The Supreme Court of the United States has agreed to hear an important case concerning the right of the Federal Government to impose restrictions on agencies that receive funding for overseas anti-HIV and AIDS programs. Current Federal law restricts financial assistance to any agency that refuses to adopt policies opposing prostitution and sex trafficking.
The agencies involved in the suit have stated their opposition to the requirement on several grounds. They claim it forces them to adopt political positions, limits their right of free speech and interferes with their ability to dedicate all their resources to fighting the deadly disease.
The restrictions are part of the law passed in 2003 that authorized billions of dollars to fund the effort to control aids and other infectious diseases around the world. The US Court of Appeals for the 2nd Circuit ruled against the government’s regulations for the Aids relief agencies. The government chose to appeal the ruling and the case is now in the hands of nation’s highest court.
In Washington, Solicitor General Donald B. Verrilli Jr. defended the U.S. Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003. He said the law is designed to require nongovernmental partners to comply with a policy that addresses the behavioral risks that lead to the spread of the disease.
Various groups doing the often dangerous and frustrating work on the ground, including Pathfinder International and InterAction, feel the 2003 law is forcing them to adopt a position that will intimidate and alienate the very people they are trying desperately to reach.
In their brief to the Appeals Court, the Aids groups stated their clear understanding of the harm done by prostitution and sex trafficking, but they believe that promoting policies for the United States government would interfere with their ability to deal with often hostile foreign governments, while trying find effective treatments to control and cure a disease that has ravaged much of the Third World.
Speaking for The US Court of Appeals, Judge Barrington Parker wrote the following as part of the 2 to 1 decision in favor of the Aids Groups:
“Compelling speech as a condition of receiving a government benefit cannot be squared with the First Amendment. Furthermore, the targeted speech, concerning prostitution in the context of the international HIV/AIDS-prevention effort, is a subject of international debate. The right to communicate freely on such matters of public concern lies at the heart of the First Amendment.”
Issuing a carefully worded statement, the groups warned the Federal restrictions were so broadly written they might limit the activities of the agencies when using non-governmental funds:
“The broadly worded restriction would compel them to adopt and espouse as their own a certain viewpoint, and to prohibit inconsistent speech and activities, even if undertaken with private funds outside the scope of any federally funded program.”
In a final note, Supreme Court Justice Elena Kagan recused herself from the case, possibly due to having worked on the matter when she was Solicitor General for the Obama Administration. The case before the court is officially U.S. Agency for International Development v. Alliance for Open Society International.