WASHINGTON (CN) – A federal law that requires AIDS charities to take an “anti-prostitution pledge” if they want funding will go before the Supreme Court.
Nonprofit groups opposing the mandate have long argued that such a pledge costs them international credibility, compromises their institutional integrity, interferes with prevention outreach to sex workers and violates the organizations’ free speech rights.
Passed by Congress in 2003, the Leadership Act supported an international campaign to fight AIDS, tuberculosis, and malaria pandemics through the development of vaccines and treatments and partnerships between federal agencies and nongovernmental organizations.
A controversial subclause of the legislation states: “No funds made available to carry out this Act … may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.”
In 2005, the nonprofit groups Alliance for an Open Society International and Pathfinder International sued the agencies implementing the funding.
After a federal judge blocked the pledge with a preliminary injunction, the United States Agency for International Development (US-AID) and U.S. Department of Health and Human Services appealed on the basis of less restrictive guidelines they were formulating.
But the trial court upheld its original injunction in 2008, and a divided 2nd Circuit affirmed in July 2011.
“Compelling speech as a condition of receiving a government benefit cannot be squared with the First Amendment,” according to the majority opinion authored by Judge Barrington Parker. “Here … silence, or neutrality, is not an option for plaintiffs. In order to avoid losing Leadership Act funding, they must declare their opposition to prostitution.”
In his dissent, Judge Chester Straub emphasized that lawmakers wrote the program with opposition to prostitution in mind.
“Congress did not determine in the Leadership Act that it wished to fight HIV/AIDS through a strategy of remaining neutral on the issue of prostitution,” Straub wrote. “Rather, it specifically wanted to ‘eradicate’ prostitution and other behavioral risks.”
The majority noted that prominent international health groups found this position to be self-defeating. The World Health Organization and Joint United Nations Programme on HIV/AIDS argue that reducing penalties for prostitution ranks “among the best practices for HIV/AIDS prevention,” the opinion said.
Straub noted that the D.C. Circuit favored the government’s point of view in an “almost identical” challenge to the Leadership Act in 2007.
He concluded by urging the Supreme Court to “set us straight.”
Per its custom, the Supreme Court did not issue any comment in granting the agencies certiorari on Friday. Justice Elena Kagan did not participate in the court’s consideration or decision of the petition.
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