A Bush-era rule that forbids some federal AIDS money to go to groups unless they “explicitly” oppose prostitution and sex trafficking is heading to the U.S. Supreme Court on Monday.
The “prostitution pledge” was added to the law that established the U.S. President’s Emergency Plan for AIDS Relief to ensure that the U.S. government didn’t unwittingly fund or promote commercial sex activities as part of its battle against the spread of HIV/AIDS.
The pledge has been argued in two court cases that resulted in opposite rulings: In 2007, the U.S. Court of Appeals for the District of Columbia Circuit upheld the pledge as constitutional; in 2011, the 2nd U.S. Circuit Court of Appeals struck down the pledge.
On Monday, Deputy Solicitor General Sri Srinivasan is scheduled to argue on behalf of the law and the U.S. Agency for International Development, the Department of Health and Human Services and the Centers for Disease Control and Prevention.
The government argues that Congress placed two rational limitations on use of the HIV/AIDS funds no funding to promote or advocate for sex work, and no funding to groups that didn’t “explicitly” oppose prostitution and sex trafficking.
David W. Bowker, who is representing clients including the Alliance for Open Society International, a group funded by billionaire George Soros, will ask the high court to uphold the 2nd Circuit Court’s ruling and strike down the pledge.
The pledge makes funding recipients go through “an ideological purity test” and then forces them “to adopt and express the government’s viewpoint as their own,” said a brief filed by the Alliance for Open Society International, Pathfinder International, Global Health Council and InterAction.
Such restrictions force AIDS-fighting groups to condemn one of the very populations they seek to serve, the groups said, noting that the pledge does not apply to other government-funded public health programs.
The U.S. Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003, which includes the $4.5 billion President’s Emergency Plan for AIDS Relief, was created and passed during the George W. Bush administration.
The pledge was designed to ensure that “pimps and brothel owners” didn’t become partners with the U.S. government, via their subcontracts with nongovernmental agencies, Rep. Christopher H. Smith, New Jersey Republican, argued a few years ago when the pledge language was being debated on Capitol Hill.