Let’s make no mistake: requiring that affiliates of US organizations abroad oppose “prostitution and sex trafficking” upon receiving US foreign assistance funding for HIV/AIDS, is a violation of the First Amendment.  Not only that, but to impose such a position on organizations implementing HIV/AIDS programming undermines rights-based approaches to HIV prevention, testing, treatment, care and support. For nongovernmental organizations and their affiliates working with and supporting commercial sex workers, who are at high risk of acquiring HIV and less likely to be able to access testing and treatment in many parts of the world, such a requirement only fuels stigma and discrimination and runs counter to HIV prevention efforts and programming to support those living with HIV.

While the United States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003 (otherwise known as the President’s Plan for Emergency AIDS Relief) contains the requirement that organizations receiving funds to fight HIV/AIDS have such a policy, in 2013 the Supreme Court rightly ruled that such a requirement violates the First Amendment.  Unfortunately, that decision only applied to nongovernmental organizations based in the United States and not their affiliates overseas, which have had to comply with this coercive requisite for funding.

This week, the US Supreme Court will again hear arguments in United States Agency for International Development v. Alliance for Open Society International, Inc. to address the following question: can the government enforce the requirement against the foreign affiliates of US nongovernmental organizations receiving PEPFAR funds? The answer should be clear and is no. “Imposing such a requirement on US nongovernmental organizations’ affiliates should be ruled to be a violation of the First Amendment and compromises organizational credibility, public health practice, and human rights, “said Advocates for Youth’s President, Debra Hauser.