Challenging Global AIDS Funding Restrictions
Note: The Brennan Center no longer works on this case. For more information, please contact Laura Abel at Cardozo Law School at laura.abel@yu.edu or 212–790–0860.
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 (“Leadership 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 espouse a government-mandated point of view as their own and censor even their privately funded speech regarding the most effective ways to engage high-risk groups in HIV prevention.
The Brennan Center represents the Alliance for Open Society International (AOSI), the Open Society Institute, Pathfinder International, the Global Health Council and InterAction in a challenge to the pledge requirement, filed originally on September 23, 2005 in the U.S. District Court for the Southern District of New York.
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 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 the U.S. Department of Health and Human Services (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 ruled.
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 to prohibit the government from enforcing the pledge against their U.S.-based 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. On the eve of the Bush Administration’s departure, HHS issued its final regulation, which largely ignored these comments and maintained the overly stringent separation requirements between organizations that receive federal PEPFAR funds and their privately funded affiliates. The regulation went into effect on January 20, 2009, the day of President Obama’s inauguration.
In October 2008, the government defendants appealed the District Court’s August 2008 order to the U.S. Court of Appeals for the Second Circuit. On January 15, 2009, the government filed its brief, asking the Court to overturn both the 2006 and 2008 preliminary injunction orders. The appeal was later put on hold as the government defendants revisited their implementing regulations.
On October 15, 2009, the Brennan Center filed a FOIA lawsuit seeking the 2004 U.S. Office of Legal Counsel opinion stating that the anti-prostitution pledge requirement is unconstitutional (see the Complaint and Exhibits filed). Three U.S. government agencies are named in the suit—the Department of Justice, the Department of Health and Human Services, and USAID—as they have improperly withheld documents the the Brennan Center has sought for almost four years. The documents relate to the Bush Administration’s changing views on the constitutionality of the pledge requirement and have been determinative of how the Administration enforced the requirement. For more on the FOIA suit, click here.
On November 23, 2009, HHS issued a new proposed regulation for implementing the Leadership Act’s pledge requirement. The Brennan Center, on behalf of its clients, submitted comments on the proposed regulation, stating thatit did not cure the pledge’s constitutional violations and disregarded previous decisions in AOSI v. USAID. Twenty-one leading humanitarian, public health, and human rights organizations submitted comments expressing their concerns with the proposed regulation’s implications for enforcement of the pledge requirement, as did the Center for Health and Gender Equity and Human Rights Watch and U.S. Representatives Waxman and Lee. Leading HIV/AIDS physician-scientists submitted comments describing the chilling effect that the proposed regulation would have on efforts to reach populations at high risk for HIV infection. Over 170 individuals and grassroots organizations also signed onto comments that describe the proposed regulation as “harsh” and “unworkable.” See all the comments that were submitted here.
After reviewing these comments, HHS issued its final regulation on April 13, 2010. The final regulation is little changed from the proposed version and requires organizations receiving Leadership Act HIV/AIDS funds from HHS to agree, as a condition of receiving that funding, “that they are opposed to the practices of prostitution and sex trafficking because of the psychological and physical risks they pose for women, men, and children.” The regulation also requires that recipients of HHS Leadership Act HIV/AIDS funds maintain a substantial degree of separation from any “affiliated organization that engages in activities inconsistent with the recipient’s opposition to prostitution and sex trafficking . . .,” though the regulation fails to define “affiliated organization” or the prohibited activities and sets no firm rules on the degree of separation that will be considered sufficient. This final rule went into effect on May 13, 2010.
HHS and USAID continued their appeal of the preliminary injunction and submitted their opening brief to the Second Circuit on May 11, 2010. The Plaintiffs submitted their Appellees’ brief on September 8, 2010.The government defendants submitted their Reply on September 27, 2010. Oral argument was held on December 9, 2010.
In a tremendous victory for public health and free speech, the Second Circuit panel on July 7, 2011 held that the pledge requirement violates the First Amendment rights of the plaintiff non-governmental organizations. Characterizing the pledge as a “bold combination” of an affirmative speech requirement and a viewpoint-based restriction, the Court held that the pledge could not withstand heightened First Amendment scrutiny. The Court also held that the government’s implementing regulations – which purported to provide an alternative channel for recipients to speak – did not cure the compelled speech violations.
The government petitioned for a rehearing en banc on September 6, 2011. The plaintiffs opposed the motion and submitted their petition on October 13, 2011. The court continued its commitment to free speech and public health by denying the government’s motion for rehearing en banc on February 2, 2012. As a result of this decision, which affirmed the District Court’s preliminary injunctions, the government is prohibited from enforcing the pledge requirement against most U.S.-based recipients of Leadership Act funds. For more information on the decision, read our Q & A.
As a result of this decision, which affirmed the District Court’s preliminary injunctions, the government is prohibited from enforcing the pledge requirement against most U.S.-based recipients of Leadership Act funds. For more information on the decision, read our Q & A.
For more information on the anti-prostitution pledge requirement, read Another Example of Shoddy Legal Reasoning by Laura K. Abel.