A sex worker demonstrates the use of a female condom during an HIV/AIDS awareness campaign organized by a NGO in Siliguri, India, on February 15, 2010. (Reuters/Rupak De Chowdhuri)
Update: Conservative Republican Representative Chris Smith, who originally proposed the anti-prostitution pledge which the Supreme Court ruled unconstitutional today, issued a press release this evening denouncing the ruling. In it, he made the following allegation concerning the lead plaintiff, Open Society Foundations (OSF): “One does not have to search far into the Open Society’s website, for example, to see the extent to which providing this group with federal monies will enable it to encourage the spread of prostitution.” Of content readilly available on OSF’s website, none “encourages” prostitution, though there are several blog posts concerning this Supreme Court case. Neither Smith (who in the past has also made the false allegation that sex worker groups who had recieved US HIV/AIDS funds were “pimps” and had “hand[ed]… minor girls back into the hands of traffickers”), nor his office, have responded to further requests as to which content the Congressman was referring to.
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The United States may no longer compel US-based AIDS funding recipients to oppose prostitution as a condition of receiving federal funding. In a potentially far-reaching 6-2 decision (with Justices Scalia and Thomas dissenting, and Justice Kagan recused), the Court held today that under the First Amendment, these groups cannot be forced to adopt a government position in support of the eradication of prostitution.
“The Government suggests that if funding recipients could promote or condone prostitution using private funds, ‘it would undermine the government’s program and confuse its message opposing prostitution,’” the Court’s opinion begins. “But the Policy Requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the Government’s policy of eradicating prostitution. That condition on funding violates the First Amendment.”
The decision still leaves room, however, for limiting the use of government funds for programs’s activities—or even advocacy for activities—that the government opposes. (To support this, the Court cites Rust v. Sullivan, which concerned abortion and family planning.) But, critically, the Court’s decision today allows US-based organizations who carry out government-funded HIV prevention and treatment work to continue to do so, regardless of their stance on prostitution.
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All along, the government maintained that the anti-prostitution pledge was necessary to the US fight against AIDS, as outlined in the Global AIDS Act (or PEPFAR). In oral arguments before the court this April, a government attorney argued that because the United States took the position that “eradicating prostitution” is “central” to ending AIDS, this endowed the government with the power to mandate organizations seeking AIDS funds from the United States to oppose prostitution, even when it came to prevention and education activities they carried out with their own private funds. The pledge wasn’t used by the government to select the “best” groups for PEPFAR funding, but to ensure those groups selected would do nothing to contradict US policy in any of their work.
It was precisely these claims that made the government’s position so shaky, and ultimately, as the Court ruled, unsupported by the Constitution. Chief Justice Roberts, writing for the Court, was not impressed with the government’s use of only one case—Holder v. Humanitarian Law Project—to support its argument for restricting what a US funding recipient does with its private funds. “That case concerned the quite different context of a ban on providing material support to terrorist organizations,” wrote Chief Justice Roberts, “where the record indicated that support for those organizations’ nonviolent operations was funneled to support their violent activities.” (Dissenting, Justice Scalia retorted in his way that with this ruling, “If the organization Hamas—reputed to have an efficient system for delivering welfare—were excluded from a program for the distribution of US food assistance, no one could reasonably object.”)
One particularly disturbing element of the anti-prostitution pledge was simply how it was written. When initially introduced by Representative Chris Smith as an amendement to PEPFAR, it lumped together “prostitution and sex trafficking.” Though these are distinct phenomena, Congressman Smith often referred to both interchangeably—as when he claimed that an organization supporting HIV peer education and prevention among sex workers were “traffickers,” stating that the pledge was needed to keep US funds out of the hands of “pimps and traffickers.” Though the Court did not take up the issue of differentiating prostution and sex trafficking in the language of the pledge itself, in ruling as they did, they have declared the pledge is unconstitutional whether it related to prostitution or to sex trafficking.
As HIV/AIDS advocates, and in particular sex workers and AIDS projects that work with sex workers, celebrate this decision, some big questions remain about how this decision will play out in the real world of HIV work: in clinics, in drop-in centers, in brothels and karaoke bars—and in foundations’ own decisions about which organizations to fund.
“Our first reaction is of course to welcome the ruling,” Open Society Foundation’s (OSF) Public Health Program Director Marine Buissonniere told The Nation. OSF, a plaintiff on the suit, is a key funder globally on sex-worker health and rights. “The ruling will now allows recipients of USAID funding to operate without ideological interference from US government.” With the pledge struck down, “we no longer are being told we must ignore the years of evidence showing that we must partner with sex workers in order to address the AIDS pandemic.”
What the pledge accomplished in part was a chilling effect: as it was written so vaguely, and targeted opinion rather than activities, organizations were left to interpret it on their own. “We hope that this will re-open up the space for free expression of ideas, about what works and what doesn’t, in terms of HIV funding for sex workers,” said Buissonniere. “The immediate impact of this decision will be to lift the taboo on funding sex workers, which is something we’re excited to see.”
However, as the challenge to the anti-prostitution pledge concerned the First Amendment rights of organizations based in the United States—like Open Society Foundations, as well as Pathfinder International and InterAction, who joined them in the challenge—it could still be applied to organizations based outside the United States, to whom First Amendment protections are not extended.
“The implication for foreign NGOs remains murky,” Chi Mgbako, a professor at Fordham Law School focusing on sexual health and rights, told The Nation. “Many current and potential recipients of US global AIDS funding are foreign NGOs—they must also be free from the pledge. But today’s decision is an incredibly important step in the right direction—activists must keep pushing to ensure that this harmful policy is completely and fully repealed.”
The case today may have been won on First Amendment claims, but for the Supreme Court to strike down the anti-prostitution pledge can also be considered a win for sex workers’ rights issues more broadly, including the right to access healthcare. It comes at a moment when the tides are turning—as the Global Commission on HIV and the Law recently identified the criminalization of sex work as a significant factor in fueling the spread of HIV and in thwarting prevention efforts, and as Human Rights Watch adopted a position this May opposing the criminalization of sex work as a human rights issue.
“It’s a very hopeful thing to see,” said Anna Forbes, MSS, an independent consultant working on women and HIV prevention, “for the Supreme Court to apply the same level of reasonableness to sex work as an issue as they would apply to any other population. Hopefully, this will make sex work an acceptable topic for public discussion, which it has not been.” Still, Forbes told The Nation, “I think we’re going to have a struggle in this country, as we always do, on sexual and reproductive health issues, but I think at this moment we’re starting to go in a good direction. We’re starting to come to awareness that the rest of the world has come to consensus on this. The World Health Organization and UNAIDS policies on sex work are very clear on this issue. The US is beginning to think, ‘we are out of step on this.’ ”
The United States government itself may not have backed down today from its stance on not just criminalizing but also eradicating prostitution, but a blow has been struck. (A request for comment from the office of Representative Chris Smith, the anti-prostitution pledge’s chief supporter in Congress, has not yet been returned.) As the Supreme Court has ruled, HIV prevention can no longer be used as a political tool for furthering anti-prostitution politics.
