Research and health projects stalled by the abrupt cutting off of US funding, may be in for a reprieve following the US Supreme Court yesterday denying the Trump administration's request to block a lower court order on foreign aid funding.
The court did not immediately say when the money must be released, allowing the White House to continue to dispute the issue in lower courts, a CNN report says.
The Washington Post reports that the ruling by a sharply divided Supreme Court now clears the way for the State Department and USAid to restart nearly $2bn in payments.
The 5-4 order directed the lower court to clarify what obligations the government must fulfill to global health groups for work already completed, with consideration of the "feasibility of any compliance timelines."
Chief Justice John G Roberts Jr and Justice Amy Coney Barrett joined the court's three liberal justices in rejecting the administration's emergency request in the High Court's first significant action on lawsuits related to President Donald Trump's initiatives in his second term.
The decision drew a vigorous dissent from four conservative justices who said a District Court judge in DC probably lacks the power to compel the federal government to make such payments.
"Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars? The answer to that question should be an emphatic 'No,' but a majority of this Court apparently thinks otherwise. I am stunned," wrote Justice Samuel A Alito Jr, who was joined by Justices Clarence Thomas, Neil M Gorsuch and Brett M Kavanaugh.
A federal judge in DC had ordered the money to begin flowing last week, after the Trump administration appeared to flout an earlier ruling that said a 90-day freeze on all foreign aid was imposed too hastily and should be lifted for now.
But the government appealed the 26 February deadline, saying it would take weeks longer for USAID and the State Department to resume payments for work completed before 13 February.
Wednesday's decision was the first major test before the Supreme Court of Trump's blitz of executive orders and firings in the opening weeks of his presidency. The administration is already facing more than 100 lawsuits challenging its actions in lower courts, so other rulings are sure to follow.
"Ordering the United States to pay all pending requests under foreign-aid instruments on a timeline of the district court's choosing, without regard to whether the requests are legitimate, or even due yet, intrudes on the President's broad foreign-affairs powers and upends the systems the Executive Branch has established to disburse aid," Acting Solicitor-General Sarah M Harris wrote in a filing Monday.
The lawsuit seeking to restart the funding was brought by the AIDS Vaccine Advocacy Coalition and the Global Health Council. They said the Trump administration had defied a temporary restraining order by Ali that initially required payments to begin again in mid-February.
The organisations said the freeze had pushed aid groups to the brink of insolvency, forced layoffs and delayed lifesaving HIV drugs and food assistance to unstable regions worldwide. They said in court filings that the government created an 'emergency of its own making' by falling to comply with the TRO.
"Today's ruling by the Supreme Court confirms that the Administration cannot ignore the law. To stop needless suffering and death, the government must now comply with the order issued three weeks ago to lift its unlawful termination of federal assistance," the groups said in a statement after the ruling.
A senior USAID official was placed on leave Sunday after circulating memos saying the spending freeze will result in "preventable death, destabilisation, and threats to national security on a massive scale."
The memos estimate that the pause in foreign aid could cause as many as 166 000 more malaria deaths annually, 200 000 more cases of polio and 2m to 3m more deaths a year from shuttering immunisation programs, the filing said.
The legal battle over the foreign aid freeze will now continue in the lower courts, where the global health groups have asked for a preliminary injunction – a more permanent stop than a temporary restraining order – against the pause.
Meanwhile, in SA government is working on a contingency plan to address the massive fall-out from US health funding cuts, but scientists are calling for more urgent, robust action to fill the massive gap, saying the move has catastrophic consequences for science and health research.
There is little hope that the SA Government will be able to step forward with any significant contributions.
Government does not have the resources to take over the functions which had been supported by Pepfar. Epidemiologist Professor Salim Abdool Karim, the director of the Centre for the Aids Programme of Research in SA (Caprisa), said: “I don’t think the government has the resources to do what Pepfar did… provide $400m a year.”
The Trump administration’s devastating orders were “clearly designed to create fear and to cause maximum harm”, he said.
Abdool Karim has long advocated for the South African Government to phase out Pepfar and fund its own HIV/Aids response, but said this abrupt and “brutal” approach by the Trump administration risks unnecessary and dire consequences.
He told News24 it was critically important that treatment programmes are prioritised in any new support plans drawn up by the government – which, he said, had hired Deloitte to assist with data analysis of Pepfar's partners.
Health Minister Aaron Motdoaledi told IOL: “We are busy with this process; we have met many people and found the complexity of what is involved. We have hired Deloitte & Touche. They said it will take them about a month just to go into this thing. We have discovered that part of this money is not going to patients; again, it’s going to administration – huge amounts of money.”
The abrupt termination of US support to more than 50 countries has created widespread turmoil and panic, and in South Africa, consternation and heartbreak as thousands of staff lose their jobs and vital projects and research programmes are brought to a sudden, grinding halt.
“The whole region is in deep trouble at the moment. It really lets the tiger out of the cage again,” Desmond Tutu HIV Foundation COO Linda-Gail Bekker, a member of the Community Health & HIV Advocates Navigating Global Emergencies (Change) lobby group, told Business Day, and whose voice is among those clamouring for action from the government.
“This affects people who have literally put their hearts, minds, imagination and lives into building novel, ground-breaking programmes, which have taken many years and have suddenly just been terminated,” Mark Heywood, a health and human rights activist with a long history of work in the HIV/Aids sector, told Daily Maverick.
Pepfar funding constituted 17% of South Africa’s R44.4bn campaign for HIV counselling and testing.
Termination of key services
Around 50 countries have been affected, with nearly 5 800 awards being terminated: only around 500 have been retained, according to a Reuters report.
