Brett Kavanaugh’s Anti-Sex Work Decision Could Have a Devastating Impact on Abortion Rights

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Analysis Law and Policy

Brett Kavanaugh’s Anti-Sex Work Decision Could Have a Devastating Impact on Abortion Rights

Lisa Needham

This decision is similar to the global "gag rule" that requires overseas organizations to agree to the Trump administration's anti-choice stance for funding.

Though Monday’s U.S. Supreme Court decision in June Medical Services v. Russo—which confirmed that anti-abortion admitting privileges laws are unconstitutional—offered a welcome respite, it wasn’t all good news from the Court when it comes to sexual health, rights, and justice.

In Agency for International Development v. Alliance for Open Society International (AID v. AOSI), the conservative wing of the Court ruled Monday it was just fine with the government ordering organizations to deliver a message they disagree with—in this case, forcing U.S. organizations working to combat HIV and AIDS overseas to sign on to a moralizing statement condemning sex work in order to receive federal money.

Justice Brett Kavanaugh, handpicked by President Donald Trump to ensure a drastic reduction of bodily autonomy when it comes to sex, wrote the majority opinion affirming what conservatives do best when it comes to the First Amendment: using it to find fresh new ways to discriminate.

The plaintiffs in this case literally do lifesaving work: They run programs to limit injection drug use in Uzbekistan and to prevent mother-to-child HIV transmission in Kenya—and they have programs that counsel people at high risk of getting HIV, like sex workers.

Sex. Abortion. Parenthood. Power.

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Forcing the plaintiffs and their foreign affiliates to proclaim they are against sex work creates a real risk that sex workers may feel nervous about working with those organizations. It also means organizations can’t work with overseas groups that believe there are better, safer ways to decrease the risk for sex workers than just shaming them.

The Court had actually decided this issue in 2013, with the same parties in play. Back then, the Court held that these U.S. organizations had a First Amendment right not to be forced to deliver a message—like, “we condemn and will eradicate sex work”—that they fundamentally disagreed with. In Monday’s ruling, though, Kavanaugh drew an odd distinction between the foreign affiliates these U.S. agencies work with and the agencies themselves, saying the federal government has the right to tell the former what to say.

With that sleight of hand, Kavanaugh says the government can’t force U.S. nonprofits to sign onto the statement—but, magically, when those organizations work with their foreign affiliates, the foreign affiliates can be compelled to say whatever the government wants them to say.

At first glance, it might seem like this case flies in the face of all the other times the conservative justices worried about free speech, such as whether an anti-gay baker can be asked to bake a cake for a same-sex couple or whether an anti-choice private company has to allow their employees to get birth control.

That interpretation only makes sense, though, if you believe those cases were really about the First Amendment and not about the conservative ideology of policing sexual behavior. Once you remember that’s the real goal here, it’s easy to see why Kavanaugh and the other justices decided as they did. It isn’t about freedom of speech. It’s about the freedom to discriminate.

The conservative argument against having the anti-gay cake shop bake a cake for a same-sex couple goes like this: If the baker has to make a wedding cake for those folks, they’re being forced to say same-sex marriage is fine. That’s a super attenuated argument: simply making a product that is used at a wedding reception for a same-sex marriage might make people think the anti-gay baker actually likes same-sex marriage. But that’s basically what Justice Clarence Thomas said in his concurrence in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

The Court throws all that out the window with AID v. AOSI. Unlike the long daisy-chain of reasoning in Masterpiece Cakeshop, here the U.S. government is literally forcing these organizations to say an anti-sex work statement they don’t agree with. Not a cake, not whether to provide birth control, but an actual compulsion of speech: The government demands you say these words about this thing. But Kavanaugh wriggles out from under that by saying the government isn’t making those organizations say anything. It’s just making their foreign affiliates do it.

These organizations use the same name, the same logo, the same branding, the same fonts, and the same pictures. If a foreign affiliate of AOSI, or of any similar organization, is forced to say they condemn sex work, it most certainly will be assumed that AOSI agrees with that stance—even though the Supreme Court already decided AOSI couldn’t be compelled to say something it disagreed with.

The whole thing is distressingly similar to the Trump administration’s global “gag rule,” which blocks foreign aid to any organization that either performs abortions or refers patients for abortion care. It’s an incredibly broad prohibition now that the administration extended it to global health funding unrelated to family planning, such as HIV prevention efforts.

And with the Trump administration placing similar restrictions related to abortion on organizations that provide global and domestic family planning services, it’s not difficult to imagine conservative Trump judges using the same logic to uphold those restrictions should lawsuits challenging those gag rules land before the Roberts Court.

The global gag rule is drying up funding for overseas organizations unless they agree to the Trump administration’s anti-choice stance. With this new court decision, global health organizations that won’t—or can’t—sign on to an anti-sex worker pledge will also severely lack funding. It’s all just another way that this administration is hellbent on making sure that fundamentalist Christian views about sex and sexual health are not just imposed on U.S. citizens but also on the whole world.