In their second day of hearing arguments by phone for the first time in history, justices on the United States Supreme Court appeared sceptical of a requirement that foreign affiliates of US-based health organizations denounce prostitution as a condition of receiving taxpayer money to fight AIDS around the world.
The justices heard a new version of a case they decided seven years ago involving a federal programme that has spent nearly $80bn 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 US groups’ constitutional rights.
The new question before the court is whether the administration of US President Donald Trump can subject the foreign organisations to the pledge.
As they did on Monday, the justices and two lawyers representing the administration and the organisations met by telephone, with live audio available to the public. The court scheduled the arguments by phone because of the coronavirus pandemic.
Lower federal courts ruled that there is no real difference between the US and foreign-based groups, which do AIDS prevention work in more than 100 countries.
Former lawmakers including Senate Majority Leaders Bill Frist, a Republican, and Tom Daschle, a Democrat, took issue with the administration’s stance.
“Congress understood that an effective HIV/AIDS-fighting strategy requires not only collaboration with foreign governments and organizations, but also efforts by certain organizations to work directly with sex workers. These relationships require trust,” they said in a court filing.
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 US organisation 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.
Justice Clarence Thomas, formerly known for his silence during 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 US Department of Justice before joining the court.
The administration argued that the foreign groups don’t have the same rights as their domestic counterparts. The US organisations can receive the money without stating their opposition to prostitution and sex trafficking, Justice Department lawyer Christopher Michel told the justices.
The programme, enacted during former 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 organisations, 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.
Bowker’s clients include InterAction, the 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 US 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 that in that case, the government could not force the US 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.