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.
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.
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.