organizations’ participation in speech or conduct even when such activity is financed by their private funds.

Advocates have argued that such a pledge violates the First Amendment and hinders the ability of organizations to engage in outreach toward commercial sex workers in order to prevent the transmission of HIV. This prevention strategy has been largely supported by the public health community for its effectiveness in combating AIDS.[ii]

In May 2006, Judge Marrero ruled that the pledge requirement violated the First Amendment rights of two public health organizations, Alliance for Open Society International and Pathfinder International, “by restricting their privately funded speech and forcing them to adopt the government’s viewpoint.” [iii]

In response, USAID and HHS established guidelines to provide funding recipients with a way to conduct work advocating for the use of prevention practices among commercial sex workers with the use of an organization’s private funds. These guidelines require organizations to create “legally, financially, and physically separate affiliates with separate governance, management and staff” in order to use their private funds for these purposes.

In his August ruling, the judge granted permission to InterAction, an alliance of American humanitarian organizations, and Global Health Council, the largest alliance of global public health organizations, to join the lawsuit. These two organizations argued that despite the new guidelines the pledge requirement imposes a “sweeping speech restriction” that impedes the ability of their member organizations to conduct life-saving HIV-prevention work.

In his court decision on August 8^th, Judge Marrero concluded that the guidelines did not remedy the unconstitutionality of the original requirement. Furthermore, he ruled that the established guidelines were more taxing than necessary on recipient organizations for the purpose of upholding the government’s interests. 

Dr. Nils Daulaire, president of the Global Health Council, said that the ruling “is an important step in upholding the rights of free speech among organizations working to improve health for everyone, even those in socially and politically ostracized groups.” [iv]

HHS is currently involved in its “notice and comment” process, in which it has the opportunity to review and revise the guidelines before instituting the final regulation. While there is no official deadline for the completion of this process, the Brennan Center states that the White House has asked for all final regulations to be issued by November 1^st.[v]

While the most recent ruling allows all U.S.-based members of InterAction and Global Health Council to conduct their work without adhering to the stipulated pledge requirement and its guidelines, non-U.S. based member organizations are still subject to the anti-prostitution mandate as they cannot receive the protections provided by the U.S. constitution. 

“The damage being done to comprehensive prevention efforts in countries as a result of this ideological nonsense must cease,” commented William Smith, vice president for public policy for the Sexuality Information and Education Council of the United States (SIECUS). “Our own research has shown, for example, that the pledge requirement is having a disastrous impact in Zambia, one of the focus countries in PEPFAR, and it is not an isolated case. This ruling is welcome news and shows we are making progress against the Bush Administration’s malfeasance,” said Smith.