For all the misery it has caused over the past three decades, the AIDS pandemic has taught us volumes about how plagues evolve and how social forces shape them. Some of the most important insights have come from places like Majengo, the teeming Nairobi slum where AIDS first appeared in East Africa.
Sex and secondhand T-shirts are subsistence commodities in Majengo, and the district’s 2,000 sex workers were largely defenseless when HIV arrived in the early 1980s. An ebullient, 90-pound nurse named Elizabeth Ngugi was offering condoms and STD treatment out of a makeshift clinic, but the women had grown weary of people in white coats.
“Nobody had ever gone to these women and said, ‘You are human!’ “Ngugi recalled when I visited her clinic years later. “So I walked in the mud and I talked with them in the alleys where they work. I said, ‘Hey! Do you have a problem with sexually transmitted diseases? We are here! We won’t judge you! You are children of God!’”
Penicillin wasn’t the only thing Ngugi had to offer. Individually, her patients were powerless to hold out for condoms; a balky client could just take his 50 shillings next door. But the dynamic quickly changed after she helped the women form a united front. When they stood together for safer sex, condom use rose from 4% to more than 90%—an increase that has since prevented 6,000 to 10,000 new HIV infections each year in Majengo.
“You can’t just tell people to make better choices,” she said with a husky, derisive laugh. “You have to give them the power and the tools!”
No one denies that prostitution can be dangerous, demeaning work. But health experts long ago recognized that sanctions and stigma make it far more harmful. Today, the empowerment model that Ngugi pioneered in Majengo is recognized as best practice by authorities ranging from UNAIDS to the World Bank and the World Health Organization. So why is the Obama administration in the Supreme Court this week, fighting to enforce a policy that flouts all available evidence?
When Congress launched this country’s multibillion-dollar global AIDS program in 2003, it barred support for “any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.” Congress also declared that if an organization used federal funds “to promote or advocate the legalization or practice of prostitution”—a phrase vague enough to cover almost any community mobilization effort—the group would lose its funding and have to repay all past support.
Health advocates have sued repeatedly to block this provision, claiming that it not only undercuts their work but violates their constitutional right to free speech. A U.S. district court granted them an injunction in 2006, freeing U.S. organizations from the stricture. A federal appeals court affirmed that decision in 2011, and the drama has now reached the U.S. Supreme Court—where the Obama administration is facing off against an army of its usual public-health allies to uphold the prostitution pledge.
From the administration’s perspective—and the court’s, for that matter—the issue is not whether the pledge is bad health policy but the narrower one of whether violates the First Amendment. Justice Department lawyers say Congress has every right to choose suitable partners for a government initiative. After all, they argue in their Supreme Court brief, “private entities that do not wish to comply with [the prostitution pledge] may avoid [it] simply by declining federal funds.” What the service groups decry as “enforced speech” is just a voluntary decision “to assist in carrying out a comprehensive governmental HIV/AIDS strategy that, among other things, aims to reduce behaviors like prostitution…”
Throughout the brief, the Justice Department’s lawyers conflate prostitution and sex trafficking as “activities that help to spread the disease,” and they characterize the forced pledge as a way to ensure that the government’s partners share a commitment to “eradicating” such practices rather than “promoting” them–as if those were the only alternatives.
“If the government were to fund a campaign urging children to ‘Just Say No’ to drugs,” the lawyers write, “we do not doubt that it could require grantees to state that they oppose drug use by children.”
But the appeals court has decisively rejected the analogy. In upholding the 2005 lower court’s injunction, the appeals panel reasoned that demonizing drugs would be the whole point of a ‘Just Say No’ campaign. “That is not so here,” the judges declared. “The stated purpose of [the AIDS program] is to fight HIV/AIDS, as well as tuberculosis and malaria. [The government] cannot now recast the global HIV/AIDS-prevention program as an anti-prostitution messaging campaign.”
The injunction has freed U.S. organizations to engage sex workers rather than condemn them, but the prostitution pledge is still paralyzing community-based organizations in the countries where they’re most needed. Writing in the Journal of the International AIDS Society, researchers recently described how the vague U.S. mandate has effectively shut down drop-in centers, stalled campaigns to prevent violence against sex workers, and crippled programs that train them to educate their peers about safer sex. The threat of sanctions has also silenced small grantees from reporting successes that could help other groups strengthen their own programs.
The Bush administration was notorious for politicizing public health, but the prostitution pledge flies in the face of Obama’s usual approach. His administration’s widely praised blueprint for creating an AIDS-free generation notes that “stigma, discrimination and fear of violence or legal sanctions often undermine [sex workers’] access to health care, including HIV services.” And this administration has never disputed the United Nations principle that “community empowerment and the meaningful participation of sex workers … are central to reducing HIV risk and vulnerability.”
So why the intransigence? The Justice Department clearly believes it must uphold congressional intent, regardless of the merits. Do federal health officials agree? Does the U.S. Global AIDS Coordinator want to enforce this retrograde rule? “We can’t comment on that,” a spokeswoman explained when I asked.
As lawyers for both sides re-argued the case this week, the Supreme Court justices offered few clues about how they would rule. The saga will end in May or June, when the court releases its opinion. And a loss for this president will be a victory for health and human rights.