The Supreme Court has agreed to review a First Amendment dispute over whether the United States can force private health organizations to denounce prostitution as a condition to get AIDS funding.

The justices said Friday they will hear the government’s appeal of a lower court ruling that found the anti-prostitution pledge, in a provision of federal law, violated the health groups’ constitutional rights.

At issue is the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003. It requires groups seeking federal money to announce publicly that they oppose prostitution and sex-trafficking.

The government often attaches conditions to the receipt of federal funds, but the 2nd U.S. Circuit Court of Appeals in New York said the law went well beyond what is permissible.

Four organizations that work in Africa, Asia and South America filed a constitutional challenge to the law in 2005. A federal judge sided with the groups and a 2nd Circuit panel affirmed that ruling in a 2-1 vote. The majority said the rule doesn’t merely force organizations to refrain from certain conduct, but also requires them "to espouse the government’s viewpoint."

Appeals Court Judge Chester J. Straub wrote a dissenting opinion that pleaded for Supreme Court review in large part because another appeals court in Washington, D.C., upheld the provision at issue against a similar challenge.

In urging the justices to take the case, the Obama administration said the provision reflects Congress’ view that sex trafficking and prostitution are serious factors in the spread of HIV/AIDS.

Some organizations advocate for a reduction in penalties for prostitution to prevent interference with outreach efforts. They also try to avoid controversial policy positions likely to offend host nations and partner organizations and the prostitutes whose trust they must earn to stop the spread of diseases.

Two groups - Alliance for Open Society International Inc., which runs a program in Central Asia to prevent the spread of HIV/AIDS by reducing drug use, and Pathfinder International, which provides family planning and reproductive health services in more than 20 countries - went to the courts after they adopted policy statements opposing prostitution in order to keep their eligibility for funding intact. Pathfinder did so even though it wishes to remain neutral on the issue or prostitution, the appeals court said.

The other two groups are Global Health Council and Interaction.

In arguing against Supreme Court review, the groups noted that the World Health Organization and other international organizations receive U.S funds to fight AIDS and do not have to comply with the anti-prostitution pledge. Indeed, the groups said in their legal papers, some of the international agencies support lesser penalties for prostitution as part of their AIDS-fighting strategy.

The case probably will be argued in April, with a decision due by the end of June.

The case is United States Agency for International Development v. Alliance for Open Society International, 12-10.



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