In a case brought by the Brennan Center for Justice at NYU School of Law, two organizations (AOSI and Pathfinder International) that received funding under the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (the Leadership Act) sued the U.S. Agency for International Development (USAID), among others, seeking to enjoin their narrow reading of the Leadership Act’s provision requiring funded organizations to have a policy expressly opposing prostitution and sex trafficking.
In May 2006, the U.S. District Court for the Southern District of New York had ruled that this requirement violated the organizational plaintiff’s First Amendment rights, restricting their privately-funded speech and forcing them to adopt the U.S. government’s views in order to be eligible for funding. The Court of Appeals remanded in light of proposed U.S. Department of Health and Human Services (HHS) and UNAIDS that would, ostensibly, allow funding recipients to establish privately funded affiliate organizations that could operate free of the requirement to oppose prostitution. In fact, however, the guidelines would make it prohibitively difficult for organizations to separate in this way.
In February 2008, the plaintiffs filed an amended complaint to add Global Health Council and InterAction (international development and public health groups) as plaintiffs; Global Health Council and InterAction then moved for a preliminary injunction on behalf of their members. HHS represented to the court that its July 2007 guidelines would go through a notice and comment process by April 2008, after which the court would assess the constitutionality of the revised guidelines. The notice and comment period did occur, but final guidelines have not yet been issued. The case is still pending in the District Court. Click here for other information and documents related to this case.