OSI Sues USAID over Dangerous Public Health Policy

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The Open Society Institute, along with its affiliate the Alliance for Open Society International, filed a lawsuit today against USAID to challenge its unconstitutional and dangerous policy of requiring grantees to sign a pledge opposing prostitution. Failure to endorse this loyalty oath means health workers across the world striving to stop the spread of HIV/AIDS could lose funding and be forced to abandon life-saving programs.

The United States has made a historic and laudable commitment to combat HIV/AIDS. But these funding restrictions threaten to render these achievements ineffective. More than 40 million people are living with HIV/AIDS and five million became infected in 2004.

The USAID pledge requirement undermines efforts to provide life-saving services and information to sex workers, who are at significant risk of infection and can also transmit HIV to others. In many countries, the epidemic is concentrated among sex workers and reaching them with prevention services will help avert a wider epidemic.

Sex workers face harassment, violence, and discrimination. Severe stigmatization and threat of fines or incarceration make sex workers less able to access needed health and social services. Requiring health workers to condemn the people they are trying to help will intensify the stigma and fears among this vulnerable population and make it harder to engage them effectively.

The AOSI and OSI lawsuit charges that the pledge requirement is unconstitutional, under well-established Supreme Court case law, because it requires private organizations to adopt the government’s point of view in order to receive funding. The Justice Department under the Bush Administration originally reached this same conclusion, only recently reversing its view. Although the pledge requirement was passed by Congress in 2003, it was not until this year that USAID sought to implement it with U.S.-based organizations.

The suit also alleges that the pledge requirement is unconstitutionally vague and therefore allows the law to be applied arbitrarily. It is unclear how organizations are supposed to “oppose prostitution,” and the uncertainty created by this provision creates a chilling effect on efforts to stop the spread of HIV/AIDS. Despite repeated requests from OSI and other groups, USAID has declined to give any guidance as to what constitutes compliance with the pledge. In an attempt to keep its USAID-funded HIV prevention programs alive in Central Asia, AOSI this summer signed the anti prostitution pledge, while noting its objections.

On two previous occasions, USAID refused to indicate whether AOSI’s policy met the pledge requirement. AOSI has stated that it believes that trafficking and sex work do harm both to the individuals directly involved and to others in various ways.

AOSI is administering a government grant awarded in 2002 to implement USAID’s Drug Demand Reduction Program in Central Asia, where HIV/AIDS is spread overwhelmingly through injection drug use and left unchecked will have a devastating social and economic impact. Since sex workers are at increased risk of using drugs, they are a prime target for this program’s interventions. The programs provide testing for HIV and other infectious diseases, drug treatment and other services to help people stop using drugs, and education and counseling to sex workers. Outreach work is crucial to curbing the HIV epidemic and is consistent with evidence-based public health best practices.

The Open Society Institute, which helps fund AOSI, is a leader among groups working to stem the spread of HIV/AIDS in the former Soviet Union where the epidemic is one of the fastest growing in the world. OSI also implements a range of initiatives to support the rule of law, education, public health, and independent media. OSI works to build alliances across borders and continents on issues such as combating corruption and rights abuses.

AOSI and OSI are urging that the pledge requirement be lifted so that aid groups and the government can continue to work together to save lives.