Yesterday’s Supreme Court’s 6-2 decision in US Agency for International Development v. Alliance for Open Society International invalidated the “anti-prostitution pledge.” Advanced by religious and other anti-human-trafficking groups, this provision was integrated in the Leadership Act–the law that authorized the Bush Era’s flagship PEPFAR initiative to fight HIV/AIDS. At issue in this case was the Act’s condition that any recipient of US funds to fight AIDS and related diseases must first adopt an organization-wide “policy explicitly opposing prostitution and sex trafficking.” With only Thomas and Scalia dissenting, the Court’s conservative and liberal voices joined to find that the pledge provision runs afoul of the First Amendment. Going beyond merely dictating how the funds could be spent, this clause actually mandates private entities to “espouse as their own the Government’s [policy] view.”
Although decided strictly on First Amendment grounds, this decision also has important implications for the fight against HIV/AIDS and other public health programming. Around the world, sex workers have an elevated risk for HIV and other infectious disease; they can also transmit these infections to clients and others. Public health evidence clearly demonstrates that successful efforts to curb disease transmission in this population require sex worker input, participation, and trust. Statements about annihilating sex work cannot be squared with these basic tenets. This is especially true when the requisite policy position conflates all sex work with human trafficking–a highly controversial and inaccuratecharacterization. Beyond merely stymying programming, the pledge requirement alienates potential recipients, including those best positioned to implement HIV prevention and treatment. As public health organizations and researchers argued in their amicus brief to the Supreme Court in the Alliance case, the pledge requirement actually hinders the public health goals of the Leadership Act.