SCOTUS Strikes Down Pro-AIDS Anti-Prostitution Law on First Amendment Grounds

 

 

 

A law requiring organizations who fight AIDS by educating and protecting sex workers to explicitly oppose prostitution and sex trafficking or lose their funds has been struck down by the Supreme Court on First Amendment grounds. This frees anti-AIDS organizations to collaborate with sex workers, who are very important allies in the war on the spread of HIV, without fear of losing their funding.

The case, Alliance for Open Society International v. United States Agency for International Development, challenged the constitutionality of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003. The law forced organizations to oppose sex work and human trafficking in statement and deed or lose their federal funding, and is being challenged on the basis that violates the right to free speech.

The justification for the law is that organizations should oppose prostitution and sex slavery because they greatly contribute to the spread of HIV. This jives with World Bank research  which found that “HIV prevalence among female sex workers was 13.5 times the overall HIV prevalence among the general population of women 15–49 years old.”

Yet there has never been any reason to think that requiring organizations to disavow prostitution or sex slavery will do anything to prevent prostitution or sex slavery.

There is reason, however, to expect that working with prostitutes to encourage safer sex will slow the spread of HIV. A study by the UNAIDS Inter-Agency Task Team on Gender and HIV/AIDS found that “preventing transmission among [sex workers] is a cost-effective intervention as it can also help avert the spread to members of the wider population.”

Another UNAIDS report: “Sex workers are among those most likely to respond positively to prevention programmes relating to HIV and sexually transmitted infections (STIs)—for example, by increasing their use of condoms with clients.”

Helping and educating sex workers is essential to slowing the spread of HIV. Unfortunately, the Anti-Prostitution Loyalty Oath requirement hamstrings efforts to do just that.

How to kill effective AIDS prevention efforts

The Anti-Prostitution Loyalty Oath requirement made anti-AIDS organizations leery of continuing their life-saving work supporting prostitutes for fear of being accused of supporting prostitution. The Huffington Post reports that a study in the Journal of the International AIDS Society found that the APLO has led organizations to limit or eliminate HIV prevention and treatment programs which work with sex workers. The Journal of the International AIDS Society found that organizations have stopped helping sex workers, finding a “gradual phase-out of services, cessation of seeking US government HIV funds and increasing isolation of sex workers.”

The President’s Emergency Plan for AIDS Relief (PEPFAR) studied implementation of the oath. It found that it “undermined the most effective approaches to working with sex workers.”

The Huffington Post also reported that the Institute of Medicine discovered that the APLO is “impeding access to HIV services for sex workers and as a missed opportunity for PEPFAR to more effectively contribute to the HIV response in partner countries and to the reduction of HIV transmission.”

Back in 2005, before the law was enforced and before any of these studies came out, Brazil saw the writing on the wall. The country rejected $40 million in U.S. HIV/AIDS funding so that the oath would not tear apart the relationship AIDS workers had established with sex workers to combat the spread of HIV together.

Melissa Mira Grant puts it well for the Nation. “In what way, then, can PEPFAR effectively reduce HIV among sex workers, when it’s also producing an environment where those best positioned to support them are cut off from the resources to do so?”

For these reasons, and due to First Amendment implications, organizations as diverse as the Bill and Melinda Gates Foundation, the New York Times editorial board, the Cato Institute and liberal philanthropist George Soros opposed the law. The Guardian has a longer list of groups who submitted an amicus brief to the supreme court in opposition.

Before President Obama began calling the opposition to nationalizing the costs of birth control a “war on women,” his administration began enforcing the APLO. He didn’t justify it by claiming it would help slow the spread of AIDS. That would be crazy, for reasons MSNBC.com health policy reporter Geoffrey Cowley explains: “Health experts long ago recognized that sanctions and stigma make [sex work] far more harmful.” He says the policy “flouts all available evidence.”

No the Obama administration basically just said that organizations who want to actually help sex workers instead of fighting them can GTFO:

“Congress has wide latitude to attach conditions to the receipt of federal assistance in order to further its policy objectives,” the Obama administration argues in its brief. “Private entities that do not wish to comply with those conditions may avoid them simply by declining federal funds.”

Well, alrighty then.

What’s the real purpose?

The law wasn’t written to slow the spread of AIDS by fighting prostitution and human trafficking. It only has exacerbated the AIDS problem while having no effect on the sex trade. The law was written to appease anti-prostitution groups, such as Apne Aap Women Worldwide. It’s founder, Ruchira Gupta, contends that “groups seeking wide distribution of condoms, including at brothels, to fight AIDS are inadvertently helping and legitimizing the prostitution industry.”

Never mind that these groups are also effectively slowing the spread of AIDS. For someone who has “battled the sex trade in India for more than a quarter century,” fighting prostitution (and in the process putting them in greater danger) is better than saving lives by fighting alongside prostitutes (and in the process making them safer.) This isn’t how you effectively fight AIDS, it’s how you fight women who choose prostitution.

Sex workers aren’t sex slaves

One way for anti-prostitution groups to gain legitimacy and further their goals is to blur the line between sex work and slavery. Anti-prostitution campaigners lump all sex work in with slavery and human trafficking, pushing for harsh penalties for customers and traffickers.

In the War on Sex Workers, Melissa Mira Grant called out Norma Ramos, head of the Coalition Against Trafficking in Women for pushing for the U.N. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.

Norma Ramos and her allies wanted the protocol, which is intended to formally define trafficking across U.N. programs and to promote collaboration among U.N. member states in order to protect the rights of people who are trafficked, to define all prostitution as “trafficking.”

However, just like there is a huge difference between work and slavery, prostitution is not human trafficking. Defining all sex work as slavery is hugely problematic for several reasons, both immediate/practical and theoretical/ideological. Immediately and practically, it leads to laws like the APLO, which punish organizations for helping sex workers and make sex work more dangerous.

The theoretical and ideological problem with lumping prostitution in with slavery is that it is a huge and troubling exception to self-ownership. You do not own yourself if you can be deprived of the right to sell it because all such transactions amount to slavery. Willing exchange is necessarily not slavery. The assertion that sex is a unique service which cannot be willingly sold is a bold claim which requires proving.

Wendy McElroy sums up the theoretical and ideological problem with lumping prostitution in with slavery well:

Prostitution is… a financial exchange. At this point, individualist feminists rise to defend the free market as well as a woman’s self-ownership. This is expressed by the question: “Prostitution is a combination of sex and the free market. Which one are you against?”

It is difficult to differentiate, especially from the outside, sex work and human trafficking. That’s one reason one of the most effective ways to combat sex trafficking is to work alongside sex workers. In addition, factors which prevent women from taking other work, such as poverty and sexism, muddy the waters around consent. However, there is still a huge difference between choosing to take work that’s far from ideal because you think it’s the best option available and being forced to work against your will. Criminalizing sex work will never end the practice, it’s the world’s oldest profession after all. But it does make distinguishing between the two much more difficult, as the threat of punishment pushes voluntary sex work into the shadows, making the workers’ ages and their level of consent more difficult to verify and track.

This is a huge win for anti-AIDS organizations, sex-workers and their customers, and limited government.

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