Cara Hesse is the director of public affairs for Pathfinder International.
Health experts contend that in order to halt the spread of HIV worldwide they must be allowed to provide aid without prejudice. Recently a U.S. court agreed. Two weeks ago, a federal judge ruled that a key government policy that affects delivery of HIV/AIDS services is illegal. The ruling was a major victory for all organizations who work with vulnerable populations around the world.
Pathfinder and its co-plaintiffs, The Alliance for Open Society International (AOSI) and the Open Society Institute , initiated the lawsuit five months ago The basis of the case was a law—passed by Congress in 2003—which requires foreign public health organizations that receive U.S. funds to formally “pledge their opposition” to prostitution and sex trafficking in order to continue their life-saving HIV-prevention work. Initially, this law only affected organizations overseas; however, in 2004 the government expanded the law to include American organizations as well.
The law made no distinction between an organization’s privately and publicly funded activities. Thus, even if an organization developed programs with its own private funding, it was still bound by the parameters of the pledge when requesting federal funding. As many nongovernmental organizations (NGOs) must generate revenue from both funding sources to operate, this essentially forced them to adopt the government’s point of view—a violation of free speech and the First Amendment.
As a further complication, the law did not explicitly define how to adhere to the pledge requirement. Without guidelines, organizations did not know how to comply with the law, and government officials did not know how to enforce it. This ambiguity violates the due process clause of the Fifth Amendment.
Pathfinder, an international reproductive health organization, in no way promotes prostitution or sex trafficking. But forcing a condemnation of prostitution puts Pathfinder, and other organizations, in a position of having to judge the very people we are trying to help.
The decision to bring the lawsuit was not easy, and not without risk or controversy. Pathfinder challenged the U.S. government, from whom we receive significant funding for major programs in Bangladesh, Nigeria, Egypt, Ethiopia and Mozambique.
But the situation was becoming critical. Already, HIV prevention and treatment programs all over the world were starting to languish as a result of this law. In February 2005, 13 charitable organizations, including the International Rescue Committee, Save the Children and CARE, criticized the pledge requirement, saying that it “greatly undermined” AIDS prevention efforts. In July 2005, Brazil made headlines by declining tens of millions of dollars in U.S. funds so it could continue its successful anti-AIDS work without U.S. government-imposed restrictions.
Clearly, the issues of the lawsuit were of great concern to many organizations; no fewer than 22 international and public health organizations, including InterAction , the largest alliance of humanitarian and international NGOs, submitted briefs in support of the suit.
The ruling, issued by Judge Victor Marrero of the U.S. District Court for the Southern District of New York, stated that the pledge requirement violated the First Amendment rights of the plaintiff organizations, AOSI and Pathfinder International, by restricting their privately funded speech and by forcing them to adopt the government’s viewpoint in order to remain eligible for funds. “The Supreme Court has repeatedly found that speech, or an agreement not to speak, cannot be compelled or coerced as a condition of participation in a government program,” wrote Judge Marrero.
In his ruling, Marrero determined that a preliminary injunction against the enforcement of the pledge requirement was necessary to prevent AOSI and Pathfinder from suffering irreparable harm. While the court’s decision applies directly only to AOSI and Pathfinder, it could have a broad impact on the many other public health organizations also forced to sacrifice their privately funded speech in order to receive government funds.
As our attorney, Rebekah Diller said: “It’s wrong for the government to force public health organizations to make ideological pledges on unrelated issues in order to do their work of preventing HIV/AIDS. This decision has wider implications. As nonprofit organizations partner with government to address social problems, it should be clear that what counts is whether they do the work, not whether they are willing to espouse ideological positions.”
An appeal is likely; this ruling should be viewed as the first round. Judge Marrero’s decision could be only the barest beginning of a start, but at least it is a very successful start.
As news of the ruling spread and received ample coverage in the media, words of congratulations came flooding in from other prominent health organizations, staff and friends all around the world. But perhaps one of the most heartfelt messages came from Pathfinder Country Representative Carlos Laudari in Brazil, who wrote of his Pathfinder colleagues, "How incredibly reassuring to be associated with a group of people willing to challenge policies they feel are against the best interest of those people we serve."
