SCOTUS strikes "prostitution pledge" requirement for AIDS, human trafficking grants

Excerpted from "Supreme Court says law can’t dictate anti-AIDS groups’ speech, Washington Post, June 20, 2013 - The Supreme Court ruled Thursday, June 20 that it is a violation of the First Amendment for the federal government to force groups to endorse the government’s views opposing prostitution in order to receive funding to combat AIDS overseas. The justices ruled 6 to 2 that a requirement in a multibillion-dollar anti-AIDS program withholding money from organizations that do not have a policy “explicitly opposing prostitution and sex trafficking” violates their free-speech rights.
 
“This case is not about the government’s ability to enlist the assistance of those with whom it already agrees,” wrote Chief Justice John G. Roberts Jr. “It is about compelling a grant recipient to adopt a particular belief as a condition of funding.”

The provision at the center of the court’s ruling Thursday is of a 2003 law under which the United States is spending $60 billion to combat infectious diseases worldwide. It forbade any of the money being used to “promote or advocate the legalization or practice of prostitution or sex trafficking,” which are ways the diseases can be spread.

Justices Antonin Scalia and Clarence Thomas dissented. Scalia said the government was not coercing speech but simply acquiring partners who share its beliefs.

“The First Amendment does not mandate a viewpoint-neutral government,” Scalia wrote. “The government may enlist the assistance of those who believe in its ideas to carry them to fruition; and it need not enlist for that purpose those who oppose or do not support the ideas. That seems to me a matter of the most common sense.”

Commentary

CMA Vice President for Government Relations Jonathan Imbody: "Some colleagues who focus on religious liberty issues had filed briefs opposing the 'prostitution pledge' provision. They reasoned that its allowance would let the government unconstitutionally dictate the ideological views of any organization that receives government funding. These groups understandably feared strengthening the Obama administration's attacks on religious liberty, buttressing local governments' attacks on pregnancy centers through speech requirements, and squeezing out campus student groups that decline to conform to university dogma on social issues.

"Other religious liberty colleagues, such as the American Center for Law and Justice, reasoned--rightly, in my view--that requiring grantees to supply proof of opposition to prostitution was an eminently reasonable requirement to further the goals of a government health program that hinges on stopping prostitution. The anti-prostitution requirement in this view, does not restrict the free speech of anyone--it just keeps the government from paying for speech opposed to the goals of this particular program, which provides funding on a completely voluntary basis.

"Whatever one might conclude regarding the theoretical impact of this case on religious liberty, what remains undeniable and real are the immediate harms, from a pro-life, anti-trafficking and anti-AIDS perspective, that result from this ruling:

• more money to groups that see prostitution as legitimate 'sex work' rather than as an evil to be eradicated--including pro-abortion and pornography groups (like DKT International, which had filed a similar suit);
  
  
• a blow to efforts to eradicate prostitution, along with prostitution's threat to public health and its degradation of and violence against women and children;
  
  
• the prospect of yet more forced and elective abortions, resulting from relying on condom distribution programs and unionization of prostituted women and children rather than rescuing them out of sex trafficking and other forms of prostitution."

Resources
Read the complete CMA/Freedom2Care blog posting on the decision
Continuing Education for Human Trafficking - A Primer for the Healthcare Professional
Prostitution pledge sign on letter to President Bush