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Does the Constitution protect Planned Parenthood?

May 11, 2017

If you listen to the rhetoric about Planned Parenthood from Republican congressmen and legislators, you might think it is the world’s biggest abortion mill.

It’s not. Planned Parenthood is a non-profit organization that primarily provides contraception, pregnancy and disease testing, and has long gotten federal and state aid for providing what are essentially public health services.

A mere three percent of what it does involve abortions, which are, by the way, a fully legal medical procedure. No federal or state funding is used for abortion services.

But Republicans in both Congress and the Michigan legislature want to cut off funding for Planned Parenthood, and have introduced bills to do that.

President Trump quietly signed a bill last month allowing states to withhold federal money from any organization that provides abortions, even if none of that money is used for abortions. That bill, which was only passed when the vice-president broke a tie in the Senate, was aimed mostly at Planned Parenthood, the symbol of what Republicans love to hate.

Nobody doubts that more anti-Planned Parenthood legislation is coming. Well, those who support Planned Parenthood have been arguing – correctly – that it would be devastating to public health if the organization were to go under.

Society would probably end up with more unplanned pregnancies and ultimately, more abortions, not to speak of more undiagnosed and untreated sexually transmitted diseases.

But it also turns out that any bill specifically defunding Planned Parenthood may be unconstitutional. Robert Sedler, a distinguished professor of law at Wayne State University, wrote a column arguing this in last Sunday’s Detroit Free Press.

And he makes a persuasive case.

The U.S. Constitution bans something called “bills of attainder.” That’s a phrase I never understood in high school, but it means a law punishing a particular person or a group without a trial. This was a familiar and hated practice in Great Britain, and the Founding Fathers were determined to stop it. The Supreme Court has stuck down laws aimed at a particular group on bill of attainder grounds on a number of occasions.

But would this apply to Planned Parenthood? I asked Michael Steinberg, the legal director of the American Civil Liberties Union of Michigan. Not only did he agree, he told me that a federal court had thrown out a North Carolina law defunding Planned Parenthood precisely because it found it to be an illegal bill of attainder.

That was six years ago, in a case called Planned Parenthood of North Carolina v. Cansler. Significantly, the state did not appeal the decision to any higher federal courts. “Bob Sedler’s theory that defunding Planned Parenthood constitutes an unconstitutional bill of attainder has support in both the case law,” and in legal commentary.

Steinberg added that there were other grounds, such as the equal protection clause, on which any law defunding Planned Parenthood could and would be challenged in the courts.

Sedler, who has argued before the U.S. Supreme Court, says flatly “there can be no conceivable justification for Congress or any state denying funding to … health care providers simply because they also enable women to exercise their fundamental constitutional right to a safe and legal abortion.” President Trump and many of his allies disagree.

But as the ACLU’s Steinberg told me, “that’s what the courts are for.”

Jack Lessenberry is Michigan Radio’s Senior Political Analyst. Views expressed in his essays are his own and do not necessarily reflect those of Michigan Radio, its management or the station licensee, The University of Michigan.