SCOTUS to Review Anti-Prostitution Law in AIDS Funding

Does the U.S. government have the right to set conditions—say, requiring recipients of public funds to denounce prostitution and sex trafficking—before it gives money to groups that combat sexually transmitted diseases like AIDS?

The U.S. Supreme Court is expected to decide the issue later this year, but the question is why must American taxpayers fund this legal battle in the first place? It involves a provision that requires private health organizations, mostly overseas, to have explicit policies that oppose prostitution and sex trafficking before getting AIDS funding from Uncle Sam.

Each year, the U.S. government spends billions of dollars to help people in this country and around the world who are living with AIDS. In 2003 Congress passed legislation requiring groups seeking federal money to publicly announce that they oppose prostitution and sex trafficking because they are serious factors in the spread of the deadly virus. It’s not uncommon for the government to attach conditions like this before doling out federal funds.

But a handful of organizations that get U.S. money and work in South America, Africa and Asia challenged the law in court, claiming that the anti-prostitution mandate violates their constitutional right to free speech. It also compromises their institutional integrity, interferes with prevention outreach to sex workers and takes a toll on their international credibility, they claim in court documents.

In 2005 a federal judge ruled in their favor and a federal appellate court subsequently affirmed the decision, asserting that the mandate unfairly requires the groups to espouse the government’s viewpoint. “Compelling speech as a condition of receiving a government benefit cannot be squared with the First Amendment,” the appeals court says in its decision. “Here, silence, or neutrality, is not an option for Plaintiffs. In order to avoid losing Leadership Act funding, they must declare their opposition to prostitution.”

The U.S. appealed and last week the Supreme Court agreed to hear the case. Arguing against Supreme Court review, the AIDS groups said that many international agencies actually support lesser penalties for prostitution as part of their broader strategy to combat the disease. In urging the high court to consider the case government attorneys note that Congress passed the anti-prostitution measure because prostitution and sex trafficking contribute to the spread of AIDS. Arguments will likely be held sometime in spring with a decision expected by summer.

Here is the official word from the President’s Emergency Plan for AIDS Relief (PEPFAR), the nation’s multi-billion-dollar initiative to combat the disease; on its official government website it says that the Anti-Prostitution Loyalty Oath (APLO) has been shown to have a negative impact on prevention efforts because it undermines the most effective approaches to working with sex workers, who are “among the most marginalized people in any society.” It’s essential that organizations work with them “non-judgmentally,” according to PEPFAR.