The US Anti-Prostitution Pledge: First Amendment Challenges and Public Health Priorities

In January 2003, United States President George W. Bush announced the President’s Emergency Plan for AIDS Relief (PEPFAR), the appropriation of $15 billion dollars for programs to combat the global HIV/AIDS epidemic, in his State of the Union address. Congress responded with the legislative authorization for the plan, the United States Leadership Against Global HIV/ AIDS, Tuberculosis, and Malaria Act of 2003, and assigned seven primary implementing agencies, including the United States Agency for International Development (USAID) and the United States Department of Health and Human Services (HHS) [1]. Although the Act will expire in fi scal year 2008, the President has called on Congress once again to extend the plan for another fi ve years and double the funding to $30 billion [2]. Within the detailed plan, Congress expressed concern about the social, cultural, and behavioral causes of HIV, specifi cally naming prostitution and sex traffi cking as among the behavioral forces behind the spread of the virus. This legislation advanced a new policy goal for the US: the global eradication of prostitution [1]. Requirements for grantees were based on this explicit link between HIV prevention and the eradication of prostitution. In order to receive AIDS funds from the US, all grantees must have (1) a policy explicitly opposing prostitution and sex traffi cking and (2) certifi cation of compliance with the “Prohibition on the Promotion and Advocacy of the Legalization or Practice of Prostitution or Sex Traffi cking,” which applies to all organization activities, including those with funding from private grants [1,3]. “The Prostitution Pledge,” as this requirement is often called, has evoked strong and mixed reactions. It has led some grantees, most prominently the government of Brazil, to reject US AIDS dollars altogether [4]. But it is the breadth of the requirement and its application to privately funded activities that has led to legal challenge of its constitutionality. One ongoing lawsuit involves the Alliance for Open Society International (AOSI), the Open Society Institute, and Pathfi nder International versus USAID, HHS, and the Centers for Disease Control and Prevention’s Global AIDS Program. AOSI and the Open Society Institute fi led a complaint against the US government on September 23, 2005 and moved for a preliminary injunction arguing that the pledge policy requirement cannot restrict activities supported by private funds [5]. Both cases were preceded by a similar case from DKT International, a nonprofi t organization that provides family planning and HIV/AIDS prevention programs internationally [6]. The Brennan Center for Justice at NYU School of Law, the legal counsel representing AOSI, asked our Center for Public Health and Human Rights at Johns Hopkins to review the existing The US Anti-Prostitution Pledge: First Amendment Challenges and Public Health Priorities Nicole Franck Masenior, Chris Beyrer