Several U.S. based non-governmental organizations engaged in HIV/AIDS prevention work abroad initiated this case to challenge the Leadership Act which mandated them to take a position against prostitution; Whether under the ‘Spending Clause’ the U.S. Congress has the power to enforce this mandate; The scope of the First Amendment as applied to U.S. based non-governmental organizations.
Under the U.S. Leadership Against HIV/AIDS, Tuberculosis and Malaria Act (“Leadership Act”), U.S. based organizations receiving funding for life-saving HIV prevention work abroad were required to pledge their opposition to prostitution. Furthermore, on 23 July 2007, USAID and the U.S. Department of Health and Human Services (HHS) issued strict guidelines that theoretically permitted funding recipients to establish affiliate organizations which are able to operate outside the pledge requirement, however, the degree of separation required made this virtually impossible for most organizations. Pathfinder and Alliance for Open Society International (AOSI), the Open Society Institute, InterAction and the Global Health Council initiated a challenge to these regulations.
On 7 July 2011, the Second Circuit Court held that the pledge violated the First Amendment rights of the U.S. based plaintiffs. Specifically, the Court discuss the ‘Spending Clause’ of the US Constitution, which allows the Congress to base the dispersal of federal funds upon compliance with federal statutory and administrative directives. However, the Court noted that this Congressional power is limited by the ‘unconstitutional conditions’ doctrine, which states that the government may not place a condition on the receipt of a benefit or subsidy that infringes upon the recipient’s constitutionally protected rights – in this case the freedom of expression. Therefore, the Court found the mandate to affirmatively declare a position opposing prostitution could not withstand heightened scrutiny under the First Amendment and that the alternative decree which allowed the organizations to set up affiliate organizations was not sufficient to cure the violation.
Keywords: Alliance for Open Society International and others v. USAID and others, Health, Right
Plaintiffs are awaiting notice as to whether the USAID will seek a rehearing in the Second Circuit or review by the Supreme Court. The deadline for the defendants to seek a rehearing is August 22, 2011.
Although this decision was exclusive to U.S. based organizations, it could potentially have a broader impact on those organizations based outside the U.S. who are still bound to this pledge and attendant requirements. In addition, it is an important decision furthering the elaboration of the scope of extra-territorial obligations of States and Non-state actors – i.e. to what extent States or other actors have human rights obligations outside of their territorial boundaries. In this case, the Second Circuit established that First Amendment rights of U.S. based organizations, extends to their work outside of the United States and that State obligations not to infringe on this right also extend outside U.S. borders. In addition, this is an important victory for organizations engaged in HIV/AIDS prevention work with high-risk communities and helping to support access to medicines.
Pathfinder International; Alliance for Open Society International (AOSI); Open Society Institute; InterAction; Global Health Council; Brennan Center for Justice; and AIDS Action.
