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The U.S. government cannot require organizations fighting AIDS with USAID grant money to oppose prostitution, according to the Second Circuit Court of Appeals. The ruling may lead to a Supreme Court case about First Amendment rights.

Evangelical NGOs say the ruling is unlikely to affect their operations, although the case does touch on important principles.

The 2003 Leadership Act, which authorized PEPFAR in fighting HIV/AIDS, tuberculosis, and malaria, states that grantees cannot use government money to promote legalizing prostitution. It also requires "a policy explicitly opposing prostitution and sex trafficking." The second requirement has been the controversial one.

The Second Circuit split 2-1 in its July 6 ruling. It said the requirement amounted to discrimination against organizations that do not embrace the government's viewpoint. The dissenting judge defended the clause as constitutional. He said that it "allows the government to subsidize the transmittal of a message it has concluded is part of its preferred method of fighting HIV/AIDS."

The D.C. Circuit Court of Appeals upheld the provision in 2007. The conflicting decisions apply in different regions and may not be reconciled if the government does not seek a Supreme Court review.

World Concern received Leadership Act grants in 2004. Senior director for international programs Meredith Long said there are two major issues at play: (1) the relationship between prostitution and sex trafficking, and (2) how requiring an official statement could constrain work with commercial sex workers.

NGOs may use harm reduction strategies—such as distributing condoms to prostitutes—to prevent the spread of HIV. To do this, they must have access to sex workers.

Some evangelical ...

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September 2011

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