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Supreme Court Rules Against Anti-Prostitution Pledge for HIV/AIDS Funding

The Supreme Court of the U.S. this week struck down a provision that requires agencies receiving global HIV/AIDS funding to affirm their opposition to prostitution, stating that it is an unconstitutional restriction of free speech.

The justices ruled 6-2 -- with Justices Antonin Scalia and Clarence Thomasdissenting -- in favor of the Alliance for Open Society International (AOSI) and other global health organizations thatsued the U.S. Agency for International Development (USAID) seeking removal of the requirement, which applied to funding provided through the President’s Emergency Plan for AIDS Relief, or PEPFAR.

Since 2003 aid recipients have been required to sign a pledge stating that they would not use funds to "promote or advocate the legalization or practice of prostitution or sex trafficking," and would not provide assistance to "any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking."

Advocates and public health workers in the U.S. and abroad argued that the clause made it more difficult to do outreach and provide services for one of the populations most heavily impacted by the epidemic. Some of the most effective HIV education and prevention programs involve sex workers interacting with their peers.

Advocates claimed that the pledge required health workers to "censor" their discussion of comprehensive HIV/AIDS prevention at conferences, in publications, and when working with prostitutes and their advocacy organizations.

The justices sided with the plaintiffs on First Amendment grounds, upholding earlier rulings by a federal judge and the New York-based Second Circuit Court of Appeals.

"The policy requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program," Chief Justice John Roberts wrote for the majority. "It is about compelling a grant recipient to adopt a particular belief as a condition of funding."

The prohibition against directly using U.S. funds to promote or advocate for legalization of prostitution remains in place.

"The implication of the pledge is that groups are barred from reaching a highly-vulnerable population, sex workers, undermining the effectiveness of our foreign assistance efforts," Congresswoman Barbara Lee said in response to the decision. "This pledge is not only unconstitutional, it is counterproductive to the effective work that many HIV and public health organizations are performing."

The full SCOTUS ruling is available online at http://www.supremecourt.gov/opinions/12pdf/12-10_21p3.pdf.

6/21/13

Sources

D Fine Maron. Supreme Court Strikes Down Anti-Prostitution Pledge Tied to Global AIDS Funding. Scientific American blog. June 20, 2013.

W Richey. Supreme Court: Anti-prostitution pledge in AIDS law violates free speech. Christian Science Monitor. June 20, 2013.

Barbara Lee. Congresswoman Lee Hails Supreme Court Decision on USAID v AOSI. Press release. June 20, 2013.