The Supreme Court today will hear a case that will decide the basic rights of groups fighting HIV. The case --Agency for International Development, Et. Al., v. Alliance for Open Society International, Inc., Et. Al.--centers on a policy that requires organizations to adopt the U.S. government's point of view as a condition of receiving U.S. global HIV/AIDS funds. Not surprisingly, it is being challenged on grounds that it violates the First Amendment.
The anti-prostitution loyalty oath (APLO) is at the center of the case. It is a provision in the 2003 United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act (the same law that authorized PEPFAR, the President's Emergency Plan for AIDS Relief) that requires organizations receiving U.S. global HIV/AIDS funds to adopt an organization-wide policy opposing prostitution. The provision remained in place when Congress reauthorized PEPFAR in 2008, and is still a part of PEPFAR today.
Since the APLO's inception, the public health community has been critical of possible ramifications it could have on HIV prevention interventions. After all, the policy didn't emerge as a public health response to HIV. It arose when some legislators saw an opportunity to enforce ideological purity about sex work when PEPFAR first emerged.
It's not just a mere inconvenience to be told what you can and cannot believe as an organization fighting HIV. Being able to find a solution to this devastating illness means being able to implement best practices in public health, to explore new approaches, to talk to anyone and everyone about risk and prevention. Freedom of speech and freedom of belief feed an effective public health response. Engaging sex workers to stem the spread of HIV requires building trust and ending stigma and discrimination--isn't it counterintuitive to force organizations to pledge opposition to one of the groups most at risk of HIV infection? Isn't it irresponsible, if not dangerous, to exclude the contributions of people affected by a pandemic?
The government of Brazil thought so. In 2005, it rejected $40 million in U.S. HIV/AIDS funding because of the APLO's potential to damage the government's partnership with sex workers in addressing Brazil's HIV epidemic. Brazil considered sex workers essential partners for the development and implementation of effective HIV prevention and treatment programs. It would rather lose $40 million than compromise what it considered to be a public health best practice in defeating HIV. And it would rather depend on its own successful policies than be compelled to adopt the U.S. government's opinion--not something one would expect from a country that defines itself as a champion of free speech.
It turns out Brazil was right to be wary. Research published in the Journal of the International AIDS Society in March 2013, found that because of the APLO, organizations have limited or eliminated HIV prevention and treatment programs targeting sex workers. Furthermore, in its 2013 Congressionally-mandated evaluation of PEPFAR, the Institute of Medicine noted that the implementation of the APLO, "...is seen by a range of stakeholders in the global health community as impeding access to HIV services for sex workers and as a missed opportunity for PEPFAR to more effectively contribute to the HIV response in partner countries and to the reduction of HIV transmission."
It is known by now that the U.S. has a flawed policy that undermines HIV prevention and treatment, in addition to flouting the First Amendment. It is the worst of what we have to offer the world: instead of the power to heal and the freedom to think independently, we aid and abet a plague, and restrict ideas that are out of line with a superficial view of morality. Our commitment to the First Amendment is proven when we allow it to stand in situations that are not to our liking, but are for the public good. This is one of those times.
Today, we need more open discussion and debate about public health, not less. Current law stands in the way of the discussion and independent thinking necessary to find an end to the HIV epidemic. Putting aside our own prejudices about sex work, the Supreme Court is being asked to give public health organizations and experts--who know better than legislators what it takes to fight HIV--the freedom they need to do their jobs effectively. In short, the justices need to grant the right to fight HIV.
Have no doubt that we need it.