Is the effort to de-fund Planned Parenthood a Bill of Attainder?

[appal_jack]

All the discussions I have heard and read about Republican efforts to de-fund Planned Parenthood seem to state that Planned Parenthood would be specifically and arbitrarily excluded from receiving federal funds for normal and proper non-abortion medical services to women. This specific and arbitrary exclusion strikes me as the very definition of a Bill of Attainder:

https://en.wikipedia.org/wiki/Bill_of_attainder

As the Wiki link notes:

A bill of attainder (also known as an act of attainder or writ of attainder or bill of pains and penalties) is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without a trial. As with attainder resulting from the normal judicial process, the effect of such a bill is to nullify the targeted person's civil rights, most notably the right to own property (and thus pass it on to heirs), the right to a title of nobility, and, in at least the original usage, the right to life itself.

And, the US Constitution specifically prohibits Bills of Attainder:

The United States Constitution forbids legislative bills of attainder under Article I, Section 9. The provision forbidding state law bills of attainder, Article I, Section 10, reflects the importance that the framers attached to this issue.

Within the U.S. Constitution, the clauses forbidding attainder laws serve two purposes. First, they reinforced the separation of powers, by forbidding the legislature to perform judicial or executive functions—since the outcome of any such acts of legislature would of necessity take the form of a bill of attainder. Second, they embody the concept of due process, which was partially reinforced by the Fifth Amendment to the Constitution. The text of the Constitution, Article I, Section 9; Clause 3 is "No Bill of Attainder or ex post facto Law shall be passed".

(Again from the above Wiki link - emphases in above quotes are mine)

While I certainly hope that the effort to de-fund Planned Parenthood fails on its own merits: it's a terrible idea that will only harm women (and children too) by hobbling an important nonprofit element of the medical services community, I wonder if challenging this ridiculous legislative push on Constitutional grounds would also be worthwhile.

What do the legal scholars and incisive minds of DU say?

Let's stand up for women's reproductive freedom and health every way we can.

-app

[jpak]

1. K&R

nt

[Fred Sanders]

2. YES, it is.....just like the ACORN smear and defunding....it is so familiar everyone has forgotten

this PP attack is the exact same propaganda MO. Exactly.

[onecaliberal]

3. K&R

[The Velveteen Ocelot]

4. No, because defunding an organization isn't the same

as declaring it guilty of a crime and punishing it without a trial. The reason for outlawing bills of attainder was to preserve the separation of powers by prohibiting trial by legislature. But since Congress already has the power under the Constitution to determine the allocation of federal funds, enacting legislation to defund an organization that it had previously funded is in no respect the same as passing a bill of attainder. It's crappy and stupid but it's legal (I used to teach constitutional history so I'm confident I'm right on this point).

[appal_jack]

7. Even with recent notions of corporate personhood?

The federal funds are reimbursements for services provided, yes? Shouldn't federal funds be fungible among legal and licensed providers?

I still think that with good lawyers, PP might be able to fight this (though your points make actually winning on these grounds perhaps less likely), but I agree that we should mostly oppose the de-funding effort because it's crappy and stupid, whether legal or otherwise.

On this morning's Diane Rheem show, a reporter said that the videos were about selling fetal tissue, and was left unchallenged by both the moderator (a sub for Diane) and the other reporters on the weekly news round-up. Challenging such lies in the battle in the areas of public perception and narrative are the most important arenas. Thanks for your insights!



-app

[Travis_0004]

9. No.

From a purely legal standpoint they have every right to stop funding planned parenthood.

They can stop funding any organization for any reason, or for no reason at all.

[appal_jack]

10. OK, but maybe women can sue on behalf of their own civil rights?

If the only legitimate provider of women's reproductive medical care in many regions and for many economic brackets is Planned Parenthood, are women's civil rights not being abrogated by this Bill-of-Attainder-like arbitrary funding restriction?

I have heard many anti-choicers claim that women will just receive similar care from other providers, but is that care really available from others? Isn't de-funding the one widespread and affordable provider of services basically a denial of such services?

I concede from this discussion that the Bill of Attainder argument seems like a bit of a dead-end, and will redirect my pro-choice and pro-PP arguments to more fertile ground (yeah, pun intended, sorry).

-app

[Eleanors38]

15. You touched on the real problem: No effective opposition.

Warren is right: The campaign against PP is highly orchestrated. This has resulted in no effective opposition or attempts at changing the narrative of the Far Right. Been going on for years.

Standard operating procedure.

[Nuclear Unicorn]

5. No, because there is no obligation to fund any program.

Any program can be de-funded and a reason not need be given Congress can just say, "We don't feel like doing this any more." The question is: are they willing to bear the political cost?

[appal_jack]

8. Let's make sure that cost is high. Thanks, NU. nt

[jeff47]

6. Only if they were to throw Planned Parenthood in jail

Congress has pretty much absolute power over how discretionary funds are spent. They can decide to stop paying anyone on a whim. Be it Planned Parenthood or Lockheed.

[appal_jack]

11. I admit to a 'bear-of-small-brain' legal acumen...

...but it still seems like certain corporations (mining companies, etc.) are always suing about 'takings' and even (recently) 'expectation of profits' matters. Then, here is a non-profit, essential provider of medical services being targeted, and the options for fighting back seem so constrained.

But, yes, I agree with you that there's nothing in the Constitution that says that Congress has to fund much (defense, a patent office, and the Post Office, perhaps...)



-app

[PoliticAverse]

12. During the efforts to defund ACORN, the Congressional Research Service prepared a report...

(September 22, 2009, 15 pages .pdf)

The Proposed “Defund ACORN Act”: Is it a “Bill of Attainder?”
http://volokh.com/files/acornattainder.pdf

[appal_jack]

13. Interesting! Thanks for this link.

From the conclusion:

While the Supreme Court has noted that courts will
generally defer to Congress as to the regulatory purpose of a statute absent clear proof of punitive
intent, there appear to be several potential problems raised by attempts to find a rational nonpunitive
regulatory purpose for this legislation. Thus, it appears that a court may have a sufficient
basis to overcome the presumption of constitutionality, and find that the proposed Defund
ACORN Act violates the prohibition against bills of attainder.

Compelling, at least in my estimation...

-app

[former9thward]

14. It is not a bill of attainder.

A bill of attainder is an act of legislature finding a person guilty of treason or felony without trial. PP is not being found guilty of a crime, let alone treason.