The Foreign Service Journal, June 2007

A Chilling Effect Further, the lack of guidance on what constitutes promoting prostitu- tion constrains U.S. and foreign orga- nizations from working in any capacity with sex workers. Does providing them with health care promote prosti- tution? Does teaching them English or clothing or feeding their children do so? The resulting murkiness has had a chilling effect on HIV/AIDS programming that relates in any way to sex workers. Funding recipients also face an historically aggressive USAID inspector general’s office that may impose both civil and criminal lia- bility for even inadvertent transgres- sions. They are also aware that the Bush administration has devoted addi- tional resources and efforts to detect- ing and punishing noncompliance. Third, the policy requires recipi- ents to certify that they oppose prosti- tution and sex trafficking. In their court case, the U.S. NGOs argued that this requirement violates their rights because it requires, as a pre- condition to funding, that an organiza- tion confirm that it adheres to a cer- tain set of beliefs and may not have a differing view on the subject, in any country context, for any reason. Like the Mexico City Policy, this require- ment serves to constrain an organiza- tion, and now a U.S. organization, from providing advice or taking cer- tain actions, even when doing so with its own money. In addition to the more fundamen- tal objections, any certification requirement of this magnitude cre- ates a burden on recipients that was meant to be addressed by the Paperwork Reduction Act. Such new certification requirements are to be announced in the Federal Register , the paperwork burden assessed, and the public given a reasonable period for comment. However, in this case, USAID chose to impose the policy on U.S. organizations without affording them any opportunity for assessment or comment. As it did when reimpos- ing the Mexico City Policy in 2001, the agency utilized an “emergency” exception that allows a policy to be instituted without notice in the Federal Register and without notice to the public. Directive 05-04 was declared un- constitutional on May 9, 2006, by the U.S. District Court for the Southern District of New York. The court ruled, in Alliance for Open Society International et al. v. USAID, that the certification requirement violated the First Amendment rights of the two plaintiff organizations, Alliance for Open Society International and Path- finder International, by restricting their privately funded speech and by forcing them to adopt the govern- ment’s viewpoint in order to remain eligible for funds. “The Supreme Court has repeatedly found that speech, or an agreement not to speak, cannot be compelled or coerced as a condition of participation in a govern- ment program,” wrote Judge Victor Marrero. Despite this decision, USAID has not withdrawn or amended the direc- tive and continues to require recipi- ents (other than the two plaintiffs) to sign the certification requirement. In August 2006, the government appeal- ed the district court’s decision in the U.S. Court of Appeals for the Second Circuit. A Return to Best Practices The Bush administration’s ideolog- ical agenda in the health sector increasingly and disproportionately hurts women, which is especially trag- ic in sub-Saharan Africa where the greatest needs exist. A return to best practices in the provision of U.S. assis- tance and leadership in the interna- tional health sector can reverse this trend. These best practices include: • Proven, comprehensive, science- based HIV/AIDS prevention strate- gies, including reproductive health education and services, transmission education, voluntary counseling and testing, and the provision of condoms; • Programs that focus in each country context on the factors that put women and girls at greater risk of HIV/AIDS and that support improve- ments in their legal, economic, educa- tional and social status; • Collaboration with NGOs, other donors and host governments to coor- dinate the provision of essential HIV/AIDS, reproductive health and public health services and commodi- ties; • Commitment to each host coun- try’s national HIV/AIDS plan, includ- ing participation in the country’s coor- dinating agency and national monitor- ing and evaluation framework; • Renewed and increased commit- ment to the Global Fund, the United Nations Program on HIV/AIDS, the United Nations Population Fund, and other successful multilateral initiatives and programs benefiting women’s health; and • Renewed and increased commit- ment to family planning services and reproductive health education pro- grams that lead to fewer unsafe abor- tions, lower maternal mortality, decreased sexually transmitted infec- tions and HIV, and improved maternal and child health. n 52 F O R E I G N S E R V I C E J O U R N A L / J U N E 2 0 0 7 A return to best practices in the provision of U.S. assistance and leadership in the international health sector can reverse this trend.