Updated 23 April 2013

US justices conflicted over Aids funding case

US Supreme Court justices appeared divided as they considered a challenge to a law requiring non-profit organisations to adopt an anti-prostitution policy in order to obtain federal funding for HIV/Aids programmes.


Supreme Court justices appeared divided as they considered a challenge to a law requiring non-profit organisations to adopt an anti-prostitution policy in order to obtain federal funding for HIV/Aids programmes abroad.

Several justices voiced concerns that the law imposes unconstitutional limits on freedom of speech, but others indicated the government had a right to direct how its money should be spent.

The 2003 law bars funding for non-governmental organisations that work on HIV/Aids prevention but do not have a policy opposing prostitution and sex trafficking.

Divisions in non-profit world

The Alliance for Open Society International and Pathfinder International - NGOs that receive funding for overseas HIV/Aids prevention - sued in 2005, citing the First Amendment's guarantee of free speech.

The organisations challenging the provision do not want to take a stand on prostitution. They say the law interferes with their work providing advice and counselling to prostitutes about the risks of HIV infection.

The non-profit world is divided, with 46 groups, many of which focus on women's rights, supporting the law.

The groups obtained an injunction in 2006 that has prevented the policy from being enforced ever since.

Justice Elena Kagan is recused, most likely due to her previous role as solicitor general in the Obama administration, meaning only eight justices are presiding over the case.

At least three indicated they had concerns about the law, with Justice Samuel Alito the most outspoken.

He signalled discomfort with the general concept of the government having a broad right to direct groups it is funding on what they can and cannot say.

"It seems to me like quite a dangerous proposition," he said. Alito questioned whether, for example, the government could impose similar conditions to funding for higher education.

First amendment questions

Justice Ruth Bader Ginsburg focused on a move made by the Bush administration, later amended by the Obama administration, to resolve some of the First Amendment questions. The government has said that NGOs could set up affiliate groups to receive the funding without the parent organisation having to announce a position on prostitution.

Ginsburg said that approach may not solve the problem because it's "no simple thing" for an NGO to set up a new organisation in another country. She said that requiring this extra step is "quite an arduous" burden to place on NGOs.

Taking another line of attack, Justice Sonia Sotomayor questioned whether the law restricted an NGO's ability to "stay true to its own beliefs."

Other justices, while not wholeheartedly endorsing the government's argument in defense of the law, did not appear to feel that there was a problem in general with Congress attaching conditions on funding.

Justice Stephen Breyer said there were "dozens and dozens" of examples in which the government gave funding to groups because they shared the same goals. "Otherwise, they wouldn't be in the program," he said.

Chief Justice John Roberts said the government is "just picking out who is an appropriate partner."

Under a barrage of questioning from the justices, David Bowker, the NGOs' attorney, seemed momentarily stumped by one of Roberts' questions.

The chief justice asked whether, during the period in which South Africa was racially segregated, the US. government could have limited funding for public health programmes to NGOs that were opposed to the policy, known as apartheid.

After a lengthy pause, Bowker conceded the question was tougher than the one posed in his case, but that it would still be impermissible for the government to make decisions on that basis.


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HIV/Aids expert

Dr Sindisiwe van Zyl qualified at the University of Pretoria before working for an HIV/AIDS NPO in Soweto for many years. She was named one of the Mail & Guardian's Top 200 Young South Africans in 2012.

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