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“Well Beyond” Permissible: How Severing the Leadership Act's Policy Requirement Affirms Our Commitment to First Amendment Values
Published online by Cambridge University Press: 06 January 2021
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Imagine an American physician working with Pathfinder International's Mukta Project to combat the prevalence and spread of Sexually Transmitted Infections (STIs) and HIV in Maharashtra, India. The physician provides HIV/AIDS prevention and treatment services at a health clinic as well as coordinates educational programs about STIs for local residents. A young woman approaches the physician's clinic. The woman tentatively informs the physician that she has recently entered the local sex trade and may have contracted HIV. The physician wishes she could speak freely about the realities of prostitution in India. The physician wishes she could empower her new patient to adopt behaviors that would reduce her vulnerability to HIV/AIDS. In spite of any professional or personal opinions the physician might hold on the subject of prostitution, however, she must choose her words carefully. In order to receive program funding from the United States government, Pathfinder International has reluctantly endorsed a strict anti-prostitution policy, and the physician is prohibited from engaging in any activities that are inconsistent with that policy.
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1 Based in Watertown, Massachusetts, Pathfinder International is a 501(c)(3) nonprofit organization that provides reproductive health services and HIV/AIDS treatment programs in over twenty-five countries around the world. About Us: Mission & Vision, PATHFINDER INT’L, http://www.pathfinder.org/about-us/mission/ (last visited Aug. 30, 2012). “Mukta” means “freedom” in the local language, and the sex worker community chose to name the project Mukta to represent the package of services offered at clinics by Pathfinder International and partner organizations. MUKTA NEWSLETTER (Pathfinder Int’l, Pashan, Pune, Maharashtra), July 2006, at 1, available at http://www2.pathfinder.org/site/DocServer/Mukta_Newsletter_May_-_July_06_Final.pdf?docID=7481. The Mukta logo is a feminized butterfly taking flight, and the logo symbolizes the hope, direction, and liberation sought by sex workers around the world. Id.
2 Most Indians know and accept that prostitution exists. Lucile Scott, Taking Care of Business, POZ, (May 2008), http://www.poz.com/articles/prevention_sexworkers_India_2176_14361.shtml (last visited on Sept. 24, 2012). Receiving money in exchange for sex is not against the law, and roughly fifteen percent of Indian men visit female sex workers regularly. Id.
3 United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act), 22 U.S.C. § 7631 (2006).
4 Id. § 7631(f).
5 Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 225 (2d Cir. 2011).
6 Id.
7 DKT Int’l, Inc. v. U.S. Agency for Int’l Dev., 477 F.3d 758 (D.C. Cir. 2007).
8 This Note focuses on the First Amendment and policy implications of the Policy Requirement and argues that severing the provision from the Leadership Act is not only constitutionally proper, but necessary for upholding our commitment to free speech values and achieving better public policy. For a discussion of various legislative alternatives to the Policy Requirement and an argument that permitting NGOs to regulate the process through which they allocate their federal funds is the best solution, see Malhotra, Garima, Comment, Good Intentions, Bad Consequences: How Congress's Efforts to Eradicate HIV/AIDS Stifle the Speech of Humanitarian Organizations, 61 CATH. U. L. REV. 839 (2012).Google Scholar
9 22 U.S.C. § 7603.
10 Id.
11 Id. § 7611(a)(12).
12 Id. § 7621(a)(4).
13 Id. § 7631.
14 Id. § 7631(f).
15 Id. Defending the exception clause, the government in Alliance for Open Society argued that the exempt organizations were “public international organizations,” and any attempt to force these organizations to comply with anti-prostitution policy would require “multilateral negotiations.” Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 238 (2d Cir. 2011).
16 Alliance for Open Soc’y Int’l, Inc., 651 F.3d at 225.
17 Id.
18 Id.
19 Id. The 2004 OLC Opinion has never been publicly released. The Brennan Center for Justice filed several Freedom of Information Act (FOIA) requests to obtain the opinion over the years, all of which have been denied. Brennan Center v. U.S. DOJ, HHS, USAID, BRENNAN CTR. FOR JUSTICE, http://www.brennancenter.org/content/resource/bc_v_usdoj_hhs_usaid/ (last visited Nov. 4, 2012). The Brennan Center filed a FOIA lawsuit in October 2009, and the litigation is ongoing. Id. During the litigation, the government produced part of the OLC Opinion, although most of the document is redacted. Id.
