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Supreme Court on AIDS Funding

By on June 21, 2013

The U.S. Supreme Court has struck down a George W. Bush-era law requiring non-profit organizations to adopt an anti-prostitution policy in order to obtain federal funding for HIV/AIDS programs abroad. Chief Justice John Roberts wrote in his majority opinion that the 2003 law violated the First Amendment free speech rights of non-governmental organizations that work on HIV/AIDS prevention.

The court vote was 6-2 with Justice Elena Kagan recused, most likely due to her previous role as solicitor general in the Obama administration, when she may have been involved in the litigation. The law barred funding for organizations that operate programs overseas but do not have a blanket policy opposing prostitution and sex trafficking.

The organizations challenging the provision did not want to take a stand on prostitution. They said the law interfered with their work providing advice and counseling to prostitutes about the risks of HIV infection. The non-profit world was divided, with 46 groups, many of which focus on women’s rights, supporting the law.

The Alliance for Open Society International and Pathfinder International – non-governmental organizations (NGOs) that receive funding for overseas HIV/AIDS prevention – sued in 2005, citing the guarantee of free speech in the U.S. Constitution’s First Amendment.

“Condemnation and alienation are not public health strategies,” said Marine Buissonniere, director of the Open Society Public Health Program, one of the groups that challenged the policy. “The pledge ignores years of evidence that sex workers are critical partners in the fight against AIDS,” she added.


In his opinion, Roberts noted that under Supreme Court precedent, the government can set conditions on funding that relate to the specific way the money is spent but cannot “seek to leverage funding to regulate speech” that falls outside the limits of the program.

“The case is not about the government’s ability to enlist the assistance of those with whom it already agrees,” Roberts said. “It is about compelling a grant recipient to adopt a particular belief as a condition of funding.”

In this instance, the condition constituted “the affirmation of a belief that by its nature cannot be confined within the scope of the government program,” meaning it violates the First Amendment, he wrote.

Justices Antonin Scalia and Clarence Thomas dissented. The case is Agency for International Development v. Alliance for Open Society International, U.S. Supreme Court, No. 12-19.

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