Sometime this spring, the Supreme Court will hear arguments on whether requiring organizations getting federal AIDS-fighting money to explicitly condemn prostitution is constitutional. For practical purposes the court’s decision will settle a question that has been answered two different ways by now, in the long and confusing trail that began when the requirement was added to the United States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003.
In 2007, a DC Circuit Court found that requiring organizations to make an “anti-prostitution pledge” as a condition of funding was constitutional, deciding against the complaint filed by the reproductive health nonprofit DKT International. Then in July 2011, a Second Circuit Court of Appeal, hearing the case brought by the Alliance for Open Society International, Pathfinder International, InterAction, and the now-defunct Global Health Council against USAID, came to the opposite conclusion. That court found that asking organizations to echo the government’s stance in order to get funding violated the right to free speech. It is that decision the Supreme Court agreed Friday to revisit, when it accepted the July petition filed by the U.S. Solicitor General.
The nonprofit organizations originally filed their complaint against the policy in 2005, when the Bush administration defended the policy. But it was the Obama administration that was defending the policy when it asked for extensions — first in April 2012, then on July 1 for one more day — to file a petition to bring the case to the Supreme Court. The petition was filed July 2, three weeks before the International AIDS Conference, where Secretary of State Hillary Clinton called for a plan for AIDS-free generation, that would address, among other obstacles, marginalization and discrimination of sex workers. The nonprofits filed their response, opposing the government’s petition in December, including among its arguments that the Leadership Act and its funding had been created “as an effort to fight the spread of HIV/AIDS through treatment, care, and prevention — not through anti-prostitution messaging.”
By then, in fact, the Obama administration plan that Clinton had called for — PEPFAR’s Blueprint to create an AIDS-free generation — had been released at the end of November, and did not include the word “prostitute” or “prostitution” once. Its several references to “sex work” or “sex workers” were included in sections that called for “ending stigma and discrimination against key populations (e.g.,men who have sex with men (MSM), sex workers (SW), and people who inject drugs (PWID).
Much had happened in between the original inclusion of the “anti-prostitution” requirement in 2003, and the creation of the Blueprint. Studies had found that programs that incorporated the efforts of sex-worker unions and other groups were important to efforts to fight HIV. The World Health Organization had addressed marginalization of sex workers in guidelines, calling for their inclusion in efforts. Among the issues that the court is expected to consider is the vagueness of a policy that opponents say, interferes with constructive efforts to reach some of the people in the greatest need of support in the battle against the HIV epidemic. Justice Elena Kagan, who served as Solicitor General under the Obama Administration in the years the case has continued, has recused herself from hearing the case.