20 OFFICE OF ACQUISITION & ASSISTANCE, U.S. AGENCY FOR INT’L DEV., AAPD 05-04: IMPLEMENTATION OF THE UNITED STATES LEADERSHIP AGAINST HIV/AIDS, TUBERCULOSIS AND MALARIA ACT OF 2003 – ELIGIBILITY LIMITATION ON THE USE OF FUNDS AND OPPOSITION TO PROSTITUTION AND SEX TRAFFICKING 5-6 (2005), available at http://www.usaid.gov/business/business_opportunities/cib/pdf/aapd05_04.pdf.
21 OFFICE OF ACQUISITION & ASSISTANCE, U.S. AGENCY FOR INT’L DEV., AAPD 05-04 AMENDMENT 1: IMPLEMENTATION OF THE UNITED STATES LEADERSHIP AGAINST HIV/AIDS, TUBERCULOSIS AND MALARIA ACT OF 2003 – ELIGIBILITY LIMITATION ON THE USE OF FUNDS AND OPPOSITION TO PROSTITUTION AND SEX TRAFFICKING 2 (2007) [hereinafter USAID AMEND. 1], available at http://www.usaid.gov/business/business_opportunities/cib/pdf/aapd05_04_amendment1. pdf.
22 Id.
23 45 C.F.R. § 89.1 (2010); OFFICE OF ACQUISITION & ASSISTANCE, U.S. AGENCY FOR INT’L DEV., AAPD 05-04 AMENDMENT 3: IMPLEMENTATION OF THE UNITED STATES LEADERSHIP AGAINST HIV/AIDS, TUBERCULOSIS, AND MALARIA ACT OF 2003, AS AMENDED – ELIGIBILITY LIMITATION ON THE USE OF FUNDS AND OPPOSITION TO PROSTITUTION AND SEX TRAFFICKING 2 (2010) [hereinafter USAID AMEND. 3], available at http://www.usaid.gov/business/business_opportunities/cib/pdf/aapd05_04_amendment3.pdf.
24 USAID AMEND. 3, supra note 23, at 17.
25 DKT INT’L, http://dktinternational.org/index.php?section=10 (last visited Oct. 23, 2012). DKT currently has programs in eighteen countries around the world and is one of the largest private providers of contraceptives and family planning services in the developing world. Id.
26 About Us, FHI 360, http://www.fhi360.org/en/AboutFHI/index.htm (last visited Nov. 22, 2011); Contact Us, FHI 360, http://www.fhi360.org/en/AboutFHI/ContactFHI.htm (last visited Sept. 18, 2012).
27 DKT Int’l, Inc. v. U.S. Agency for Int’l Dev., 477 F.3d 758, 760 (D.C. Cir. 2007).
28 Id.
29 Id. at 761. DKT claimed that an anti-prostitution policy would stigmatize and alienate sex workers who were the most vulnerable to HIV/AIDS. Id.
30 Id.
31 DKT Int’l, Inc. v. U.S. Agency for Int’l Dev., 435 F. Supp. 2d 5, 7 (D.D.C. 2006).
32 Id. at 17-18.
33 DKT Int’l, Inc., 477 F.3d at 759.
34 Id. at 764.
35 Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 224 (2d Cir. 2011).
36 Id.
37 Id.
38 Id.
39 See id. at 225.
40 Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 430 F. Supp. 2d 222, 222-23 (S.D.N.Y. 2006).
41 Alliance for Open Soc’y Int’l, Inc., 651 F.3d at 225-26.
42 Id. at 226.
43 Id. at 227.
44 Id. at 223, 227.
45 Id. at 223.
46 U.S. CONST. art. I, § 8, cl. 1.
47 South Dakota v. Dole, 483 U.S. 203, 206 (1987).
48 Id.
49 Id. at 207.
50 Id. at 207-08.
51 Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47, 59 (2006); Perry v. Sindermann, 408 U.S. 593, 597 (1972).
52 Rumsfeld, 547 U.S. at 59; Perry, 408 U.S. at 597.
53 Perry, 408 U.S. at 597.
54 Sullivan, Kathleen M., Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1417 (1989)CrossRefGoogle Scholar. Stanford Law School professor and constitutional law expert Kathleen Sullivan aptly noted that “Supreme Court decisions on challenges to unconstitutional conditions seem a minefield to be traversed gingerly,” and “when the doctrine appears secure, new decisions arise to explode it.” Id. at 1415-16. For a detailed discussion of the unconstitutional conditions doctrine, see generally id.
