ON POINT: House: Don't single out Planned Parenthood

By Scott Forsyth

The Daily Record Newswire

On Feb. 18, the House of Representatives passed a budget resolution containing billions of cuts. One program not to be funded is Title X, which provides family planning services. A major recipient of Title X funds is Planned Parenthood.

Not content with depriving Planned Parenthood of its Title X grant revenue, Rep. Mike Pence proposed and the House adopted an amendment that will deny all federal funding of Planned Parenthood, no matter what the program.

Take Medicaid, for example. It is a mix of state and federal dollars. A total of 48 percent (approximately 1.4 million) of Planned Parenthood's patients are on Medicaid. They receive both preventive care, such as contraceptive counseling, and primary care, such as pap smears, breast cancer checks, and prenatal. The Pence amendment will remove this coverage, most likely forcing many of the patients to seek another provider.

Pence and his supporters justify their actions three ways. The country cannot afford Title X and the grants to Planned Parenthood. Defunding Planned Parenthood will save taxpayers $383 million per year, according to Pence.

Behind the fiscal rationale is a social agenda. Eliminating support for women's health clinics will reduce their ability to perform abortions. Planned Parenthood performs the most abortions, one-quarter in 2008, according to the Guttmacher Institute.

Finally, Planned Parenthood is not worthy of funding because, as caught on video, it counsels prostitutes and pimps on how to break the law.

All sorts of people are debating the wisdom of the House's actions. What is not being discussed is the constitutionality of the actions.

Congress may decide not to appropriate money for family planning services without violating the Constitution. However, it may not single out one provider for additional deprivations, specially in an effort to restrict the provider's exercise of a constitutionally protected right.

A woman has a fundamental right under the Fifth Amendment to choose whether to terminate a pregnancy. Within the first trimester, a government may regulate the exercise of the right provided the regulation is not unduly burdensome.

In Rust v. Sullivan, 500 U.S. 173 (1991), the U.S. Supreme Court upheld a rule requiring recipients of Title X funds to "physically and financially separate" family planning activities from abortion activities. Title X funds cannot fund abortion activities.

In its decision, the court emphasized that a provider need not accept Title X funds if it disliked the conditions on the use of the funds. The provider remained free to use "wholly private funds to finance its pro-abortion activities outside the Title X program."

The Pence amendment removes the underpinning of Rust. The amendment bars Planned Parenthood from receiving any federal money because of what the organization chooses to do with its private funds to assist women in exercising their fundamental right to abortion.

Besides violating the Fifth Amendment, the Pence amendment may also be a bill of attainder, prohibited by Section 9 of Article I of the Constitution.

A bill of attainder is "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual" without the protections of a trial in court, Nixon v. Adm'r of General Services, 433 U.S. 425, 468 (1977).

Few cases have arisen under the bill of attainder clause. The most recent concerned the decision of Congress to defund the Association of Community Organizations Now (ACORN). The district court held that the decision was a bill of attainder, but on appeal the Second Circuit ruled to the contrary, ACORN v. United States, 618 F.3d 125 (2nd Cir. 2010).

According to the Second Circuit, to be a bill of attainder a statute must be similar to the legislative punishments that upset the Founding Fathers, not have any other function besides punishment, and be motivated by a punitive intent.

ACORN lost because the withholding of federal monies, especially to a corporation, is not a historical form of legislative punishment. Congress had a non-punitive purpose -- protecting the treasury by not giving money to an organization that admitted it had extensive problems with financial management. The vindictive statements of "a handful of legislators [were] insufficient to establish -- by themselves" proof of intent.

Planned Parenthood, like ACORN, is a corporation and may be deprived of federal funds. Consequently, the Pence amendment may not meet the historical test of a bill of attainder. Why the bill of attainder clause should only protect individuals in this day of corporate personage is another question.

Unlike ACORN, Planned Parenthood does not have a record of financial mismanagement. It fired the employee who improperly advised the fake prostitute and pimp and reported the incident to law enforcement before the incident went public. To deny it funding on the basis of the incident smacks of punishment without trial. Pence's many previous efforts to defund Planned Parenthood may help establish the necessary intent.

Fortunately, the Pence amendment did not become part of the budget resolution that extended the operations of the government until March 18. Now that the House Republicans have made their point, they need to adopt a budget that does not single out Planned Parenthood and that comports with the Constitution.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

Published: Fri, Mar 11, 2011