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 organizations, including International Justice Mission (IJM), say that they have found rescue and harm reduction to be complementary. Others believe the two strategies compete.

It is commonly argued that police activity in red-light districts undermines anti-HIV/AIDS work by provoking brothel owners to deny medical workers access. Holly Burkhalter of IJM disagrees. "We have found in our own work that police are able to rescue children and apprehend perpetrators without disadvantaging [prostitutes]," she said.

On the other hand, Jonathan Imbody, vice president of government relations for the Christian Medical Association (CMA), says harm reduction alone implicitly supports prostitution, and by extension, human trafficking.

Christian groups had not pushed for the 2003 requirement, but many (including the CMA) defended it when George Soros's Open Society Institute brought its lawsuit in 2005.

The CMA says the Second Circuit ruling strikes down a legal, effective health policy and could increase competition for USAID grants.

Related Elsewhere:

Previous coverage on HIV/AIDS includes:

No Child Left to Die | Half of all babies born with HIV die by age 2. Could we stop that by 2015? (November 29, 2010)
Progress Against AIDS Falters | Christians should make the moral case for sustaining aid programs. By Michael Gerson (November 29, 2010)
Prevention Wars | Christian activists question Global Fund's AIDS strategies. (August 1, 2006)

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