55 Although the D.C. Circuit and Second Circuit naturally relied on their own circuit court precedent in addition to Supreme Court precedent in deciding their respective cases, this Note focuses on Supreme Court precedent in establishing a legal framework through which a more authoritative resolution of the circuit split can be achieved.
56 U.S. CONST. amend. I.
57 Regan v. Taxation with Representation, 461 U.S. 540, 547 (1983).
58 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
59 GEOFFREY R. STONE ET AL., THE FIRST AMENDMENT 10 (3d ed. 2008). For a discussion on the self-governance rationale, see id. at 10-12.
60 Richards, David A. J., Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. PA. L. REV. 45, 62 (1974).CrossRefGoogle Scholar
61 Id.
62 STONE ET AL., supra note 59, at 13-14.
63 Citizens United v. FEC, 130 S. Ct. 876, 881-84 (2010).
64 131 S. Ct. 1207 (2011). The picketers, all members of the Westboro Baptist Church in Topeka, Kansas, displayed signs that stated, for instance: “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don't Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.” Id. at 1210.
65 Id. at 1216-17.
66 Id. at 1215, 1217 (quoting Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964)).
67 United States v. Alvarez, 132 S. Ct. 2537 (2012).
68 Id. at 2550 (quoting Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting)).
69 Id.
70 Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47, 61 (2006).
71 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). The West Virginia Board of Education's resolution mandated that all public school children participate in a “‘stiff-arm’ salute, the saluter to keep the right hand raised with palm turned up while repeating the Pledge of Allegiance.” Id. at 627.
72 Id. at 633-34.
73 Id. at 642. The Court also contended that sustaining the state regulation would require the Court to say that “a Bill of Rights which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.” Id. at 634.
74 Speiser v. Randall, 357 U.S. 513, 531 (1958).
75 Id. at 515-16. The tax return statement said: “I do not advocate the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means, nor advocate the support of a foreign Government against the United States in event of hostilities.” Id.
76 Id. at 518.
77 Id. at 518-19.
78 Id. at 519.
79 Id. at 513.
80 430 U.S. 705 (1977).
81 Id. at 705. The statute was challenged by Mr. Maynard, a member of the Jehovah's Witness faith, who was fined and jailed for covering up the motto on the license plates of his family's automobiles. Id. at 707-09. In his affidavit, Mr. Maynard stated: “I refuse to be coerced by the State into advertising a slogan which I find morally, ethically, religiously and politically abhorrent.” Id. at 713.
82 Id. at 714 (“A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts.”).
83 Id. at 715.
84 Id.
85 Id.
86 Id.
87 Id. at 717.
88 Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 234-35 (2d Cir. 2011).
89 547 U.S. 47 (2006).
90 Id., at 47.
91 Id. at 62.
92 Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2664 (2011) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)); see also Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”).
93 FCC v. League of Women Voters of Cal., 468 U.S. 364, 364 (1984).
94 Id.
95 Id. at 365.
96 Id. at 378-79 (quoting Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969)).
97 Id.
98 Id. (quoting Consol. Edison Co. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 530, 546 (1980)).
99 515 U.S. 819 (1995).
100 Id. at 819. The student newspaper, Wide Awake: A Christian Perspective at the University of Virginia, “primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality,” which was prohibited by the University's Student Activities Fund Guidelines. Id.
101 Id. at 828; see also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641-43 (1994) (“At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence … . Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion.”).
102 Rosenberger, 515 U.S. at 829; see also R.A.V. v. St. Paul, 505 U.S. 377, 391 (1992) (“The First Amendment does not permit [the government] to impose special prohibitions on those speakers who express views on disfavored subjects.”).
103 Rosenberger, 515 U.S. at 829.
104 131 S. Ct. 2653 (2011).
105 Id. at 2656.
106 Id. at 2656-57.
107 Id. at 2671 (quoting 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503 (1996)).
108 Id. at 2664.
109 N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269-70 (1964) (“The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions.”); see also Roth v. United States, 354 U.S. 476, 484 (1957) (arguing that the protection given speech “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people”).
110 NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982) (quoting Carey v. Brown, 447 U.S. 455, 467 (1980)); see also Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) (“[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.”).
111 Snyder v. Phelps, 131 S. Ct. 1207, 1216 (2011); see also FCC v. League of Women Voters of Cal., 468 U.S. 364, 381 (1984) (noting that speech regulations restricting the ability of broadcasting industries to engage in editorializing are intended to “secure the public's First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern”).
