Supreme Court strikes down anti-prostitution AIDS funding requirement: “It violates the First Amendment and cannot be sustained”

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“The Policy Requirement goes beyond defining the limits of the federally funded program to defining the recipient”

Public health experts said the requirement stifled an essential exchange of ideas. Congressional representatives said the requirement distorted the intention of the act that authorized the U.S. global AIDS response. Global health advocates and groups reported the requirement hobbled efforts to reach vulnerable people. And today, the United States Supreme Court released its opinion agreeing with four organizations that the anti-prostitution policy requirement attached to U.S. AIDS-fighting funding was unconstitutional.

Justices Antonin Scalia and Clarence Thomas dissented. The decision was written by Chief Justice John Roberts. Justice Elena Kagan, who previously served as Solicitor General during part of the time the Obama administration defended the anti-prostitution pledge requirement, recused herself.

Challenges to the anti-prostitution pledge requirement, which barred President’s Emergency Plan For AIDS Relief funding  from going to any organization “that does not have a policy explicitly opposing prostitution and sex trafficking” span the 10 years that PEPFAR has existed. A Justice Department warning that applying the requirement to U.S. organizations would be unconstitutional limited enforcement of the pledge requirement until 2005. Three months after the government did begin to apply the requirement to U.S. organizations, the Alliance for Open Society challenged the requirement in court. Three more organizations subsequently joined the challenge: Pathfinder International, InterAction, and the Global Health Council. Organizations reported that the requirement to condemn prostitution interfered with enlisting the support of sex workers in critical AIDS-fighting efforts, and that groups’ fears of violating the requirement prevented them from offering essential services to people involved in sex work. Over the years that followed, as courts prevented the pledge from being enforced, the government loosened the pledge requirement to allow organizations to work with groups that did not express an anti-prostitution view. That change, however, did not address the central problem the pledge presented, the Supreme Court opinion today said, because it continued to stifle organizations’ expression of their own views.

In his dissenting opinion joined by Justice Thomas, Justice Scalia argued that the government has a right to “enlist the assistance of those who believe in its ideas . . .  and it need not enlist for that purpose those who oppose . . .” adding “That seems to me a matter of the most common common sense.”

Oral arguments on behalf of the groups fighting the pledge before the justices in April, however, questioned the relevance of the pledge to PEPFAR’S goals, stressing that programs that were affected were enlisted not to fight prostitution, but to offer HIV-testing, prevent mother to child transmission of the virus, and provide life-saving treatment.

More than 200 organizations filed briefs supporting the challenge to the pledge. One of them was amfAR, the Foundation for AIDS Research, which released a statement today applauding the decision, calling the decision “a victory for human rights and global health.”

Filings in support of and challenging the pledge, as well as other information on the pledge can be found at:
See also previous Science Speaks coverage:
December 23, 2009:Proposed Rule on Prostitution Could Hinder Efforts to Reach Vulnerable Populations, January 21, 2011: An update on the anti-prostitution pledge, January 14, 2013: Does the anti-prostitution pledge violate the first amendment? Supreme Court to decide, April 4, 2013:As anti-prostitution pledge heads to Supreme Court, public health leaders file brief against it, April 23, 2013: Guns, apartheid, recycling . . . all part of oral arguments as Supreme Court takes on “anti-prostitution pledge”

2 thoughts on “Supreme Court strikes down anti-prostitution AIDS funding requirement: “It violates the First Amendment and cannot be sustained”

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