Supreme Court Upholds Bush-Era Policy Endangering Women’s Health

The U.S. Supreme Court’s much anticipated abortion decision in June Medical Services v. Russo, and Wednesday’s “devastating” ruling prioritizing employers’ religious beliefs over women’s rights, seem to have overshadowed another important opinion impacting women’s reproductive health: Agency for International Development v. Alliance for Open Society International, involving overseas HIV/AIDS funding.

In an opinion written by Brett Kavanaugh and handed down the same day as June Medical, a conservative majority of the Court upheld a Bush-era law requiring overseas affiliates of U.S. organizations to adopt an organization-wide policy explicitly opposing prostitution in order to receive federal anti-HIV/AIDS funds.

Supreme Court Upholds Bush-Era Policy Endangering Women’s Health sex workers
At the Red Umbrella March for Sex Work Solidarity on June 11, 2016 in Vancouver. (Sally T. Buck / Flickr)

The plaintiffs in the case argued that compelling anti-prostitution speech violated their First Amendment rights and impeded effective HIV/AIDS programs, especially those targeted at people involved in the sex trade.

“This ruling is disconcerting and shameful,” said Serra Sippel, president of the Center for Health and Gender Equity (CHANGE), which promotes sexual and reproductive health and rights globally. “The [anti-prostitution loyalty oath] hurts public health outcomes and it has always been bad policy. Social stigmas that disproportionately impact and undermine the sexual and reproductive health rights of people across the globe do not belong in our nation’s foreign aid programs.”

The federal law applies to organizations receiving funds from the President’s Emergency Plan for AIDS Relief (PEPFAR), which over the last 17 years has distributed 80 billion dollars to support both U.S. and foreign non-governmental organizations to address the global HIV and AIDS epidemic.

In 2013, the U.S. Supreme Court ruled that Congress cannot compel a U.S.-based funding recipient to “adopt a particular belief as a condition of funding” because that would limit their constitutionally protected right of free speech, but that foreign NGOs are not entitled to this constitutional right of free speech. That decision left open the question of whether the federal government could require an anti-prostitution pledge from legally distinct foreign entities operating overseas that are affiliated with US organizations.

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“The Supreme Court upheld the U.S. government’s quest to impose its harmful ideological agenda on U.S. organizations and restrict their right to free speech,” said Patrick Gaspard, president of the Open Society Foundations. “The Anti-Prostitution Pledge compromises the fight against HIV by impeding and stigmatizing efforts to deliver health services. Condemnation of marginalized groups is not a public health strategy.”

Advocates argue that the anti-prostitution pledge policy reduces the effectiveness of ongoing HIV programs, promotes stigma and discrimination against sex workers, and prevents sex workers from accessing effective HIV programs and services—putting the health of people in the sex trade in jeopardy.

The policy has caused organizations to fear that their PEPFAR funding will be at risk if they provide any services to sex workers, and so have eliminated these services from their programs.

According to CHANGE, “Some organizations find that publicly opposing sex work while also providing social and health services to sex workers both further stigmatizes sex workers and is hypocritical.”

Supreme Court Upholds Bush-Era Policy Endangering Women’s Health sex workers
A sex workers rights Protest at San Francisco City Hall in March 2008. (Eliya Selhub / Flickr)

Research shows that the most successful HIV prevention and treatment programs are those with sex worker involvement and leadership through community mobilization and peer-led approaches. But these sex worker-led organizations overseas are now barred from PEPFAR funding if they refuse to adopt the anti-prostitution measures required by the U.S. government. This exclusion of sex workers from HIV and AIDS prevention, care, and treatment programs undermines the global goal of achieving comprehensive HIV and AIDS control, argued the plaintiffs.

Justices Breyer, Ginsburg and Sotomayor dissented, arguing that the majority incorrectly treated U.S.-based NGOs and foreign affiliates as separate entities, when in fact the U.S. organizations merely “speak through clearly identified affiliates that have been incorporated overseas.”

Breyer warned that the majority’s decision could “seriously impede the countless American speakers who communicate overseas.”

Justice Elena Kagan recused herself due to her previous involvement in the issue as solicitor general under President Obama.


Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor of American Studies and the chair of the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at or follow her on Twitter @CarrieNBaker.