WASHINGTON – The Supreme Court convened by telephone Tuesday to guard against one pandemic while debating another.
The court picked up where it left off seven years ago in trying to balance two worthy goals: preventing the spread and improving treatment of HIV/AIDS in developing nations while standing firm against prostitution and sex trafficking.
In its second day of an experiment prompted by the novel coronavirus – conducting oral argument by telephone and live-streaming it to the public – the justices appeared comfortable with the new format.
Associate Justice Elena Kagan was recused from the case, as she was in 2013, most likely because she was involved on the government’s side when she served as U.S. solicitor general in 2009-10. That left only eight justices on the phone.
Her absence did not seem critical, however, as most justices appeared to side with nonprofit groups challenging a requirement that their foreign affiliates receiving federal funds to combat HIV/AIDS must go on record opposing prostitution and sex trafficking.
The court in 2013 ruled 6-2 that U.S. organizations could not be subject to that requirement because it infringed on their free speech rights and could harm their mission, which requires working with prostitutes. The new case involves the rights of foreign affiliates.
“How does it interfere one whit less?” Associate Justice Stephen Breyer asked the Justice Department’s lawyer, Assistant Solicitor General Christopher Michel. “They will be seen … as hypocrites or, worse, interfering with their mission.”
Chief Justice John Roberts expressed a similar concern. Usually, a nonprofit’s domestic and foreign affiliates “have the same name, the same logo, the same brand,” he said.
But several conservatives on the court, including Associate Justices Samuel Alito and Brett Kavanaugh, expressed concern that freeing foreign entities from the pledge opposing prostitution and sex trafficking could have implications for other areas of U.S. foreign policy.
For the second consecutive day, Associate Justice Clarence Thomas joined in questioning attorneys for both sides by phone, something he rarely does in the courtroom. Thomas dissented when the case involving domestic nonprofit groups was heard in 2013, reasoning that the First Amendment does not require the government to remain neutral on the issue.
The United States has invested $80 billion over 17 years in the international fight against HIV/AIDS begun by President George W. Bush and continued in the Obama and Trump administrations. The money has paid dividends, bringing AIDS treatment to more than 15 million people in sub-Saharan Africa.