The US anti-prostitution pledge: First Amendment challenges and public health priorities.

Abstract

In January 2003, United States President George W. Bush announced the President's Emergency Plan for AIDS Relief (PEPFAR), the appropriation of $15 billion dollars for programs to combat the global HIV/AIDS epidemic, in his State of the Union address. Congress responded with the legislative authorization for the plan, the United States Leadership Against Global HIV/AIDS, Tuberculosis, and Malaria Act of 2003, and assigned seven primary implementing agencies, including the United States Agency for International Development (USAID) and the United States Department of Health and Human Services (HHS) [1]. Although the Act will expire in fiscal year 2008, the President has called on Congress once again to extend the plan for another five years and double the funding to $30 billion [2]. Within the detailed plan, Congress expressed concern about the social, cultural, and behavioral causes of HIV, specifically naming prostitution and sex trafficking as among the behavioral forces behind the spread of the virus. This legislation advanced a new policy goal for the US: the global eradication of prostitution [1]. Requirements for grantees were based on this explicit link between HIV prevention and the eradication of prostitution. In order to receive AIDS funds from the US, all grantees must have (1) a policy explicitly opposing prostitution and sex trafficking and (2) certification of compliance with the “Prohibition on the Promotion and Advocacy of the Legalization or Practice of Prostitution or Sex Trafficking,” which applies to all organization activities, including those with funding from private grants [1,3]. “The Prostitution Pledge,” as this requirement is often called, has evoked strong and mixed reactions. It has led some grantees, most prominently the government of Brazil, to reject US AIDS dollars altogether [4]. But it is the breadth of the requirement and its application to privately funded activities that has led to legal challenge of its constitutionality. One ongoing lawsuit involves the Alliance for Open Society International (AOSI), the Open Society Institute, and Pathfinder International versus USAID, HHS, and the Centers for Disease Control and Prevention's Global AIDS Program. AOSI and the Open Society Institute filed a complaint against the US government on September 23, 2005 and moved for a preliminary injunction arguing that the pledge policy requirement cannot restrict activities supported by private funds [5]. Both cases were preceded by a similar case from DKT International, a nonprofit organization that provides family planning and HIV/AIDS prevention programs internationally [6]. The Brennan Center for Justice at NYU School of Law, the legal counsel representing AOSI, asked our Center for Public Health and Human Rights at Johns Hopkins to review the existing scientific evidence on strategies that effectively reduce rates of HIV among sex workers and to present our findings in a Declaration for the court (the full text of the Declaration is available at [7]). In this article, we present a brief summary of our findings and the main arguments used in AOSI's First Amendment case, followed by a discussion of how these data have created an ethical dilemma in policy decisions. Our methods are shown in Box 1. Box 1. Methods Our methods included a literature search using the electronic database PubMed, and a search for published, freely available reports on Web sites of HIV prevention organizations. All studies found on PubMed and used in the Declaration were published in peerreviewed journals. The following subject heading terms were used: “HIV/AIDS,” “HIV prevention,” “sexually transmitted diseases prevention,” “sex workers (male, female, and not gender speci. c),” “sex work,” “prostitutes,” “prostitution,” and “effective HIV strategies.” Bibliographies of articles were also reviewed, and only one unique report from the Joint United Nations Programme on HIV/AIDS was retrieved by this method. Next, we reviewed published “Best Practices” reports from key global health organizations including the World Health Organization, the Joint United Nations Programme on HIV/AIDS, and the World Bank's HIV programs. In all the reports used, evidence-based studies shaped the guidelines and suggestions for future projects. Lastly, we used a case studies approach to investigate HIV prevention policies and practices in those developing countries where there was evidence of control of HIV spread and relatively low and stable HIV prevalence among sex workers at national levels.