On Monday the U.S. Supreme Court heard arguments in USAID v AOSI. Open Society, along with a coalition that includes Pathfinder International and InterAction, is challenging the United States’ anti-prostitution pledge requirement. This requirement states that any organization receiving government money to fight HIV and AIDS internationally must adopt a policy “opposing prostitution.” This sweeping language violates free speech because it forces a policy viewpoint on an organization’s privately funded work—not just the program the government is funding. During Monday’s arguments, Justice Alito expressed alarm that compelling such speech was a “dangerous proposition.”
In reply, the government tried to argue there were limits to the speech it wanted to require—it’s ok to make recipients say something, they suggested, so long as it’s “germane” to the goals of the government program. And they went on to say that opposing prostitution was, after all, an effective response to HIV. But—let’s pause for a moment to ask:
When fighting HIV and AIDS, does it really make sense to condemn the very people you’re trying to reach?
A host of public health school deans, professors, and other HIV and AIDS experts argue that the prostitution pledge flies in the face of effective public health programming. In a collective brief for this case, they state that “the requirement constricts the speech available in the public health sphere, distorts the empirical process of gathering data and adapting best practices, and ultimately harms the very population that [the Government’s] funds were meant to help.”
It must be understood that in addressing the global HIV and AIDS crisis, it is crucial to work in partnership with sex workers. Global HIV prevalence among female sex workers is estimated at 11.8 percent—a rate fourteen times higher than women in the general population. And evidence suggests that male and transgender sex workers may be even more disproportionately impacted by HIV.
Around the world, sex workers are at higher risk of sexually transmitted infections because of unsafe working conditions and the lack of access to quality health services. Evidence suggests that sex workers’ risk of HIV infection is inextricably related to their marginalized and illegal status, which drives their work underground and increases police abuse and exploitation. Even the government’s HIV and AIDS program states that “even where services are theoretically available, sex workers face substantial obstacles to accessing HIV prevention, treatment care and support, particularly where sex work is criminalized.”
Open Society believes that an effective response to HIV and AIDS must address the structural factors that affect sex workers—including the punitive laws and policies that criminalize their work. And we are not alone. The United Nations Development Program’s Global Commission on HIV and the Law calls on States to repeal discriminatory laws that impede the response of countries to the HIV and AIDS epidemic, echoing recommendations to governments from the World Health Organization, UNAIDS, and UNFPA to decriminalize sex work. In fact, in order for the U.S. government to continue to work with some of these frontline organizations, it explicitly—and inconsistently—exempted a few of them from the prostitution pledge requirement.
Ironically, under this policy requirement even the government’s top supporter, the Coalition Against Trafficking in Women, would be prohibited from receiving government funding, since its brief states that it is “firmly opposed to placing criminal penalties or stigma of any kind upon prostituted persons.”
Understanding the pledge requirement in this context, it becomes clearer how un-germane and, in fact, harmful a requirement to oppose prostitution is in the fight against HIV and AIDS. During Monday’s hearing, Justice Alito said that he was not aware of any case where the Supreme Court allowed Congress to “condition Federal funding on a recipient’s agreement with ideas with which the recipient disagrees.”
For the Supreme Court to do so now would be a travesty to both the First Amendment and to public health.