AOSI v. USAID
Court Cases

– 08/08/08

Challenging Global AIDS Funding Restrictions

 

AOSI v. USAID concerns a requirement that public health groups receiving U.S. funds under the U.S. Leadership Against HIV/AIDS, Tuberculosis and Malaria Act pledge their opposition to prostitution in order to continue their life-saving HIV prevention work. Under this "pledge requirement," recipients of U.S. funds are forced to censor even their privately funded speech regarding the most effective ways to engage high-risk groups in HIV prevention.

In the Brennan Center's second challenge to the government's anti-prostitution pledge requirement, filed on September 23, 2005 in the U.S. District Court for the Southern District of New York, the Center represents the Alliance for Open Society International (AOSI), its affiliate, the Open Society Institute, and Pathfinder International.

On May 9, 2006, Judge Victor Marrero issued a landmark opinion declaring that the pledge requirement violates the First Amendment rights of plaintiffs AOSI and Pathfinder International.

In recognition of the fact that the government would otherwise have eliminated a lifesaving USAID funded program to fight HIV/AIDS that AOSI operates in Central Asia, AOSI signed “the pledge” in August, and then sued USAID to secure its own First Amendment and statutory rights to engage in a range of privately financed activities to fight HIV/AIDS. OSI, an entity that receives no USAID funds, joined the lawsuit to ensure that USAID would not seek to penalize either AOSI or OSI for any of OSI’s privately financed activities. Finally, Pathfinder joined the lawsuit to protect its ability to provide urgently needed care and preventative treatment to at-risk populations around the globe. The U.S. Department of Health and Human Services and the U.S. Centers for Disease Control and Prevention also are defendants in the case.

In August of 2006, the government appealed the district court's decision. In June 2007, the U.S. Court of Appeals for the Second Circuit heard oral arguments in the case. During oral argument, the government's attorney informed the court and the plaintiffs that USAID and HHS intended to issue guidelines that would permit Global AIDS Act grantees to form privately funded affiliates that could operate free of the pledge requirement.

On July 23, 2007, USAID and HHS issued draconian guidelines that theoretically permit AIDS Act recipient organizations to establish affiliate organizations that may operate free of the pledge requirement. However, the guidelines require an unprecedented degree of separation between the organization that receives federal funds and the privately funded affiliate.

The Second Circuit panel hearing the AOSI case ordered the parties to submit additional, post-argument briefing on how Defendants' guidelines affect the constitutional and statutory claims in the case. The Plaintiffs' initial and reply briefs as well as the Defendants' initial and reply briefs were submitted to the court in September and October of 2007. 

In November 2007, the Second Circuit panel issued a summary order sending the case back to the District Court, keeping the preliminary injunction intact, and ordering the case to return to the same Second Circuit panel after the District Court rules.

The case is currently pending at the District Court. In February 2008, the plaintiffs requested leave to file an amended complaint to add Global Health Council and InterAction -- which are membership organizations of international development and public health groups -- as plaintiffs. At the same time, Global Health Council and InterAction moved for a preliminary injunction on behalf of those members. On August 8, 2008, the district court granted both motions.  For more information on the decision, read our Q&A.

HHS put its July 2007 guidelines through a notice and comment process in spring 2008. The Brennan Center, OMB Watch, and U.S. Representatives Waxman and Lee all filed comments suggesting extensive revisions. The agency has not yet issued guidelines revised in response to the comments. The court has indicated that it will wait to issue a final ruling on the constitutionality of the guidelines until after the revised guidelines issue.

For more information on the anti-prostitution pledge requirement, read Another Example of Shoddy Legal Reasoning by Laura K. Abel.


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Tags: Justice, Non-Profit Rights