Law & the Courts

Supreme Court Upholds Anti-Prostitution Requirement for Groups Fighting AIDS Abroad

The Supreme Court Building in Washington, D.C., March 18, 2020 (Tom Brenner/Reuters)

The Supreme Court on Monday upheld a requirement that foreign affiliates of U.S.-based health organizations pledge to oppose prostitution and sex trafficking in order to receive federal funding to combat HIV and AIDS overseas.

The court ruled 5-to-3 that the government may enforce the pledge, with Justice Brett Kavanaugh penning the opinion for court’s conservative majority.

The court ruled previously in 2013 that the pledge against prostitution, which comes from a 2003 law, cannot be imposed upon U.S. groups because it violates their First Amendment rights. However, the justices ruled this time around that the foreign affiliates of U.S. health groups are counted as foreign organizations in this circumstance, and the pledge may be imposed on them. The Trump administration had argued that as foreign groups, the affiliates do not have the same free speech rights under the constitution as U.S. health groups do.

The “plaintiffs’ foreign affiliates are foreign organizations, and foreign organizations operating abroad possess no rights under the U.S. Constitution,” Kavanaugh wrote for the majority.

Justice Elena Kagan was recused from the case.

Chief Justice John Roberts wrote for the majority in the 2013 case that the pledge infringed on the constitutional rights of U.S. health groups because it forced them “to pledge allegiance to the government’s policy of eradicating prostitution.” Justice Clarence Thomas dissented from the majority in that case, arguing that the government is not constrained to remain neutral on prostitution on a First Amendment basis.

Some health organizations have argued that the requirement to publicly oppose prostitution hinders their ability to bring help to places where AIDS is rampant, such as brothels. The groups also said the anti-prostitution pledge causes confusion between the messaging of the domestic groups and that of their foreign affiliates, a claim Justice Neil Gorsuch challenged.

“What evidence is there that there is this risk of confusion or attribution, given that the domestic entity is free to disavow the statements of any foreign affiliates?” Gorsuch asked.

Since the program to combat HIV and AIDS began during President George W. Bush’s administration, the U.S. has spent $80 billion over the past 17 years to fight the sexually-transmitted disease abroad.

The Cooperative for Assistance and Relief Everywhere (CARE) and the Alliance for Open Society International were two of the groups who opposed the pledge.

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