112 Rankin v. McPherson, 483 U.S. 378, 387 (1987).
113 See, e.g., Claiborne, 458 U.S. at 886; Carey v. Brown, 447 U.S. 455 (1980); N.Y. Times, 376 U.S. at 256.
114 See, e.g., Roth v. United States, 354 U.S. 476 (1957).
115 See, e.g., Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995).
116 See, e.g., Snyder, 131 S. Ct. at 1210.
117 See, e.g., id.
118 See, e.g., Rankin v. McPherson, 483 U.S. 378, 378 (1987).
119 Rust v. Sullivan, 500 U.S. 173, 178 (1991). Under Section 1008 of the Public Health Service Act, no federal funds appropriated under the Act's Title X for family-planning services “shall be used in programs where abortion is a method of family planning.” Id. at 173; see also Public Health Service Act § 1008, 42 U.S.C.A. § 300a-6 (West 2012).
120 Id. at 192-93 (“The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way.”).
121 Id. at 193 (quoting Maher v. Roe, 432 U.S. 464, 475 (1977)).
122 Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995).
123 Id. Offering an example of the government-speech doctrine, the D.C. Circuit in DKT International mentioned the “Just Say No” anti-drug campaign and cheekily noted that the First Amendment does not also require the government to sponsor simultaneously a “Just Say Yes” campaign. DKT Int’l, Inc. v. U.S. Agency for Int’l Dev., 477 F.3d 758, 761 (D.C. Cir. 2007).
124 Rosenberger, 515 U.S. at 833; see also Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001) (arguing that government-speech restrictions are generally justified because the government is accountable to the electorate and the political process).
125 Pleasant Grove City v. Summum, 555 U.S. 460, 484 (2009) (Breyer, J., concurring) (“[T]he ‘government speech’ doctrine is a rule of thumb, not a rigid category … courts must apply categories such as ‘government speech’ … with an eye toward their purposes—lest we turn ‘free speech’ doctrine into a jurisprudence of labels.”).
126 See id.
127 Regan v. Taxation with Representation, 461 U.S. 540, 540 (1983).
128 Id. at 545-46.
129 Id. at 544.
130 FCC v. League of Women Voters of Cal., 468 U.S. 364, 400 (1984).
131 Id.
132 Rust v. Sullivan, 500 U.S. 173, 196 (1991).
133 Id.
134 DKT Int’l, Inc. v. U.S. Agency for Int’l Dev., 477 F.3d 758, 759 (D.C. Cir. 2007).
135 Id. at 764.
136 Id. at 761-63.
137 Id. at 762.
138 Id. at 761.
139 Id. at 762-63.
140 Id. at 763.
141 Id.
142 Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 223 (2d Cir. 2011).
143 Id. at 236.
144 Id.
145 Id. at 239.
146 Id. at 240 (Straub, J., dissenting).
147 Id.
148 U.S. CONST. amend. I.
149 United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act), 22 U.S.C. § 7631(f) (2006).
150 FCC v. League of Women Voters of Cal., 468 U.S. 364, 383-84 (1984).
151 Id. (quoting Consol. Edison Co. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 530, 546 (1980)).
152 See id.
153 DKT Int’l, Inc. v. U.S. Agency for Int’l Dev., 477 F.3d 758, 764 (D.C. Cir. 2007).
154 Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 235 (2d Cir. 2011).
155 United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act), 22 U.S.C. § 7631(f) (2006).
156 Alliance for Open Soc’y Int’l, Inc., 651 F.3d at 223 (quoting the federal agency regulations).
157 DKT Int’l, Inc., 477 F.3d at 762.
158 Id. at 761.
159 Alliance for Open Soc’y Int’l, Inc., 651 F.3d at 225, 228.
160 Global Health Council (GHC) is an alliance of organizations dedicated to international public health, and InterAction is an alliance of international development and humanitarian NGOs. Id. at 226.
161 Id. at 228 n.2. Many of the U.S.-based members of GHC and InterAction that participate in the international fight against HIV/AIDS, receive Leadership Act funding, and are therefore subject to the Policy Requirement and desire relief from it. These member organizations’ HIV/AIDS-prevention work includes administering health services and other programs that expressly target at-risk groups like prostitutes. They also engage in advocacy and discussion concerning controversial global health issues—best practices for reducing HIV/AIDS among prostitutes, for example—at policy forums and conferences. Id. at 226.
