This question and answer session with Rebekah Diller, the deputy director of the Justice Program at the Brennan Center for Justice at the New York University School of Law, discusses the anti-prostitution pledge faced by grantees of the U.S. President’s emergency Plan for AIDS Relief (PEPFAR).
What is the anti-prostitution pledge (also known as the Anti-Prostitution Loyalty Oath or APLO)? The pledge is an unconstitutional law passed by Congress in 2003 that requires all groups participating in the PEPFAR program to pledge their opposition to prostitution. The law requires participating groups, most of which are independent nongovernmental organizations (NGOs), to adopt the government’s point of view on prostitution and to censor their speech related to sex work even when using private funds. The pledge takes aim at some of the most effective programs for combating HIV, such as those that organize sex workers and advocate for legal changes necessary to promote HIV prevention among vulnerable groups.
Explain how the lawsuit AOSI v USAID emerged from this pledge? For the first year and a half after its passage, the Bush administration didn’t enforce the pledge against U.S. groups due to First Amendment problems. Then, in 2005, the administration signaled that it would reverse course and require even U.S.-based NGOs to espouse this position if they wanted to be eligible for HIV/AIDS funding. Our clients attempted to negotiate some resolution that would permit them to continue their privately funded work and retain their organizational independence but the implementing agencies wouldn’t agree. We then filed suit in 2005 on behalf of the Alliance for Open Society International and Pathfinder International. Two leading membership organizations — Global Health Council and InterAction — later joined the challenge as well in order to protect their NGO members.
What has happened with this under the Obama administration? Did you expect this issue to resolve itself under the new administration and what has the administration’s response and or action been?We had hoped that the Obama administration would do the right thing and stop enforcing the pledge domestically. But they didn’t. Instead, they’ve tinkered with the implementation a bit but failed to address the constitutional problems. They’ve also failed to give groups in the field any basic guidance about what the pledge forbids. As a result, groups are retreating from doing outreach to sex workers because they fear they will be accused of violating the law. We hope the administration will revisit this approach, which is so out of line with its stated public health goals.
What was the most recent ruling? The most recent ruling came from the district (or trial-level) court in August 2008. That ruling evaluated new implementing guidelines that the Bush administration issued in 2007. The guidelines purported to give groups a channel through which to exercise their First Amendment rights but, as the district court found, those guidelines did not cure the constitutional problems. The court held that the pledge continued to violate the First Amendment and prohibited the government from enforcing the pledge against most U.S.-based NGOs.
Explain to me what is at stake here? Will the prosecuting organizations lose their PEPFAR funding if they do not succeed? Could it retroactively affect funding? At stake is the ability of some of the leading health and development organizations to continue to participate in the PEPFAR program without compromising their integrity and public health missions. Due to the district court order, groups have been able to continue to participate in PEPFAR without being bound by the pledge. If the district court decision were reversed on appeal, they would have to comply with the pledge as a condition of their funding.
What is the next step? An appeal was just argued at the federal appeals court in New York in December. We are waiting for a decision. It’s impossible to predict the outcome. But our case is strong, particularly because the Bush administration itself initially shared our concern that the pledge requirement is unconstitutional.
How did The Brennan Center for Justice get involved in this issue? We have long championed the First Amendment rights of non-profit organizations that partner with government. Often, the most important voices in a debate are those that actually implement government programs and can speak from experience as to how policy plays out on the ground. We all lose out when government tries to silence those voices.