Ban on Planned Parenthood Funding is an Unconstitutional Bill of Attainder

Abstract

The denial of federal or state women’s health care funding for Planned Parenthood and other women’s health care providers that include abortions in the wide array of services that they provide to low-income women is an unconstitutional bill of attainder. A bill of attainder is a trial by a legislature in which the legislature enacts a law that is designed to punish a named person or an identifiable group of persons. It goes back to 16th, 17th and 18th century Great Britain, where Parliament would enact a law finding certain opponents of the Crown guilty of treason and confiscating their property. And during the Revolutionary War, all of the colonial legislatures used bills of attainder to confiscate the property of British loyalists. The Framers of the Constitution were determined to put an end to this pernicious practice and so unanimously and without debate, specifically provided in the Constitution that “no bill of attainder shall be passed by Congress or by any state.”

The Supreme Court has interpreted the constitutional prohibition against bills of attainder very broadly, going beyond the imposition of a criminal penalty. Rather the Court has applied a functional test to prohibit legislative punishment of any form or severity against specifically designated persons or groups. Under this test, the denial of a governmental benefit to an organization otherwise eligible to receive it on the ground that the organization enabled women to exercise their fundamental right to have a safe and legal abortion clearly constituted punishment, and by definition, there could be no legitimate non-punitive purpose served by this denial. It is thus an unconstitutional bill of attainder. It has no place in the American constitutional system.