Why did John Roberts rule for sex workers?

Hint: His seemingly progressive digression belies a long game that could thwart major liberal goals

Published June 20, 2013 7:25PM (EDT)

Chief Justice John Roberts               (AP/Pablo Martinez Monsivais)
Chief Justice John Roberts (AP/Pablo Martinez Monsivais)

What would it take for Chief Justice John Roberts and Justice Samuel Alito to side with the court’s liberal justices and a coalition of left-leaning groups -- including advocates for sex workers -- as they did in a decision released today? Answer: if it’s about resisting the federal government attaching ideological conditions to its funds.

Agency for International Development v. Alliance for Open Society International, Inc., the so-called anti-prostitution pledge case, is a victory for groups who said that the restrictions prevented them from effectively reducing the spread of HIV by policing how they interacted with sex workers overseas. The decision was hailed by human rights groups from the ACLU to the Center for Health and Gender Equity. But the two conservative justices seem to have a long game in mind that could conflict with major progressive goals.

The case was brought in 2005 to challenge a Bush administration-era act of Congress that said that no funds “may be used to promote or advocate the legalization or practice of prostitution,” and that a group “that does not have a policy explicitly opposing prostitution” is ineligible for funding. The claim was that opposing prostitution was integral to eliminating the spread of HIV. “As a direct regulation,” wrote Roberts, “the Policy Requirement would plainly violate the First Amendment,” which was one of the key arguments made by the opponents of the law, who included NGOs based in the United States. “The question is whether the Government may nonetheless impose that requirement as a condition of federal funding.”

Although the court had held in 1991’s Rust v. Sullivan that the federal government could attach conditions on Title X family planning funding -- specifically, whether abortion could be discussed -- Roberts claimed this case was different, because the distinction is regulations “that specify the activities Congress wants to subsidize — and conditions that seek to leverage funding to regulate speech outside the contours of the federal program itself.” In other words, Planned Parenthood can separate its Title X funding from its activities related to abortion, so its free speech rights aren’t infringed upon by the Title X restrictions. “As a general matter,” Roberts went on, “if a party objects to those limits, its recourse is to decline the funds. In some cases, however, a funding condition can result in an unconstitutional burden on First Amendment rights.”

Why was this policy requirement different? Partly because it requires an affirmative statement from the organizations that they oppose prostitution: “By requiring recipients to profess a specific belief, the Policy Requirement goes beyond defining the limits of the federally funded program to defining the recipient.” He concluded, “We cannot improve upon what Justice Jackson wrote for the Court 70 years ago: “If there is any fixed star in our  constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Scalia, joined by Thomas, found that ridiculous; he argued that the government has every right to pick and choose its grantees according to their belief. “If the organization Hamas — reputed to have an efficient system for delivering welfare — were excluded from a program for the distribution of U. S. food assistance, no one could reasonably object,” Scalia wrote. “And that would remain true if Hamas were an organization of United States citizens entitled to the protection of the Constitution.” (It helped that he accepted the argument that working with sex workers without trying to reject sex work would undermine HIV prevention: “Elimination of prostitution is an objective of the HIV/AIDS program, and any promotion of prostitution — whether made inside or outside the program — does harm the program.”

So what's going on? Issues around prostitution and sex trafficking have long divided traditional allies and created strange bedfellows. In this case, feminist-identified groups like Equality Now and the Coalition Against Trafficking in Women supported the pledge, which was promoted by the Bush administration and conservative politicians like Rep. Chris Smith, while public health professionals advocating harm reduction and non-judgmental approaches to sex work opposed it. But this case had even more wild cards. One of the other amici was Heartbeat International, an organization of antiabortion crisis pregnancy centers, which says it has been subject to attempts at compelling speech, "including laws that compel the centers to provide disclaimers stating their positions on abortions and emergency contraceptives -- forcing the centers to raise these sensitive issues according to the government's timing and judgement rather than their own." They're referring to regulations intended to prevent the centers from tricking women into thinking they're visiting an abortion clinic, only to be given misleading information to try to talk them out of it.

That's why Harvard Law School professor Noah Feldman, writing at Bloomberg, sounded an alarm: "The politics of federal funding are changing, and conservative doctrine is changing with it," he wrote. "Once, the government was imposing morally conservative conditions, like the anti-abortion counseling rule in Rust or the anti-legalized-prostitution condition in the 2003 law. Now, in the wake of the Affordable Care Act, the conditions imposed by government can be liberal -- like Obamacare’s so-called contraceptive mandate that requires big organizations to provide contraceptives as part of their health-insurance plans. Conservatives are growing concerned that government conditions might impinge on individual liberty. Roberts and Alito, younger than Scalia and Thomas (and less constrained by long voting records), are more affected by this shift." In other words, while anti-HIV efforts have been handed a major victory today, beware of conservatives bearing gifts.

By Irin Carmon

Irin Carmon is a staff writer for Salon. Follow her on Twitter at @irincarmon or email her at icarmon@salon.com.

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