WASHINGTON — The Supreme Court has agreed to review a First Amendment dispute over whether the United States can force private health organizations to denounce prostitution as a condition to get AIDS funding.
The justices said Friday they will hear the government’s appeal of a lower court ruling that found the anti-prostitution pledge, in a provision of federal law, violated the health groups’ constitutional rights.
At issue is the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003. It requires groups seeking federal money to announce publicly that they oppose prostitution and sex-trafficking.
The government often attaches conditions to the receipt of federal funds, but the 2nd U.S. Circuit Court of Appeals in New York said the law went well beyond what is permissible.
Four organizations that work in Africa, Asia and South America filed a constitutional challenge to the law in 2005. A federal judge sided with the groups and a 2nd Circuit panel affirmed that ruling in a 2-1 vote. The majority said the rule doesn’t merely force organizations to refrain from certain conduct, but also requires them “to espouse the government’s viewpoint.”
In dissent, Judge Chester J. Straub pleaded for Supreme Court review in large part because another appeals court in Washington, D.C., upheld the provision against a similar challenge.
In urging the justices to take the case, the Obama administration said the provision reflects Congress’ view that sex trafficking and prostitution are serious factors in the spread of HIV/AIDS.
Some organizations advocate for a reduction in penalties for prostitution to prevent interference with outreach efforts. They also try to avoid controversial policy positions likely to offend host nations and partner organizations and the prostitutes whose trust they must earn to stop the spread of diseases.
Two groups — Alliance for Open Society International Inc., which runs a program in Central Asia to prevent the spread of HIV/AIDS by reducing drug use, and Pathfinder International, which provides family planning and reproductive health services in more than 20 countries — went to court after adopting policy statements against prostitution in order to keep their eligibility for funding. Pathfinder did so even though it wishes to remain neutral on the issue or prostitution, the appeals court said.
The other two groups are Global Health Council and Interaction.
The groupw arguing against Supreme Court review noted that the World Health Organization and other international organizations receive U.S funds to fight AIDS and do not have to comply with the anti-prostitution pledge. Indeed, the groups said in their legal papers, some of the international agencies support lesser penalties for prostitution as part of their AIDS-fighting strategy.
The case is United States Agency for International Development v. Alliance for Open Society International, 12-10.
Also on Friday, the court agreed to decide:
— Whether sex offenders who were released unconditionally before new sex offender registration rules were passed can be prosecuted for not registering.
Anthony James Kebodeaux was in the Air Force and was court-martialed for having sex with an underage girl. After three months of confinement and a bad conduct discharge in 1999, he moved around Texas and was eventually arrested in 2008 for not updating officials with his whereabouts.
The 5th U.S. Circuit Court of Appeals threw out that conviction, saying he was unconditionally released before the Sex Offender Registration and Notification Act became law in 2006 and therefore it did not apply to him.
— Whether prosecutors can use a suspect’s silence against in him in court if it came before police read him his rights. Genovevo Salinas was convicted in a 1992 murder. During police questioning, and before he was arrested or read his Miranda rights, Salinas did not answer when asked if a shotgun he had access to would match up with the murder weapon. Prosecutors used his pre-arrest silence against him at trial. Texas appellate courts said pre-Miranda silence is not protected by the Constitution. The justices will review that decision.