Supreme Court Rulings 2013: Government Can't Force NGOs to Oppose Prostitution

ByGabriel Grand

On Thursday morning, the Supreme Court decided the case of Agency for International Development v. Alliance for Open Society International, Inc. (USAID v. AOSI). In the 6-2 decision, written by Chief Justice John Roberts, the court ruled that a government policy which requires organizations to explicitly oppose prostitution and sex trafficking in order to receive federal funding for HIV/AIDS prevention programs violates the First Amendment.

At the heart of the USAID case lies a 2003 law titled "The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act" (the Leadership Act, for short). As part of the act's effort to combat the spread of HIV/AIDS internationally, Congress authorized the appropriation of billions of dollars to non-governmental organizations (NGOs) to help with AIDS education, prevention, and treatment.

The Alliance for Open Society International, which brought the case against the government, consists of NGOs who engage in anti-HIV/AIDS practices in countries like Uzbekistan, Tajikistan, Kyrgyzstan, Kenya, and India. Their work includes programs aimed at limiting injection drug use, preventing mother-to-child HIV transmission, and promoting safer sex practices.

The Leadership Act required these NGOs to have a policy "explicitly opposing prostitution and sex trafficking" in order to receive funding. According to the opinion, the Alliance NGOs feared that adopting such a policy would alienate their host governments. In addition, they worried that by speaking out against prostitution, it would be harder to work with prostitutes in the fight against HIV/AIDS, thus diminishing the effectiveness of their programs.

Claiming that the Leadership Act's mandate violated their First Amendment right to freedom of speech, the NGOs first brought the case to the U.S. District Court in 2005, which ruled in their favor in 2006. The government appealed, and in 2011, the U.S. Court of Appeals for the Second Circuit ruled that "Compelling speech as a condition of receiving a government benefit cannot be squared with the First Amendment."

The government again appealed the case to the Supreme Court, which reaffirmed the decision of the lower courts. Noting that the First Amendment "prohibits the government from telling people what they must say," the court struck down the portion of the Leadership Act requiring the anti-prostitution pledge.

The Court's ruling creates a potentially dangerous precedent for the government. It places limits on the extent to which the government can advance its own agenda and political views through the appropriation of federal funding.

As Justice Antonin Scalia points out in his dissenting opinion for the USAID case, the government leverages federal funding all the time to advance certain political ideologies. Every time the government supports sexual education programs that promote abstinence or provide counseling and treatment for drug addicts, it furthers its own moral and political beliefs. 

Thursday's ruling also retroactively casts doubt on the constitutionality of Obamacare. As the Catholic Church complained in early 2012, the Affordable Care Act requires church-affiliated hospitals and teaching institutions to provide employees with contraception benefits as part of their health insurance in violation of Catholic teachings and beliefs.

Does the USAID decision mean that the government can no longer have an opinion or promote certain views? Not quite. The ruling is very limited in scope, and as a result, doesn't quite blow the lid off of government programs like Obamacare. As Chief Justice Roberts explains, "Congress can, without offending the Constitution, selectively fund certain programs to address an issue of public concern."

But for whatever reason, the court has decided that in this particular instance, the government went too far. The whole scenario is a bit outlandish. Who would have thought that NGOs that aim to prevent HIV/AIDS would be so anxious about opposing prostitution?

Regardless, the Supreme Court's job isn't to ask questions like "Isn't prostitution a major vector of transmission for the HIV/AIDS virus?" but rather to deal with the narrow legal question presented.

While it seems unlikely that the removal of the Leadership Act's restrictions on NGOs will actually help to fight HIV/AIDS, we can rest assured that the integrity of the Constitution remains intact. The court has spoken, and as usual, its message to Americans could not be more clear:

The government may or may not sometimes never have the authority to use federal funds to promote certain viewpoints, depending on the situation.*

*certain restrictions may apply