162 Id. at 234.
163 Speiser v. Randall, 357 U.S. 513 (1958).
164 See Wooley v. Maynard, 430 U.S. 705, 716 (1977); Speiser, 357 U.S. at 529; W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 631 (1943).
165 Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47, 62 (2006).
166 United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act), 22 U.S.C. § 7631(f) (2006) (emphasis added).
167 45 C.F.R. § 89.1 (2011) (emphasis added); see USAID AMEND. 3, supra note 22, at 2.
168 45 C.F.R. § 89.1 (emphasis added).
169 Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 236-37 (2d Cir. 2011) (rejecting the government's attempt to defend the Policy Requirement's “viewpoint-based speech mandate” under the government-speech doctrine); DKT Int’l, Inc. v. U.S. Agency for Int’l Dev., 477 F.3d 758, 762-63 (D.C. Cir. 2007) (agreeing with the government that the Policy Requirement was essential to the effectiveness of “the government's viewpoint-based program”).
170 Alliance for Open Soc’y Int’l, Inc., 651 F.3d at 241 (Straub, J., dissenting) (quoting DKT Int’l, Inc., 477 F.3d at 760).
171 President George W. Bush championed conservative morality during his presidency, supporting policies on abstinence, traditional marriage, and adoption while generally opposing homosexuality, gay rights, stem cell research, and abortion. See George W. Bush on Abortion, ON THE ISSUES, http://www.issues2000.org/George_W__Bush.htm (last visited Mar. 2, 2012).
172 Middleberg, Maurice I., The Anti-Prostitution Policy in the US HIV/AIDS Program, 9 HEALTH & HUM. RTS. 3, 3 (2006).Google ScholarPubMed
173 United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act), 22 U.S.C. § 7611(a)(12) (2006).
174 Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 236-37 (2d Cir. 2011).
175 Id. at 237.
176 Id.
177 Rust v. Sullivan, 500 U.S. 173, 200 (1991).
178 Alliance for Open Soc’y Int’l, Inc., 651 F.3d at 237.
179 Rust, 500 U.S. at 200.
180 Alliance for Open Soc’y Int’l, Inc., 651 F.3d at 235.
181 Id. at 237. The Second Circuit noted that it intentionally used the phrase “do so as if it were their own,” to “highlight the invasiveness of a condition that requires a recipient to affirmatively represent to the world that it, as an independent, non-governmental entity, holds an opinion—the government's opinion—that it may or may not in fact hold.” Id. at 237 n.6.
182 Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47, 62 (2006).
183 Alliance for Open Soc’y Int’l, Inc., 651 F.3d at 237-38.
184 Id. at 238 (“[T]he Agencies’ suggestion that requiring Plaintiffs to adopt an anti-prostitution policy statement is integral to the Leadership Act program is undermined by the fact that the government has chose to fund high-profile, global organizations that remain free to express—and indeed openly express—a contrary policy, or no policy at all.”).
185 Id. at 237-38.
186 Id. at 238 (quoting Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 547 (2001)).
187 Rust v. Sullivan, 500 U.S. 173, 200 (1991).
188 Id. at 175.
189 Id. at 218 (Blackmun, J., dissenting) (quoting Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 67 n.8 (1976)); see also Petrovich v. Share Health Plan of Ill., Inc., 188 Ill. 2d 17, 45-46 (1999) (noting that physicians “have professional ethical, moral and legal obligations to provide appropriate medical care to their patients” and “should not allow the exercise of their medical judgment to be corrupted or controlled”).
190 Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2664 (2011).
191 Nat’l Family Planning & Reprod. Health Ass’n, Inc. v. Sullivan, 979 F.2d 227, 230 (D.C. Cir. 1992).
192 Id. In a press conference, President George H.W. Bush asserted, “[U]nder my directive, they can go ahead—patients and doctors can talk about absolutely anything they want, and they should be able to do that.” Id.
193 Id.
194 USAID AMEND. 1, supra note 21, at 2.
195 Rust v. Sullivan, 500 U.S. 173, 196 (1991); FCC v. League of Women Voters of Cal., 468 U.S. 364, 400 (1984); Regan v. Taxation with Representation, 461 U.S. 540, 544 (1983).
196 Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 239 (2d Cir. 2011).
