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Supreme Court of the United States

Why Defunding Planned Parenthood is Constitutional

October 17, 2017

By: Jared Dobbs

Planned Parenthood apologists occasionally argue that defunding is unconstitutional. But this is simply not true.

Of course it’s constitutional for Congress to defund Planned Parenthood. According to Article 1, Section 8 of the U.S. Constitution, Congress has the power of the purse, and so it may levy taxes and spend public monies. If Congress wants to withdraw taxpayer dollars from supporting the gruesome practices of Planned Parenthood, it is free to do so.

This is simple and straightforward, but as with most things involving the law, still meets with objections. In this case, the relevant bills—H.R. 354 in the House, and S. 241 in the Senate—specifically defund Planned Parenthood by name. Therein lies the conundrum. Opponents of defunding like David S. Cohen and Congressman Jerrold Nadler (D-NY) point to a provision in Article 1, Section 9, which reads:

“No Bill of Attainder or ex post facto Law shall be passed.”

Translation: Congress cannot single out an individual or group for punishment without trial.

This important constitutional provision supports the separation of powers by making sure that Congress does not directly punish individuals for wrongdoing. That authority belongs to the courts, and there must be a trial to determine wrongdoing.

For Cohen and Nadler, defunding Planned Parenthood by name constitutes a Bill of Attainder. Cohen argues that “Congress has already tried and convicted Planned Parenthood for these alleged crimes. And as a result, Congress is punishing Planned Parenthood by taking away funding. After all, that's how you punish a corporation: You hit it in the pocketbook.”

But Cohen’s notions of punishment and trial are off base. Congress has not “tried and convicted Planned Parenthood.” More importantly, withdrawing federal funds from a specific organization does not meet the textbook definition of punishment. The U.S. Court of Appeals for the Second Circuit decided as much in ACORN v. United States.

In 2009, Congress denied federal funding to ACORN in the wake of revelations of embezzlement and voter fraud. The court found that withholding funding was not a punishment. Traditional forms of punishment, the court said, include “death . . . imprisonment, banishment, the punitive confiscation of property, and prohibition of designated individuals or groups from participation in specified employments of vocations.”

Defunding ACORN did not fit any of those examples. The court noted that withholding funds could be punitive in certain circumstances, especially if the government were confiscating property. However, the government had no duty to disperse its public monies to ACORN, and ACORN did “not assert that they have property rights to federal funds that have yet to be disbursed at the agency’s discretion.”

Thus, withdrawing taxpayer funding, as the Second Circuit found, is not the same thing as punishment. There are several non-punitive reasons for defunding organizations. For example, Congress may wish to ensure that taxpayer dollars are not used to destroy unborn children. There’s nothing punitive about that. 

For these reasons, defunding Planned Parenthood does not constitute a Bill of Attainder, and it is absolutely constitutional. It’s also the right thing to do.

To learn more about the Defund Planned Parenthood efforts, visit the link below. 

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Alliance Defending Freedom

Alliance Defending Freedom

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Alliance Defending Freedom advocates for your right to freely live out your faith

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