The cut also affected health programmes that were supported by USAID funding from sources other than Pepfar.
Among those international organisations that received a termination notice from USAID was the United Nations Programme on HIV/Aids.
While the exact number of South African organisations affected was not immediately clear, Lynne Wilkinson, a Gauteng-based public health specialist in the HIV/Aids sector, said she had yet to hear of any USAID-funded health programme that hadn’t received a termination notice.
‘Pushed off a cliff’
In SA, Pepfar funding has been focused on “hard-to-reach gaps”, such as supporting children and pregnant women, and key population and community-based services, she added.
“This wasn’t a duplication of government services. It was complementary, providing that final push to achieve those 95-95-95 targets and reduce our infections and our HIV and TB mortality. This is the entire HIV and TB programme put at risk of unravelling across public sector facilities, communities and key population services.”
Bekker, of the Desmond Tutu HIV Foundation, identified several research projects that would be affected by the termination of USAID funding, including the Matrix Project, which was testing short-acting methods of pre-exposure prophylaxis that could be combined with contraception.
“Clinical trials were actually in the field and were stopped … they will not be resumed now,” she said.
Three clinical trials had been lined up for testing an affordable HIV vaccine in eight African countries, added Bekker. These had now been halted, “with the immunogen sitting in the fridge, not able to be used”.
Call to action
Referring to an emergency circular issued by the Health Department’s DG Dr Sandile Buthelezi on 11 February, detailing measures forming part of the “contingency plan” to respond to what was then a temporary suspension of support from Pepfar and its implementing partners, Wilkinson said this was “an important, necessary first step”.
“But the government must urgently develop a short- and medium-term plan, including emergency funding allocations to sustain the service delivery (and) redeployment of trained healthcare workers and community staff to ensure the continuity of care.”
“We can’t afford delays.”
Plans to fill gap
The “contingency plan” included redeployment of trained Department of Health staff to fill gaps left by Pepfar-funded personnel.
However, writes Ames Dhai in the SA Medical Journal, “with the massive staff shortages in healthcare throughout the country, it is evident again the department remains far removed from the realities”.
Of concern, Dhai added, was that “the circular responded to the temporary suspension, as though the state was expecting Trump’s administration to rescind its executive order”.
What was required was “a robust, long-term plan that is sustainable and makes provision for SA to invest in its own healthcare and disentangle itself from its dependency on the USA and other foreign donors”.
“The lives and livelihoods of vulnerable South Africans should not lie in the hands of foreign funders,” Dhai wrote.
While much of the focus has been on the Pepfar programme, health research has been hugely affected as well.
“The SA Medical Research Council (SAMRC) receives about one-third of its funding from US federal sources, mostly for HIV and TB research, but also for other areas, including maternal and infant mortality and antimicrobial resistance,” she wrote.
“The African-led BRILLIANT (Bringing Innovation to Clinical and Laboratory Research to end HIV in Africa through New Vaccine Technology) study, aiming to develop capacity to produce vaccines on the continent, is funded entirely by a $45m grant from USAID. It is unlikely funding will resume, and vaccines that are ready for clinical trials will probably remain in storage.”
Benefits worldwide
Around $40bn is allocated annually from the US federal budget for humanitarian and development aid.
Abdool Karim said he had been involved in many studies that were closed down by funders for various reasons; each followed a procedure to smooth the detransition. First and foremost, the funder gives a warning, he told News24.
Then, the researchers would provide an outline of the stoppage, three months of safety data at the end of the study, and financial audits, among other information.
“It’s generally an organised, planned set of activities,” he said, not an abrupt procedure.
Abdool Karim was partnered with Glenda Gray, President of the SAMRC, through a consortium in the BRILLIANT study, entirely funded by USAID, but which received the stop-work order shortly before it was to enrol its first participants in January.
He was also involved in a study testing anti-HIV silicon vaginal rings. The stop-work order not only prohibited them from continuing with the research but also stopped them from treating the women for adverse reactions to the experimental device or removing the rings.
Abdool Karim ignored the stop-work order and used reserve funds from his own organisation, Caprisa, to safely detransition the women from the trial. He said most researchers do not have the reserve funds to do this.
Disruption worldwide
Before the freeze, the US was responsible for two-thirds of all international financing for HIV prevention in low- and middle-income countries, writes The Guardian.
The countries most heavily dependent on financial support from Washington for the fight against HIV/Aids are among the most stricken parts of the planet. They include the Democratic Republic of Congo, Ivory Coast and Haiti.
A study commissioned by the Desmond Tutu HIV Foundation estimates that up to 500 000 people could die in South Africa over the next decade as a result of the funding cuts. A further half a million new infections might be recorded as a result of USAID grants being stopped to South African health groups.
“UNAids has received reports from 55 countries experiencing disruptions in their HIV responses due to the US foreign aid pause,” the executive director of the agency, Winnie Byanyima, said on social media.
“Any reduction could severely disrupt lifesaving prevention programmes, risking new infections and reversing progress to end Aids.”
Appeal for help with BRILLIANT trial
The SAMRC has appealed to African governments, philanthropists and the private sector to step into the breach after the funding termination for its leading project.
The cessation of USAID funding not only jeopardises plans to develop an HIV vaccine but also disrupts efforts to develop the next generation of scientists, strengthen laboratory services and boost clinical trials infrastructure.
Decades of progress in HIV vaccine research could be accelerated if African leaders stepped forward, MRC president Ntobeko Ntusi told BusinessLIVE. Gray said the termination of the grant was catastrophic for the science plans.
BusinessDay PressReader article – Loss of US grants for Aids fight huge blow (Open access)
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SA should prepare for ‘worst case scenario’ after Trump cuts
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