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Justices Hear HIV/AIDS-Tied Case While Scattered by Pandemic (1)

May 5, 2020, 3:34 PMUpdated: May 5, 2020, 7:01 PM

Another pandemic was the focus of U.S. Supreme Court arguments Tuesday morning: the HIV/AIDS pandemic.

On day two of the high court’s unprecedented livestream oral arguments, the justices seemed likely to strike down the requirement that foreign entities adopt an explicit policy against prostitution and sex trafficking in order to receive federal funding to combat human immunodeficiency virus and acquired immune deficiency syndrome abroad.

The court struck down the same requirement as it applied to U.S. entities in 2013, saying that it’s “a basic First Amendment principle that freedom of speech prohibits the government from telling people what they must say.”

But those U.S. entities say they’re still being compelled to speak since their foreign affiliates are required to follow the requirement. “They speak as one, make speech and policy decisions together, and are indistinguishable to the public,” said WilmerHale attorney David Bowker, who argued for the U.S. groups in both cases.

There’s no way for the American entity to disavow the foreign affiliate’s policy “without appearing hypocritical and without appearing to engage in doublespeak,” Bowker said.

They share “the same name, same logo, same brand,” observed Chief Justice John Roberts.

Even so, the entities are separate legal entities, said attorney Christopher Michel, arguing for the federal government. That has advantages and disadvantages, he added. They have to “accept the bitter with the sweet.”

Since passing the Leadership Act in 2003 to help tackle the disease, the U.S. “has committed nearly 80 billion dollars to global AIDS relief, and it has worked, saving more than 17 million lives in the most successful American foreign aid effort since the Marshall Plan,” Michel said.

But the Supreme Court’s prior case law suggests that the First Amendment is less concerned with legal formalities than with perception, Justice Sonia Sotomayor said.

She pointed to the court’s 2014 decision in Burwell v. Hobby Lobby finding that closely held corporations could get an exemption from Obamacare requirements based on the religious objections of their owners.

It is really “reasonable to insist on formal corporate ties” here? Roberts asked.

Some justices were concerned what impact the case could have for other federal programs.

What “concerns me today is not so much the immediate impact of a decision in your favor but where it would lead,” Justice Samuel Alito told Bowker. “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.”

Justice Brett Kavanaugh asked if the government could require entities working in the Middle East to “explicitly recognize Israel as a legitimate state” in order to get funding.

“I think that’s a harder case,” Bowker responded. But he added that applying the policy “to foreign members of these tight-knit international entities fighting HIV/AIDS overseas puts words in the mouths of the U.S. members of those entities.”

Michel, though, suggested that was an exaggeration. All that’s required of the foreign entities is that the “make the statement in a letter to USAID.” They aren’t required “to shout it from the mountaintops.”

The case came before the court amid a two-week session during which counsel are literally phoning in their arguments while the Supreme Court abides social distancing requirements necessitated by the coronavirus outbreak.

For the second day in a row, Sotomayor seemed to forget to take herself off mute before asking questions.

“I’m sorry, chief, I did it again,” Sotomayor said after Roberts’ prompts.

The case is USAID v. Alliance For Open Society International, Inc., U.S., No. 19-177, argued 5/5/20.

(Updates with additional argument dialogue.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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