197 Id.
198 Citizens United v. FEC, 130 S. Ct. 876, 911 (2010).
199 See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269-70 (1964).
200 Rankin v. McPherson, 483 U.S. 378, 387 (1987).
201 100 Countries and Their Prostitution Policies, PROCON.ORG, http://prostitution.procon.org/view.resource.php?resourceID=000772 (last updated Dec. 22, 2011). The countries surveyed were chosen in order to be inclusive of major religions, geographical regions and policies toward prostitution. Id. Notable countries with legal prostitution include the United Kingdom, Canada, Mexico, Brazil, Argentina, France, Germany, Italy, Israel, and Turkey. Id.
202 Paula Newton, Canadian Province of Ontario Legalizes Brothels in Landmark Ruling, CNN (Mar. 26, 2012), http://www.cnn.com/2012/03/26/world/americas/canada-ontario-legalizes-brothels/index.html?eref=mrss_igoogle_cnn. The high court of Ontario reasoned that Canadian prostitution laws unfairly discriminate against prostitutes and their ability to work in safe environments. Id.
203 Did You Know?: Little Known Facts in the Prostitution Debate, PROCON.ORG, http://prostitution.procon.org/view.resource.php?resourceID=000116 (last updated July 2, 2009).
204 US and State Prostitution Arrests, 2001-2010, PROCON.ORG, http://prostitution.procon.org/view.resource.php?resourceID=000120 (last visited Oct. 23, 2012).
205 Opinion Polls/Surveys: 1967 - Nov. 4, 2008, PROCON.ORG, http://prostitution.procon.org/view.resource.php?resourceID=000121 (last updated Mar. 12, 2009).
206 See Brown v. Entm't Merchs. Ass’n, 131 S. Ct. 2729, 2743 (2011).
207 Id. (quoting Reno v. ACLU, 521 U.S. 844, 871-72 (1997)).
208 Id.
209 Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 223 (2d Cir. 2011) (citing the HHS and USAID guidelines).
210 Id. at 227.
211 Id. at 239 n.8.
212 Id. at 228.
213 Middleberg, supra note 172, at 6.
214 See United States v. Mead Corp., 533 U.S. 218, 227 (2001).
215 United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act), 22 U.S.C. § 7601 (2006).
216 Id. The Policy Requirement in the Leadership Act was inspired in part by the success of the behavior change program championed by Ugandan President Yoweri Museveni. Id. After implementing the AIDS prevention program known as the ABC Model (“Abstain, Be faithful, use Condoms”), Uganda experienced the most significant decline in HIV rates of any country in Africa. Id.
217 DKT Int’l, Inc. v. U.S. Agency for Int’l Dev., 477 F.3d 758, 761 (D.C. Cir. 2007). Sex workers in India are a highly stigmatized and abused population, and in 2003, about fifty-four percent of female sex workers in the city of Pune (population: 5 million) were estimated to be HIV positive. Scott, supra note 2.
218 Middleberg, supra note 172, at 9.
219 Id.
220 Darshana Vyas, Fighting HIV by Empowering Sex Workers, IMPATIENT OPTIMISTS (Oct. 26, 2011), http://www.impatientoptimists.org/Posts/2011/10/Fighting-HIV-by-Empowering-Sex-Workers.
221 Id.
222 Id.
223 Middleberg, supra note 172, at 8.
224 Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 236 (2d Cir. 2011).
225 Middleberg, supra note 172, at 9.
226 100 Countries and Their Prostitution Policies, supra note 201; see, e.g., Scott, supra note 2.
227 Middleberg, supra note 172, at 4 (citing 149 Cong. Rec. 6457 (2003)).
228 Id. at 6 (quoting M. Phillips & M. Moffett, Brazil Refuses US AIDS Funds, Rejects Conditions, WALL ST. J., May 2, 2005, at A3).
229 Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 328-30 (2006).
230 Id.
231 Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987).
232 Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 238 (2d Cir. 2011); DKT Int’l, Inc. v. U.S. Agency for Int’l Dev., 477 F.3d 758, 761 (D.C. Cir. 2007).
233 United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act), 22 U.S.C. § 7631 (2006).
234 Alliance for Open Soc’y Int’l, 651 F.3d at 238.
235 22 U.S.C. § 7631(e).
236 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (to be codified primarily in sections of 42 U.S.C.). For a discussion on the severability of the Individuate Mandate in the Patient Protection and Affordable Care Act, see Wendy Mariner, Wendy Mariner on Severability: Laser Surgery, Friends & Family, or Blow It Up?, HEALTH AFFAIRS BLOG (Mar. 30, 2012, 10:43 AM), http://healthaffairs.org/blog/2012/03/30/wendy-mariner-on-severability-laser-surgery-friends-family-or-blow-it-up/.