Supreme Court Considers Anti-Prostitution Pledge In HIV/AIDS Funding Case At issue is whether the government can require private nonprofits to denounce prostitution in order to qualify for U.S. foreign aid grants aimed at fighting the worldwide AIDS epidemic.
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Supreme Court Considers Anti-Prostitution Pledge In HIV/AIDS Funding Case

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Supreme Court Considers Anti-Prostitution Pledge In HIV/AIDS Funding Case

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Supreme Court Considers Anti-Prostitution Pledge In HIV/AIDS Funding Case

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ARI SHAPIRO, HOST:

It was Day 2 of telephone arguments at the U.S. Supreme Court today. The justices heard arguments over a case that involves U.S. government foreign aid grants, private nonprofits and the AIDS epidemic. The question - can the government require the foreign affiliates of those nonprofits to denounce prostitution in order to qualify for certain grants? This is the second time the court has faced this issue, as NPR's legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: In 2003, Congress, at the urging of President Bush, enacted a major foreign aid program to fight HIV/AIDS and prevent new infections. In appropriating the money, Congress put in a provision requiring any private organization that got a grant to adopt a policy denouncing prostitution. In 2013, the Supreme Court struck down that provision, declaring that it unconstitutionally interfered with the U.S. nonprofits' free speech rights.

Today the case was back. But this time, the question was whether foreign organizations closely affiliated with the U.S. nonprofits can be required to adopt that same policy denouncing prostitution. Defending the provision was assistant solicitor general Christopher Michel. He argued that foreign affiliates of Save the Children Care and World Vision are separate from their parent U.S. organizations. Chief Justice John Roberts, who wrote the 2013 decision, had this colloquy with Michel.

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JOHN ROBERTS: Is it reasonable to insist on formal corporate ties in this context? I gather that it's undisputed that, to be effective in many of the foreign countries involved here, you have to operate through a foreign entity.

CHRISTOPHER MICHEL: If they make the choice to operate through a foreign entity because they decide that that is more convenient or more effective, they have to accept the bitter with the sweet.

ROBERTS: You know, they have the same name, the same logo, the same brand. And I wonder if it makes more sense to think of the foreign entity as simply another channel for the domestic entity's speech.

TOTENBERG: Next up was David Bowker (ph), representing the nonprofits that are challenging the requirement that their foreign affiliates denounce prostitution. Questioned by Justice Clarence Thomas, Bowker said that the harm suffered by the U.S. NGOs is that their foreign affiliates must lose their funding or undermine their mission by denouncing the very people they need to work with, namely prostitutes. And if the foreign affiliates make the pledge needed to get funding, the U.S. parent organizations have to disavow their foreign affiliates' anti-prostitution pledge, thus harming the entire anti-AIDS fight.

(SOUNDBITE OF ARCHIVED RECORDING)

DAVID BOWKER: It's a Catch-22 for these U.S. organizations.

TOTENBERG: Justice Stephen Breyer followed up.

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STEPHEN BREYER: So why don't you simply write a grant to get all the money yourself and then you give it to Care India? Why doesn't that work?

TOTENBERG: Because, replied Bowker, under the statute, Care U.S.A. would be required to impose the policy requirement on its own affiliate. Justice Samuel Alito, who signed on to the court's 2013 decision, said he had more concerns in this case.

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SAMUEL ALITO: I am concerned that it will force Congress either 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.

TOTENBERG: Justice Brett Kavanaugh had this question.

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BRETT KAVANAUGH: The government says that your position would unleash foreign affiliates of U.S. corporations to pump money into the U.S. election process. And I wanted to give you a chance to respond to that claim.

TOTENBERG: I disagree, said Bowker; that's entirely different because it's a restriction on speech that does not apply to U.S. organizations at all.

Nina Totenberg, NPR News, Washington.

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