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New Federal Regulations on HIV/AIDS Funds Restrict Free Speech

Statement by the Open Society Institute and Pathfinder International
May 13, 2010 – On this day, new federal regulations went into effect that force care and service providers to stigmatize the very sex workers they are trying to reach with HIV-prevention programs. Under the government rule, commonly known as the "anti-prostitution pledge requirement," public health groups receiving U.S. global HIV funds must pledge their opposition to prostitution in order to continue their life-saving HIV prevention work. The requirement forces organizations to censor even their privately funded speech regarding the most effective ways to engage high-risk groups in HIV prevention. More…

Even though the new regulations are largely unchanged from the Bush Administration, representatives Chris Smith (R-NJ) and Joe Pitts (R-PA) took the opportunity to play politics. At a press conference this morning, they accused the Obama Administration of rolling back the regulations and working "hand in glove" with traffickers.

The reality is that:

  • The Bush Administration refused to enforce the pledge requirement against U.S.-based NGOs for the first two years because the Department of Justice warned it was constitutionally suspect.
  • Unfortunately, the Obama Administration regulations largely mirror those released by the Bush Administration in its final days in office. The new and old regulations have the same negative effect on funding recipients. Under both versions, recipients must affirm their agreement with the administration's policy on prostitution and maintain an undefined amount of separation from any organization that engages in an undefined list of activities the administration may deem inconsistent with opposing prostitution.
  • The Obama Administration is defending the requirement in court, much to the dismay of civil liberties advocates.

While representatives Smith and Pitts believe the regulation does not go far enough to restrict free speech, we note that the regulation goes too far. The Alliance for Open Society International (AOSI), Pathfinder International, Global Health Council, and InterAction have sued the U.S. government for violating first amendment free speech guarantees.

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.

In December 2009, several dozen public health and humanitarian groups, including the Alliance for Open Society International and Pathfinder International, submitted comments to the Department of Health and Human Services expressing concerns about the proposed rule, contending that it failed to allay constitutional concerns and disregards previous decisions in AOSI v. USAID.

The prostitution pledge requirement is bad public health. Sex workers are at high risk of HIV infection. Stigma and discrimination impede access to services and encourage violence by police and others. UNAIDS estimates that less than one percent of the global funding on HIV/AIDS is spent on preventing HIV infection among sex workers.

Rather than encouraging greater discussion about how to address this problem, the pledge requirement muzzles NGOs and other service providers and must be repealed.