Undermining Human Rights and Global Fight Against HIV/AIDS, Supreme Court Affirms Anti-Prostitution Pledge

Human rights and and public health advocates on Monday denounced a ruling by the right-wing majority of the U.S. Supreme Court that upholds a provision of federal law requiring foreign affiliates of U.S. organizations to have a policy "explicitly opposing prostitution" in order to receive taxpayer funding to combat HIV/AIDS around the world.

"The court ruled the U.S. can use foreign assistance to impose harmful anti-sex-worker ideologies that don't advance health or rights."
--Amanda M. Klasing, HRW

Amanda M. Klasing, a senior researcher at Human Rights Watch (HRW), slammed the provision as "offensive" and called the ruling "a step back for human rights and public health."

"Sex workers around the world face violence and discrimination and need access to safe healthcare. The court ruled the U.S. can use foreign assistance to impose harmful anti-sex-worker ideologies that don't advance health or rights," tweeted Klasing.

"Donor governments should be promoting global health funding by supporting decriminalization of sex work, ensuring sex workers do not face discrimination, and encouraging safe and healthy work environments and social safety nets," she added.

The high court's 5-3 ruling (pdf) in Agency for International Development v. Alliance for Open Society International pertains to the Anti-Prostitution Loyalty Oath (APLO) that passed as part of the President's Emergency Plan for AIDS Relief (PEPFAR) in 2003. Justice Brett Kavanaugh, an appointee of President Donald Trump, wrote the majority opinion.

The court had ruled in 2013 that the anti-prostitution pledge couldn't be applied to U.S. groups because it violated their First Amendment rights. However, Kavanaugh, backed by the other four conservatives, concluded that "foreign affiliates are foreign organizations, and foreign organizations operating abroad possess no rights under the U. S. Constitution."

Justice Stephen Breyer's dissenting opinion in the case was joined by Justices Ruth Bader Ginsburg and Sonia Maria Sotomayor. Justice Elena Kagan was recused from both this case and the previous one in 2013, likely because of her work as U.S. solicitor general before joining the high court.

The Associated Press noted that the federal program in question has spent nearly $80 billion to fight the spread of HIV/AIDS. Preston Mitchum, director of policy at URGE: Unite for Reproductive & Gender Equity and an adjunct professor at Georgetown University Law Center, warned on Twitter that the ruling "will bring horrible health implications."

The International Women's Health Coalition (IWHC) echoed that warning in a statement Monday from Shannon Kowalski, the group's director of advocacy and policy.

"The Supreme Court has doubled down on a flawed policy that harms sex workers and makes it harder for them to get the information, services, and support they need to prevent HIV," Kowalski said. "Justice Kavanagh and the majority of justices who joined him, have taken a decision that flies in the face of evidence and will further punish and stigmatize those who work in the sex industry."

As IWHC explained:

The APLO is a problematic policy because it has resulted in cuts to funding for community-based and community-led organizations that are best placed to serve sex workers. It has undermined effective HIV responses by stigmatizing and marginalizing sex workers, whose involvement in designing and implementing HIV programs is essential for their success. And, the policy has also contributed to the proliferation of harmful strategies that are counter to both evidence and human rights: the criminalization of the sex industry is the primary driver of HIV risk and violence against sex workers.

The group urged Congress "to act to repeal this provision and to ensure that PEPFAR and other U.S. global health programs uphold the human rights of sex workers."