The U.S. Supreme Court ruled Monday that allows the federal government to distribute AIDS funding to foreign affiliates of U.S. groups on the condition they explicitly oppose prostitution and sex trafficking.

The 5-3 decision split along ideological lines with Justice Brett Kavanaugh writing for the majority. Justice Elena Kagan recused herself from the case because she was previously involved as solicitor general under the Obama administration.

Congress passed a law in 2003 that allocated billions of dollars to fight HIV/AIDS internationally. The law required that all organizations receiving funds “have a policy explicitly opposing prostitution and sex trafficking.”

Nongovernmental organizations based in the U.S. litigated the provision, arguing the law violated the First Amendment when applied to organizations in the U.S. The Supreme Court decided in 2013 by a 6-2 vote that such a condition was unconstitutional. Four of the U.S. organizations continued to argue that the law is also unconstitutional when enforced against their foreign affiliates in the recent case.

Kavanaugh’s majority opinion stated that foreign entities do not have constitutional protections, writing, “it is long settled as a matter of American constitutional law that foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution.”

The majority argues that foreign affiliates operate as separate entities and are therefore subject to a different set of legal obligations. The speech regulations, the court says, comes from foreign entities voluntarily affiliating themselves with American organizations, not the American government.

Writing the dissent on behalf of the court’s liberal bloc, Justice Stephen Breyer argues that foreign affiliates are not distinct entities because stateside NGOs “speak through clearly identified affiliates that have been incorporated overseas.” He worries that the court’s decision will weaken essential speech protections.

“I fear the Court’s decision will seriously impede the countless American speakers who communicate overseas in a similar way,” Breyer wrote, “That weakens the marketplace of ideas at a time when the value of that marketplace for Americans, and for others, reaches well beyond our shores.”

Open Society Foundations, one of the organizations involved in the lawsuit, says the new decision will impede efforts to provide healthcare abroad.

“The Anti-Prostitution Pledge compromises the fight against HIV by impeding and stigmatizing efforts to deliver health services. Condemnation of marginalized groups is not a public health strategy,” the organization’s president, Patrick Gaspard said.

Sources: The Hill 06/29/20; SCOTUS Blog 06/29/20; Jurist 06/29/20

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