[5] While the language of the legislation does not distinguish between foreign and U.S.-based organizations, the pledge was initially only enforced for the former, as the Justice Department had expressed First Amendment concerns.
[6][7] In September 2004, a letter from Assistant Attorney General Daniel Levin reversed this opinion,[6] and the U.S. Agency for International Development issued a directive in June 2005 that expanded the pledge requirement to all NGOs.
[6] In a February 2002 National Security Presidential Directive, President George W. Bush wrote: "The United States opposes prostitution and any related activities, including pimping, pandering, and/or maintaining brothels as contributing to the phenomenon of trafficking in persons.
"[9] This was countered in August 2005 by a letter to the President supporting the policy, signed by over 100 groups, including the Christian Medical Association, Concerned Women for America, Family Research Council, Focus on the Family, National Association of Evangelicals, Southern Baptist Ethics & Religious Liberty Commission, Sex Industry Survivors, The Medical Institute, The Salvation Army, World Hope International and World Relief.
The Brazilian anti-AIDS program, which employs prostitutes to hand out information and free condoms, is considered by the United Nations to be the most successful in the developing world.
[16] Randall L. Tobias, the U.S. administration's foreign aid chief who was responsible for implementation of the anti-prostitution pledge, resigned in April 2007 over allegations that he had used an escort service.
[17][18] The 2012 final report of UNDP's Global Commission on HIV and the Law denounced the anti-prostitution pledge and included the recommendation 3.2.8 Repeal punitive conditions in official development assistance—such as the United States government's PEPFAR anti-prostitution pledge and its current anti-trafficking regulations—that inhibit sex workers' access to HIV services or their ability to form organisations in their own interests.
The February 2007 appeals court ruling was based on the assumption that the government would allow speech regarding prostitution as long as it is done through an affiliate that doesn't receive federal funding.
In May 2006, a District Court in New York issued a preliminary injunction, preventing the government from requiring these organizations to sign the anti-prostitution pledge.
Global Health Council and InterAction joined the case, and the District Court extended the injunction to all U.S.-based members of these organizations in August 2008.