SCOTUS Ruling Affects U.S. Funding for HIV/AIDS Fight

By Jane Coaston | June 26, 2013

The Supreme Court of the United States ruled last week on a case that could affect the President’s Emergency Plan for AIDS Relief (PEPFAR).

SCOTUS

It’s been a very big week in the United States, where the Supreme Court of the United States has issued crucial decisions on such issues as voting rights, same-sex marriage, and parental rights. But another decision, released last week, focused on the constitutionality of certain policy provisions related to sex workers and U.S. funding for HIV/AIDS prevention and care and treatment efforts around the world.

The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 – also known as the President’s Emergency Plan for AIDS Relief, or PEPFAR – authorized the U.S. government to fund nongovernmental organizations (NGOs) and their work to eliminate AIDS and other infectious diseases. But the original law had two provisions for organizations seeking funding:  (1) No funds “may be used to promote or advocate the legalization or practice of prostitution;,”; and (2) no funds may be used by an organization “that does not have a policy explicitly opposing prostitution.” Because of this second provision, the United States Agency for International Development (USAID) required recipients of PEPFAR funding to explicitly state that they opposed prostitution or risk not receiving financial backing.

A group of non-governmental organizations challenged this portion of law, arguing that the policy requirement violated the First Amendment. 

According to UNAIDS, 12 percent of female sex workers in 50 countries are living with HIV, and female sex workers are 13.5 times more likely to become infected.  Based on computer modeling studies from Kenya, researchers believe that sex workers and their clients make up almost a third of new HIV infections.  To battle HIV worldwide, preventing infections among sex workers is incredibly important.

In a 6-2 decision, the Supreme Court ruled that the U.S. government cannot dictate what nongovernmental organizations believe with regards to prostitution, saying that organizations need not “pledge allegiance to the government's policy of eradicating prostitution.”  The opinion goes on to say that “by requiring recipients to profess a specific belief, the [Anti-Prostitution] Policy Requirement goes beyond defining the limits of the federally funded program to defining the recipient.”

Jane Coaston is Media Relations Coordinator for the Foundation, based in Washington, D.C.