Bioethics Forum Essay

The Supreme Court and the Fight Against AIDS

The salience of the Constitution’s spending clause to the public’s health is not often appreciated–empowering the federal government to “provide for the common Defense and general Welfare.” But the power to spend–along with the equally vital power to tax–provides government with authority to allocate vast resources for biomedical research, health care, and prevention/wellness services.

The spending power also provides the ancillary authority to set conditions on the receipt of federal funding. While the Rehnquist and Roberts courts have limited other constitutional powers–such as the commerce power–they have afforded the federal government vast discretion in setting funding conditions for the public’s health. National highway dollars, for example, are tied to states setting the minimum drinking age at 21 years. The Supreme Court’s recent refusal to allow the Affordable Care Act to withhold all Medicaid funding to states that refuse to expand Medicaid eligibility may have been its first significant constraint on the spending power.

What if the spending power were used to mandate a different set of conditions that require grant recipients to conform to state orthodoxies on controversial social/political matters? The President’s Emergency Plan on AIDS Relief (PEPFAR) requires all grantees to sign a pledge opposing prostitution and sex trafficking. Grants can be withdrawn at any time if the government deems the recipient’s words or activities are “inconsistent” with the pledge.

Normally the Supreme Court goes along with government’s attempts to stifle differing opinions through the spending power. InRust v. Sullivan, for example, the court upheld the “gag rule,” which forbade the use of Title X family planning funds to counsel or promote abortion services. More recently, the court saw no constitutional defect when the government threatened to cut university funding drastically if law schools refused to allow military recruiters on their campuses. (Law schools were boycotting military recruiters to protest against the “don’t ask, don’t tell” policy).

In Agency for International Development v. Alliance for Open Society International the Supreme Court placed its most significant constraint yet on government censorship through its spending power. Chief Justice Roberts said PEPFAR’s anti-prostitution loyalty oath violates the First Amendment by compelling grant recipients to adopt and espouse, as their own, the government’s view on a vital public issue–the moral disapproval of commercial sex work.

Why isAlliance for Open Society Internationala good decision for the global fight against AIDS, as well as for public health more broadly? Certainly, commercial sex work and trafficking harms girls and women, fueling HIV transmission. (It is important to realize that boys and men also are exploited through sex work and trafficking). But AIDS organizations need to actively engage at-risk populations. Announcing opposition to commercial sex work drives marginalized individuals underground, inhibiting access to testing, counseling, and treatment. Rather than disapprobation, international institutions such as UNAIDS and WHO urge empowerment and de-stigmatization of sex workers. By treating sex workers as partners in prevention, it becomes possible to demand safer working conditions for vulnerable girls and women, such as by expanding access to testing and pre-exposure prophylaxis with antiviral drugs (PrEP), along with violence prevention.

The public health sciences, moreover, are empirically driven. As the public health amici stated to the court, determining the most effective prevention strategies requires “differing viewpoints be expressed, different methods be tested, and different results be discussed.” Commandeering public health organizations to adhere to the state’s viewpoints has real-world consequences.

Beyond the public health utility of engaging sex workers, there are fundamental values at stake. A free marketplace of ideas demands uninhibited inquiry, open exchange of information, and a broad diversity of views. Nowhere is this more important than in the public health sciences, where the robust examination of hard behavioral problems demands exploring socially disfavored methods such as needle exchange, condom distribution in prisons, and decriminalization of HIV transmission.

Instead of demanding conformance with its own position, government should nurture open scientific inquiry, the dissemination of critical ideas, and the testing of best practices. The spending power should unleash free and informed conversation on society’s most complex problems, rather than stifling it.Alliance for Open Society Internationaladvances free expression, and perhaps future courts may revisit harsh conditions of funding, exemplified in theRustgag rule.

Lawrence O. Gostin is University Professor and Founding O’Neill Chair in Global Health Law at Georgetown University, where he serves as Faculty Director, O’Neill Institute for National and Global Health.

Conflict of Interest Disclosure:Prof. Gostin joined in the Amicus Curiae brief by Deans and Professors of Public Health for the Supreme Court in Alliance for Open Society International.

Posted by Susan Gilbert at 07/26/2013 10:28:03 AM |

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