ACLU and Public Health Groups Urge Appeals Court to Reject Bush Global AIDS Gag

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WASHINGTON - The federal government is illegally restricting the ability of U.S. health organizations to end the global HIV/AIDS epidemic, charged the American Civil Liberties Union and more than 25 public health and human rights organizations in a legal brief filed today.

The groups are urging a federal appeals court to reject a U.S. policy known as the "AIDS Leadership Act," which requires organizations that receive U.S. federal funding-regardless of their mission-to explicitly pledge to oppose commercial sex work. Two federal courts have already ruled that the policy violates the First Amendment rights of U.S. organizations, but the government is appealing those decisions.

"It is shameful that the Bush administration would value its political agenda over human lives," said Claudia Flores, an attorney with the ACLU Women’s Rights Project and counsel on today’s brief. "Rather than saving lives, this global gag rule will put women and girls at serious risk of infection and death. This policy is completely at odds with efforts to prevent the spread of HIV/AIDS and to treat its victims."

The groups filed a friend-of-the-court brief in the U.S. Court of Appeals for the Second Circuit in U.S. Agency for International Development v. Alliance for Open Society International. In the brief, the groups emphasize the damaging impact the policy would have on public health worldwide. The groups also argue that the policy violates the free speech rights of U.S. organizations by restricting use of their private funds.

Many organizations that work to prevent the spread of HIV/AIDS often reach out to commercial sex workers to distribute condoms and offer education on safer-sex measures. Signing an official pledge to oppose prostitution could lead to further stigmatization of this high risk population, say the groups, and would undermine prevention and treatment efforts. Those already infected will be discouraged from acknowledging their condition and seeking treatment because of a fear of being shunned or abused. Others will not seek out information or medical care or may fail to take precautions that stem the spread of HIV/AIDS for fear of stigmatization.

The groups say that this policy is at odds with the United States’ own HIV/AIDS policies. The premier federal agencies working to stem the spread of HIV/AIDS in the United States, including the Centers for Disease Control and Prevention, have found that isolating vulnerable groups like sex workers profoundly affects prevention efforts. Denying all funds from the USAID to organizations that do not make the pledge is in direct contradiction to this long held public health practice, said the ACLU.

While the Alliance for Open Society International and Pathfinder International, the organizations represented in the legal challenge, do not endorse prostitution, the groups say it is essential that they maintain their ability to engage in proven, effective HIV prevention methods with at-risk populations. In a landmark opinion, Judge Victor Marrero ruled in this case that the pledge requirement violated the First Amendment rights of the two organizations by restricting their privately funded speech and by forcing them to adopt the government’s viewpoint in order to remain eligible for funds. Today’s ACLU brief urges the appeals court to uphold Judge Marrero’s opinion.

The ACLU also filed a brief in a related case, USAID v. DKT International, in the U.S. Court of Appeals for the District of Columbia. DKT International, a U.S.-based organization, was denied federal funding when it refused to adopt the policy because it would hamper its HIV/AIDS services worldwide. On May 18, 2006, Judge Emmet G. Sullivan ruled that the application of the pledge requirement to DKT International violated the organization’s constitutional rights.

Both opinions are now on appeal by the government. Though the outcome of both cases will affect only the obligations of the plaintiff organizations under the pledge requirement, the decisions will likely have a broad impact on the other U.S.-based organizations that have been forced to limit their speech in exchange for government funding.

In addition to the ACLU, the organizations that signed onto today’s brief are: AIDS Action, American Foundation for AIDS Research, American Humanist Organization, American Jewish World Service, Center for Health and Gender Equity, Center for Reproductive Rights, Center for Women Policy Studies, Community HIV/AIDS Mobilization Project, Gay Men’s Health Crisis, Global AIDS Alliance, Global Health Council, Global Justice, Guttmacher Institute, Human Rights Watch, Institute of Human Rights of Emory University, International Planned Parenthood Federation of the Western Hemisphere Region, International Women’s Health Coalition, National Council of Jewish Women, Partners in Health, Physicians for Human Rights, Planned Parenthood Federation of America, Population Action International, Population Council, Religious Consultation on Population, Reproductive Health and Ethics, Sexuality Information and Education Council of the United States, the University of California, Berkeley’s Human Rights Center and Dr. Jim Yong Kim, Chair of the Harvard Medical School Department of Social Medicine.

The brief’s authors are Flores and Lenora Lapidus of the ACLU Women’s Rights Project and Caroline Brown, Susannah Vance and Christine Magdo of Covington & Burling LLP.

For a copy of the brief, go to www.aclu.org/hiv/discrim/27755lgl20061221.html