Implications of the U.S. Supreme Court Ruling on the Anti-Prostitution Loyalty Oath

File 1168

On June 20, 2013, the U.S. Supreme Court ruled in a 6-2 decision in Agency for International Development v. Alliance for Open Society International, Inc. that the Policy Requirement of the Anti-Prostitution Loyalty Oath, from the U.S. Leadership Act of 2003, violates the First Amendment, and is therefore unconstitutional.
 
A partial victory for the sex worker movement, it unfortunately makes no stated distinction between sex work and human trafficking, and it is not a defence of sex worker rights. However, this ruling may decrease stigma around sex work, by allowing organisations in the United States that receive PEPFAR funding to publically adopt a neutral stance towards sex work, and focus on implementing best practices for public health aims. 

 

Court Decision
Justice Roberts delivered the opinion of the court, stating alongside Justice Kennedy, Ginsburg, Breyer, Alito, and Sotomeyer, that even though the government can selectively fund certain programmes that agree with its spending prerogatives, it can not compel these organisations to publically adopt the views of the government.
 
The Court distinguishes between two clauses in the Anti-Prostitution Loyalty Oath. The first clause, the Policy Requirement, mandates explicit agreement with the Government’s policy to oppose prostitution. The second clause, the Spending Clause, allows Congress to fund private programmes or activities for the “general welfare” and to impose limits on funds that do not abide by the manner that Congress intends.
 
While the Court holds that the Spending Clause is constitutional, via Rust v. Sullivan, it rules that the first clause, the Policy Requirement, goes above and beyond the right of the federal government to ensure that private funds are not used in a way that undermines the government’s mission.
 
Justice Roberts opined that the existence of two clauses demonstrates they serve two different purposes; thus, the Pledge Requirement is different from simply exercising governmental discretion to “choose partners” in public health. It effectively violates freedom of speech.
 
In the opinion of the Court:
 
The Leadership Act’s other funding condition…ensures that federal funds will not be used for prohibited purposes. The Policy Requirement thus must be doing something more – and it is. By demanding that funding recipients adopt and espouse, as their own, the Government’s view on an issue of public concern, the Policy Requirement by its very nature affects ‘protected conduct outside the scope of the federally funded program.’ Rust, supra, at 197. A recipient cannot avow the belief dictated by the condition when spending Leadership Act funds, and assert a contrary belief when participating in activities on its own time and dime.
 
In a previous case, Rust v. Sullivan made it legal for Congress to selectively fund certain Title X family planning programmes, while prohibiting the funding of abortion – but allowing those same organisations to support outside “affiliates” that go against the government’s aims. However, in the case of USAID v. AOSI, the Court determined that:
 
When we have noted the importance of affiliates in this context, it has been because they allow an organization bound by a funding condition to exercise its First Amendment rights outside the scope of the federal program. Affiliates cannot serve that purpose when the condition is that a funding recipient espouse a specific belief as its own. If the affiliate is distinct from the recipient, the arrangement does not afford a means for the recipient to express its beliefs. If the affiliate is more clearly identified with the recipient, the recipient can express those beliefs only at the price of evident hypocrisy.

Therefore, according to the Roberts Court, it is not possible for an organisation to adopt one view, in accordance with the Federal Government, while financially supporting an outside organisation with the opposite view, without appearing hypocritical. This constitutes a restriction of the funding recipient’s ability to express its beliefs, which violates its First Amendment rights.
 
Implications for U.S. and International Organisations
There is little real change in terms of funding restrictions for both American and international organisations. Firstly, since the First Amendment only applies to U.S. citizens, the ruling does not alter pledge requirements for foreign organisations.
 
Secondly, there is also little practical change in funding restrictions for U.S. organisations, since a previous case in lower district courts, DKT v. USAID, had temporarily kept the Anti-Prostitution Loyalty Oath from being enforced among U.S. organisations since 2006.
 
Furthermore, since the ruling only applies to the Pledge Requirement portion of the act, the Court affirms that the U.S. government deems the 'eradication of prostitution' to be central to the fight against HIV, and upholds Congressional right to spend its funds on select programmes that agree with this mission. The Federal government can continue to not fund any specific programmes that may “promote” prostitution. However, it simply can no longer compel organisations receiving PEPFAR funding to publically adopt the same view, or control any private funding decisions by these organisations to use private money, not from PEPFAR, towards sex worker health.
 
In terms of alleviating stigma against sex workers, most reports in the American media during the week immediately following this decision continue to express a negative, or neutral-at-best, view towards sex work, emphasising that the government is in no way in support of prostitution. However, during this decade-long legal struggle, particularly in the past year since the International AIDS Conference and the Sex Worker Freedom Festival in Kolkata, many international organisations have come out in support of decriminalising sex work in the interest of public health, including the World Health Organization, the UN Global Commission on HIV and the Law, and Human Rights Watch.
 
This may signal a turning point in public opinion towards sex work – which gives our movement some momentum right now. It is crucial now that we build on this momentum in order to further progress towards sex worker human rights.