The Supreme Court of the United States ruled today that the federal government can limit funding for international organizations based on their policy positions. In the 5-3 decision of Agency for International Development v. Alliance for Open Society International, Inc, SCOTUS ruled that the United States government is free to require international affiliates of U.S. organizations that receive US aid to comply with certain guidelines, if they are to continue receiving American taxpayer funding. The majority in that decision were Justices Brett Kavanaugh, John Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch.
Today’s decision involved a rule of the federal government’s international aid agency, USAID, which was upheld. USAID’s rule says that foreign affiliates of humanitarian organizations must have policies opposing prostitution and sex trafficking in order to receive any US funding to combat HIV/AIDS, Tuberculosis, and Malaria. Foreign organizations said this rule was a violation of their free speech, but SCOTUS’ ruling said that international affiliates do not have First Amendment rights under the U.S. Constitution.
In terms of abortion, this ruling could allow the federal government to withhold funding from international organizations, even those affiliated with organizations in the United States, which commit abortions or refer for abortions.
The ruling relates to the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, known as the Leadership Act, signed in 2003 by President George W. Bush. Through that Act, Congress gave billions of dollars to American and foreign nongovernmental organizations to fight HIV/AIDS abroad; however, Congress only funded organizations that agreed to have a “policy explicitly opposing prostitution and sex trafficking.” This condition was established because it was understood that prostitution and sex trafficking had a large role in the spread of HIV/AIDS and were “degrading to women and children.”
After legal challenges to the Act in 2015, SCOTUS determined that this was unconstitutional in that it went against the freedom of speech of organizations within the United States because it required US-based non-government organizations “to pledge allegiance to the Government’s policy of eradicating prostitution.” However, the Leadership Act still applied to foreign organizations.
Today, SCOTUS ruled that in the case of international affiliates receiving U.S. aid, and found that “as a matter of American constitutional law […] foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution.” Additionally, SCOTUS stated that the “plaintiff’s foreign affiliates were incorporated in other countries and are legally separate from plaintiffs’ American organizations.” Despite their affiliation, the international branches of theses organizations are legally distinct from the American branch.
“Those two bedrock principles of American constitutional law and American corporate law together lead to a simple conclusion: As foreign organizations operating abroad, plaintiffs’ foreign affiliates possess no rights under the First Amendment,” wrote the majority in the SCOTUS decision.
When President Donald Trump first took office, he issued an executive order to end the U.S. funding of such organizations and reinstated the Mexico City Policy to include all organizations that support abortion, not just those involved with so-called “family planning.” In 2019, the Trump Administration further broadened the Mexico City Policy, denying federal funds to foreign non-governmental organizations that then distribute funding to other abortion-friendly international groups.
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