An anti-prostitution provision in a federal AIDS funding program created under the George W. Bush administration was struck down as unconstitutional by the U.S. Supreme Court on Thursday
The decision is a victory for private aid organizations that believe the provision, which required them to explicitly oppose prostitution and sex trafficking as a condition for getting federal dollars, has blocked them from serving at-risk AIDS populations, such as sex workers.
The 6-2 decision, written by Chief Justice John G. Roberts Jr., said it is a violation of the First Amendment to require people “to pledge allegiance to the government’s policy of eradicating prostitution” as a funding condition.
Associate Justice Elena Kagan, who was the Obama administration’s solicitor general before joining the court in 2010, recused herself from the case. Associates Justice Antonin Scalia and Associate Justice Clarence Thomas dissented.
The provision — sometimes called the “prostitution pledge” — was part of the U.S. Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003. The act includes the $4.5 billion President’s Emergency Plan for AIDS Relief (PEPFAR).
The law says its funds cannot be used “to promote or advocate the legalization or practice of prostitution or sex trafficking.” But it went further, asking that grant recipients adopt that same viewpoint and sign a pledge that they “explicitly” opposed prostitution and sex trafficking.
That requirement “to profess a specific belief” went too far, the majority wrote, affirming a 2011 decision by the 2nd Circuit Court of Appeals that struck down the pledge.
Rep. Christopher H. Smith, New Jersey Republican, called the ruling “extremely disappointing and tragic for all victims of sexual exploitation, including sex trafficking.”
He and other lawmakers had put the pledge into the PEPFAR program as a way to ensure that the U.S. government didn’t unwittingly fund or promote commercial sex activities — “pimps and brothel owners” — as part of the battle to stop the spread of HIV/AIDS.
“The U.S. taxpayer may well now legitimately question whether U.S. assistance being given for laudable purposes is being administered by hands that undermine those very goals,” said Mr. Smith, chairman of the global human rights panel on the House Foreign Affairs Committee.
Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, praised the ruling, saying, “I have noted time and again that we cannot successfully combat HIV/AIDS by ignoring commercial sex workers who transmit the disease.”
The Alliance for Open Society International (AOSI) and three other AIDS-fighting groups challenged the law as an unconstitutional violation of free speech.
“Today’s ruling is an important victory toward lifting the taboo that has plagued HIV prevention programs since the anti-prostitution pledge began,” said Marine Buissonniere, director of the Open Society Public Health Program.
“It is critical to work in concert with sex workers and their advocates in the fight against HIV and AIDS. Condemnation and alienation are not public health strategies,” she said.
The U.S. Agency for International Development, which oversees PEPFAR, was sued in the case.