The Supreme Court today struck down a federal requirement that forced private health organizations to denounce prostitution in order to get funding for programs aimed at preventing or treating HIV/AIDS.
The decision marks a major victory for human rights and global health advocates who charged that the requirement was a U.S. government overreach that blocked health care workers from providing care to vulnerable populations. Congress has authorized billions of dollars in the global fight against HIV/AIDS under a policy rolled out by Pres. George W. Bush in 2003 (the President’s Emergency Plan for Aids Relief, or PEPFAR), but organizations receiving the U.S. funding had to comply with two separate conditions laid out by Congress. The first was that funds could not be used to promote or advocate the legalization of prostitution. The other, more controversial, provision—and the one struck down by the Supreme Court today—forced groups receiving U.S. funds to sign a pledge saying they would not provide, “assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.”
In practice, the nixed policy meant that nonprofits receiving funds from multiple sources or partnering with organizations that provided assistance to prostitutes were left in a tight spot. Prostitutes are among the most vulnerable to HIV but also play a vital role in combating it. Successful HIV campaigns often require coalitions of prostitutes to work together to educate other prostitutes of the risks, the need to get tested for HIV and the importance of requiring clients to wear condoms. As a matter of principle, Brazil’s national AIDS commissioner, HIV doctor Pedro Chequer, turned down $40 million in U.S. assistance for its fight against AIDS rather than sign a statement condemning prostitution.
The lawsuit, which was brought by a cadre of global health organizations claiming that the policy infringed on First Amendment rights, said the pledge alienated governments and diminished the effectiveness of some of their programs by putting up barriers to working with them. The groups also said, according to the ruling, that the policy requirement forced them to “censor their privately funded discussions in publications, at conferences, and in other forums about how best to prevent the spread of HIV/AIDS among prostitutes.”
The Supreme Court, in its 6-2 decision, said the federal government cannot require HIV outreach groups to sign an anti-prostitution pledge in order to get government funding. Chief Justice John Roberts, writing for the Court, stated that such a requirement violated the First Amendment. "The policy requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program," he wrote. "It requires them to pledge allegiance to the government's policy of eradicating prostitution." Justices Antonin Scalia and Clarence Thomas filed a dissenting opinion. Justice Elena Kagan did not participate in the consideration or decision of the case, presumably because she was involved with the case when she was the government's solicitor general. The case is United States Agency for International Development v. Alliance for Open Society International, 12-10.