Saturday, August 16, 2008

USAID's anti-prostitution pledge as compelled speech

Since the initiation of the President's Emergency Plan for AIDS Relief (PEPFAR) in 2003, U.S. funds for international HIV/AIDS work have required that foreign grantee organizations adopt an "anti-prostitution pledge" (hereinafter APP), squarely opposing not just sex trafficking but prostitution, coerced or otherwise, and the legalization thereof. In 2005, the funding restriction was implosed on U.S. groups as well.

The policy is as follows:
(e) Limitation
No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to promote or advocate the legalization or practice of prostitution or sex trafficking. Nothing in the preceding sentence shall be construed to preclude the provision to individuals of palliative care, treatment, or post-exposure pharmaceutical prophylaxis, and necessary pharmaceuticals and commodities, including test kits, condoms, and, when proven effective, microbicides.
(f) Limitation
No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking, except that this subsection shall not apply to the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or to any United Nations agency.
(22 U.S.C. section 7631)
Even if an organization receive only a small fraction of its funding from USAID, all its activities are restricted. The APP has been assailed as deeply counterproductive to HIV/AIDS work, especially because adopting the APP may have the effect of alienating the sex workers grantee groups are trying to reach with education and services. It's been reported that some organizations have already scaled back planned outreach activities, for fear that anything other than a punitive approach to sex workers would be construed as "support for prostitution." (See these articles from RHRealityCheck for background and criticisms of APP). The policy has also been strongly criticized for equating all forms of prostitution with the abominable crime of human trafficking.

There is, perhaps, a similarity here with the recently reported Department of Health and Human Services proposal that would equate birth control with abortion, thereby allowing federal grant recipients to block women's access to contraception based on their religious views. Except, of course, that everyone agrees that human trafficking is a moral horror, whereas there is deep disagreement on abortion. The commonality is that both policies seek to equate something less widely opposed with something much more widely opposed.)

The APP has been challenged in both DC and New York federal courts as infringing First Amendment rights. There is a, of course, a long history of battles over speech-related restrictions on federal funds, with mixed results. In Alliance for Open Society International v. USAID, the New York district court issued a preliminary injunction in 2006 after finding that the APP was unconstitutional compelled speech.

On appeal, the government told the Second Circuit it was going to issue guidelines permitting grantees to set up a subsidiary organizations that would not have to comply with the APP. On that basis, the D.C. Circuit upheld the APP in DKT v. USAID, also relying on the government's representations that grantees would be able to engage in all the speech they wanted through a subsidiary.

Then, the government issued the guidelines (PDF). They require that, in order not to be bound by the APP, the subisidiary have completely separate facilities, staff and finances from the grantee. "Mere bookkeeping separation" is not enough. This goes further than funding restrictions in other federal funding programs, and creates serious practical hurdles for grantees who feel it is important to engage in programs not bound by the APP. To make things more exciting, whether there is sufficient organizational separation will be determined by the government on a case-by-case, totality-of-the-circumstances basis. Mmmm, vague-alicious.

The Second Circuit then sent the case back to the district court to consider the guidelines, leaving the injunction intact. Finding that these new guidelines were not all they were cracked up to be, the New York district court last week said that the APP was still impermissible compelled speech and was still enjoined (except with regard to plaintiff DKT, because the D.C. Circuit's decision was binding on it as a party to DKT v. USAID).

This is a major blow against the government, but the story continues. The government will have another chance to persuade the district court when the comment period is complete and the guidelines are finalized. There have been many critical comments, including from that champion of sexual health education, Rep. Henry Waxman. And even if the grantee organizations win, the APP will likely remain binding on foreign grantees.

Expect litigation to continue over the APP into the next year. While even a markedly more Democratic Congress may be unlikely to repeal the APP, what's more imaginable is a Democratic administration loosening the guidelines. We'll have to wait and see.


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