Yesterday's Supreme Court's 6-2 decision in US Agency for International Development v. Alliance for Open Society International invalidated the "anti-prostitution pledge." Advanced by religious and other anti-human-trafficking groups, this provision was integrated in the Leadership Act--the law that authorized the Bush Era's flagship PEPFAR initiative to fight HIV/AIDS. At issue in this case was the Act's condition that any recipient of US funds to fight AIDS and related diseases must first adopt an organization-wide "policy explicitly opposing prostitution and sex trafficking." With only Thomas and Scalia dissenting, the Court's conservative and liberal voices joined to find that the pledge provision runs afoul of the First Amendment. Going beyond merely dictating how the funds could be spent, this clause actually mandates private entities to "espouse as their own the Government's [policy] view."
Although decided strictly on First Amendment grounds, this decision also has important implications for the fight against HIV/AIDS and other public health programming. Around the world, sex workers have an elevated risk for HIV and other infectious disease; they can also transmit these infections to clients and others. Public health evidence clearly demonstrates that successful efforts to curb disease transmission in this population require sex worker input, participation, and trust. Statements about annihilating sex work cannot be squared with these basic tenets. This is especially true when the requisite policy position conflates all sex work with human trafficking--a highly controversial and inaccurate characterization. Beyond merely stymying programming, the pledge requirement alienates potential recipients, including those best positioned to implement HIV prevention and treatment. As public health organizations and researchers argued in their amicus brief to the Supreme Court in the Alliance case, the pledge requirement actually hinders the public health goals of the Leadership Act.
The Court's decision to strike down the pledge provision should not come as a surprise. In fact, the Justice Department had initially recommended limiting the pledge requirement to foreign entities because they understood the provision to be vulnerable to First Amendment challenges from US-based organizations. In 2005, however, the policy was expanded to cover American grantees, sparking the protracted litigation that was finally laid to rest by yesterday's judgment. One of the key decision-makers behind the 2005 policy shift was Randall Tobias, the State Department official who was George W. Bush's first AIDS czar. At the same time that he was directing USAID to restrict funding to domestic and international organizations assisting sex workers, Tobias was regularly patronizing one of D.C.'s high-end escort services--a revelation that forced his resignation in 2007.
What has been somewhat surprising, however, is the choice by the Obama Justice Department to persist in defending the anti-prostitution pledge all the way up to the Supreme Court. Before yesterday's ruling, the government had lost all of the significant intermediate legal battles in this case. Although it is customary for the Executive to litigate constitutional challenges to the acts of Congress, this Administration has jettisoned the defense of other laws it has determined to be on weak constitutional and moral footing. The Administration's decision to spare no time or dime in pursuing this litigation likely reflects a political calculation that the fallout from abandoning this case would be unacceptably severe.
This political calculus and aversion to controversy may eventually limit any positive impact from yesterday's decision, for two reasons. First, is not clear whether and how the Administration's position may change in relation to foreign recipients of PEPFAR funds. Non-US organizations are not covered by the First Amendment protections, so unless there is an executive decision or legislative reform to lift the pledge requirement in the international context, the anti-prostitution pledge still stands in that context. International recipients conduct the bulk of the on-the-ground prevention, testing, and treatment work supported by PEPFAR.
Second, the Alliance litigation never challenged the closely-related Leadership Act clause mandating that no funds "may be used to promote or advocate the legalization or practice of prostitution." Although likely constitutional, this clause may be as counterproductive in public health terms as the now defunct "pledge" requirement. For example, the prohibition has been used by USAID to scrutinize whether providing legal assistance to sex workers can be construed as "promoting" sex work. Paradoxically, this concern has discouraged organizations from furnishing legal help to address sex worker abuse and exploitation.
The path to addressing these important residual issues lies outside the courts. Now is the time to galvanize the momentum from the Supreme Court ruling to force a re-examination of these outdated and misguided provisions in light of public health science rather than political expediency.