Justices wary of tying AIDS money to prostitution pledge

In its second day of arguments by phone, the US Supreme Court appeared skeptical of a requirement that foreign affiliates of U.S.-based health organizations denounce prostitution as a condition of receiving taxpayer money to fight AIDS around the world.

The justices on Tuesday heard a new version of a case they decided seven years ago involving a federal program that has spent nearly $80 billion to combat the spread of HIV/AIDS.

The court ruled in 2013 that the anti-prostitution pledge, contained in a 2003 law, improperly restricts the U.S. groups’ constitutional rights. The new question is whether the administration can subject foreign organizations to the pledge.

Chief Justice John Roberts, who wrote the 2013 opinion, was among several members of the court who suggested there might not be much of a difference in the new case because in many countries the U.S. organization has to work through a foreign partner. “The effort would not be as effective if the American entity were the one actually on the ground in the foreign country,” Roberts said, kicking off the questioning as he did Monday.

As also happened Monday, the justices and two lawyers representing the administration and the organizations met by telephone, with live audio available to the public. The court scheduled the arguments by phone because of the coronavirus pandemic.

Justice Clarence Thomas, formerly known for his silence at arguments, asked questions for the second day in a row, and Justice Sonia Sotomayor once again forgot to unmute her line. “I’m sorry, chief. Did it again,” she said.

Only eight justices took part. Justice Elena Kagan is sitting out the case, presumably because she worked on an earlier version of the case when she served in the Justice Department before joining the court.

The justices took up the Trump administration’s appeal to distinguish between the domestic organizations and their foreign affiliates in their anti-AIDS programs.

Lower federal courts ruled that there is no real difference between the U.S. and foreign-based groups, which do AIDS prevention work in more than 100 countries.

The administration argues that the foreign groups don’t have the same rights as their domestic counterparts. The U.S. organizations can receive the money without stating their opposition to prostitution and sex trafficking, Justice Department lawyer Christopher Michel told the justices.

The program, enacted during President George W. Bush’s administration, has been a foreign policy success on a par with the Marshall Plan to rebuild Europe after World War II, Michel said.

David Bowker, representing the organizations, said people generally don’t distinguish between the domestic and foreign labels of the groups. “They lose their integrity, their reputation and their brand when they’re forced to talk out of two sides of their mouth,” Bowker said.

His clients include InterAction, Global Health Council, Pathfinder, World Vision and Save the Children.

Some justices worried that a ruling for the groups could have broader implications for restrictions the government sometimes attaches to U.S. foreign aid.

“I’m concerned it will force Congress to withhold foreign aid entirely or to allow foreign aid to be used in ways that are contrary to the interests of the people of this country,” said Justice Samuel Alito, who was part of the majority in 2013.

Roberts said in that case that the government could not force the U.S. groups to “pledge allegiance to the government’s policy of eradicating prostitution.”

Roberts, Alito, Sotomayor and two other justices, Stephen Breyer and Ruth Bader Ginsburg, were part of the majority in 2013 and remain on the court.