Requiring U.S.-based nongovernmental organizations (NGOs) to pledge their opposition to prostitution and sex trafficking as a condition of eligibility for global HIV/AIDS funding is unconstitutional, according to two federal court rulings in May. "The Supreme Court has repeatedly found that speech, or an agreement not to speak, cannot be compelled or coerced as a condition of participation in a government program," wrote Judge Victor Marrero of the U.S. District Court for the Southern District of New York in a case brought by the Alliance for Open Society International (AOSI) and Pathfinder International. In Washington, DC, U.S. District Court Judge Emmet G. Sullivan deemed the policy unconstitutional on similar grounds in a case brought by DKT International.
The antiprostitution litmus-test requirement was written into a 2003 law governing U.S. global HIV/AIDS efforts (related article, March 2005, page 12). Initially, the Justice Department applied it only against foreign NGOs, precisely because of the implications for U.S.-based organizations' free-speech rights. In 2005, reportedly after prodding from social conservatives, the administration changed course and began to apply the policy to U.S. NGOs as well.
HIV prevention and treatment advocates argue that the policy forces NGOs to take a position against prostitution and sex trafficking even when doing so is irrelevant to their program—for instance, if they work only in hospitals to prevent HIV transmission from pregnant women to newborns. And for NGOs that do direct their efforts to preventing HIV among sex workers, an extremely high-risk group, it compels them, in effect, to rebuke the women they are seeking to help.
The rulings could have wide implications, explained Rebekah Diller, attorney for AOSI and Pathfinder. "As nonprofit organizations partner with government to address social problems, it should be clear that what counts is whether they do the work, not whether they are willing to espouse ideological positions." Indeed, NGOs such as Pathfinder that also provide family planning services immediately recognized the parallels with another administration litmus test, the "Mexico City" antiabortion gag rule. They are challenging the constitutionality of the antiprostitution pledge on its own merits and also in order to preempt any plan to expand the gag rule to U.S.-based organizations.
Whether these rulings will hold is, of course, uncertain. Even if they do, and the requirement can no longer be applied to U.S.-based groups, foreign NGOs have no U.S. constitutional protections and still would have to comply.—Susan A. Cohen.