Bad Health, Bad Law

Last Tuesday, the U.S. Department of Health and Human Services (HHS) released regulations implementing the anti-prostitution pledge requirement, which undermines HIV/AIDS programs around the world and violates First Amendment free speech protections. The regulation forces care and service providers to stigmatize the very sex workers they are trying to reach as a condition of getting U.S. funding.

The requirement, originally included in the law authorizing the President’s Emergency Plan for AIDS Relief (PEPFAR), states that any organization that receives U.S. money must have a policy “opposing prostitution” – a term that has never been defined.  Because an organization must adopt an organizational policy, the pledge controls all funds, not just those from the U.S. government.

Under the Bush Administration, the pledge was not enforced against U.S. NGOs for the first two years after it was adopted because the Department of Justice (DOJ) warned that it was constitutionally suspect.  DOJ also advised Congress that a similar provision of the Trafficking Victims Protection Act “raises serious First Amendment concerns and may not withstand judicial scrutiny.”   In an undoubtedly political maneuver, however, they reversed that opinion and began to enforce the pledge against U.S. NGOs in 2005.  The Obama Administration had the opportunity to set things right by again declaring the requirement unconstitutional.  Instead, they have now embraced bad policy, and bad public health.

Numerous organizations have spoken out against the pledge, including InterAction and the Global Health Council.  The organizations, along with an Alliance for an Open Society and Pathfinder, are challenging the requirement in court.  Represented by the Brennan Center, they argue that it undermines urgently needed HIV prevention programs and violates the free speech guarantees of the U.S. Constitution. The U.S. district court has twice ruled that the pledge is unconstitutional and violates the First Amendment.  A preliminary injunction prohibits USAID and HHS from enforcing the pledge requirement against the plaintiff organizations and protects U.S.-based members of the Global Health Council and InterAction.

The new regulation is a step in the wrong direction.  A growing body of research finds that sex workers’ high risk of HIV infection is due in part to their marginalized and illegal status which thwarts access to health care services and government benefits, and makes them vulnerable to police abuse and exploitation.  Nongovernmental organizations report that almost half of countries surveyed have laws that impede delivery of HIV/AIDS services to sex workers. Scarce resources exacerbate the poor attention to their health needs.  UNAIDS estimates that less than one percent of the global funding on HIV/AIDS prevention is spent on HIV and sex work.

The new regulations were intended to provide groups with the ability to keep government funding controlled by the pledge separate from their own funds.  But the Obama Administration’s proposed “solution” set forth in the new regulations literally requires groups to create, incorporate and manage entirely new organizations -- separate facilities, staff, management, equipment, and board members.  Much less burdensome regulations have been used in similar cases but the Obama Administration has rejected them in favor of these draconian rules with no explanation whatsoever.  Finally, the guidelines still utterly fail to clear up any of the widespread confusion regarding which privately funded speech and activities are prohibited.

For further analysis, see the Brennan Center’s recent memo.