Planned Parenthood/Bill of Attainder

[Folacin]

If this is the wrong forum - please move.

So, in general (and increasingly) corporations are treated as persons under the law, with most of the rights of actual people (including first amendment rights).

So, given that, does the apparently specify prohibition of Planned Parenthood receiving Medicaid payment for non-abortion services run afoul of the prohibition of bills of attainder?

[RivkahChaya]

IANAL, but I sure would like to see one come in here and answer that, because it seems to me an excellent point.

[Okrahoma]

AFAIU, “bill of attainder” refers to a punishment for a crime. Non-inclusion in Medicaid reimbursements is not a punishment for a crime.

[Falchion]

@Folacin

If this is the wrong forum - please move.

So, in general (and increasingly) corporations are treated as persons under the law, with most of the rights of actual people (including first amendment rights).

So, given that, does the apparently specify prohibition of Planned Parenthood receiving Medicaid payment for non-abortion services run afoul of the prohibition of bills of attainder?

I think that the leading case on this is ACORN v. United States, where the Second Circuit found that withholding appropriations isn’t “punishment” within the meaning of the clause. I assume a similar analysis applies here.

[Bricker]

@Falchion

I think that the leading case on this is ACORN v. United States, where the Second Circuit found that withholding appropriations isn’t “punishment” within the meaning of the clause. I assume a similar analysis applies here.

Exactly.

Acorn v. US, 618 F. 3d 125 (2nd Cir 2010) held:

In its contemporary usage, the Bill of Attainder Clause prohibits any “law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” (internal citations omitted) That is, the Supreme Court has identified three elements of an unconstitutional bill of attainder: (1) “specification of the affected persons,” (2) “punishment,” and (3) “lack of a judicial trial.”
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The withholding of appropriations, however, does not constitute a traditional form of punishment that is “considered to be punitive per se.” See Con. Edison, 292 F.3d at 351. Congress’s decision to withhold funds from ACORN and its affiliates constitutes neither imprisonment, banishment, nor death. The withholding of funds may arguably constitute a punitive confiscation of property at some point, but the plaintiffs do not assert that they have property rights to federal funds that have yet to be disbursed at the agency’s discretion.

Supreme Court denied cert.

[Richard_Parker]

PP doesn’t receive appropriations like ACORN did. It gets reimbursed as a provider of medical services. I can think of a few reasons why that might distinguish the result, though I don’t know anything about attainder jurisprudence.

[boytyperanma]

@Richard_Parker

PP doesn’t receive appropriations like ACORN did. It gets reimbursed as a provider of medical services.

Which would make them a government contractor. We place all types of limitations on government contractors and require they meet lots of different standards they must adhere to to maintain their status as a contractor. Requiring military equipment be made in the US or requiring contractors not discriminate against LGTB etc. Some things are written into law others are just the policy of the executive branch.

The current proposal is we don’t ‘hire’ organizations that provide abortions. This isn’t specific to Planned Parenthood so I don’t see how it would be a Bill of Attainder.

[Frankenstein_Monster]

The language in the bill is:

@Trumpcare

…no Federal funds provided from a program referred to in this subsection that is considered direct spending for any year may be made available to a State for payments to a prohibited entity, …

The term “prohibited entity” means an entity, including its affiliates, subsidiaries, successors, and clinics—
(A) that, as of the date of enactment of this Act—
(i) is an organization described in section 501(c)(3) of the Internal Revenue Code of 1986 and exempt from tax under section 501(a) of such Code;
(ii) is an essential community provider described in section 156.235 of title 45, Code of Federal Regulations (as in effect on the date of enactment of this Act), that is primarily engaged in family planning services, reproductive health, and related medical care; and
(iii) provides for abortions, other than an abortion—
(I) if the pregnancy is the result of an act of rape or incest; or
(II) in the case where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself; and
(B) for which the total amount of Federal and State expenditures under the Medicaid program under title XIX of the Social Security Act in fiscal year 2014 made directly to the entity and to any affiliates, subsidiaries, successors, or clinics of the entity, or made to the entity and to any affiliates, subsidiaries, successors, or clinics of the entity as part of a nationwide health care provider network, exceeded $350,000,000.

They don’t mention Planned Parenthood but they make the criteria so specific that they only apply to Planned Parenthood in practice. Look at that (B) part.

Do the courts fall for this?

[Folacin]

From Bricker’s quote of three (necessary and sufficient?) requirements for attainder:
(1) “specification of the affected persons,” - this one seems covered (and probably was for ACORN as well). I would think the question would be answered by the specificity of restriction - a court might require that the government show that there is more than one entity that fits the restriction?

(3) “lack of a judicial trial.” - IANAL, so not sure what this means. I guess “punishment without trial but instead via legislation”, so if #2 were met, we might be there.

(2) “punishment,” - so this is the kicker, and might balance on reimbursement vs appropriation (with thanks to Richard Parker). Which leads to this quote from Bricker’s cite:

The withholding of funds may arguably constitute a punitive confiscation of property at some point, but the plaintiffs do not assert that they have property rights to federal funds that have yet to be disbursed at the agency’s discretion.

My understanding of current laws/regulations is that any provider who meets various requirements (which PP does) is entitled to reimbursement for covered expenses. It doesn’t seem like you need to stretch things much to describe that as a property right. Does that get us over the hump?

[Falchion]

@Richard_Parker

PP doesn’t receive appropriations like ACORN did. It gets reimbursed as a provider of medical services. I can think of a few reasons why that might distinguish the result, though I don’t know anything about attainder jurisprudence.

Fair point. I don’t know if it makes a difference. The emphasis in the cases that I’ve read is on punishment as of the type you would see for violating a criminal statute (death, imprisonment, etc.). Certainly seizure of property counts, but does this get there? I don’t know.

In Lovett, the Court struck down as statute that prohibited the payment of a salary to three specific employees.

But, in Nixon, the Court rejected the notion that the Attainder Clause operates as an equal protection clause, saying

By arguing that an individual or defined group is attainted whenever he or it is compelled to bear burdens which the individual or group dislikes, appellant removes the anchor that ties the bill of attainder guarantee to realistic conceptions of classification and punishment. His view would cripple the very process of legislating, for any individual or group that is made the subject of adverse legislation can complain that the lawmakers could and should have defined the relevant affected class at a greater level of generality. Furthermore, every person or group made subject to legislation which he or it finds burdensome may subjectively feel, and can complain, that he or it is being subjected to unwarranted punishment. United States v. Lovett, supra, at 324 (Frankfurter, J., concurring). However expansive the prohibition against bills of attainder, it surely was not intended to serve as a variant of the equal protection doctrine, invalidating every Act of Congress or the States that legislatively burdens some persons or groups but not all other plausible individuals. In short, while the Bill of Attainder Clause serves as an important “bulwark against tyranny,” United States v. Brown, 381 U. S., at 443, it does not do so by limiting Congress to the choice of legislating for the universe, or legislating only benefits, or not legislating at all.

So I don’t know the fact that it excludes one participant from an otherwise generally available government program makes it “attainder.” Is a provider really “entitled” to reimbursement? Is failure to pay “confiscation” of property? I don’t know.

[Richard_Parker]

@Falchion

I don’t know.

Same. It seems like a stretch argument to me, but I don’t know that the precedent really forecloses it.

There are other constitutional arguments. I think better than Bill of Attainder is arguing that this would be an unconstitutional condition. Not only is the government saying it won’t fund abortion services–which it has long said and done–but saying that if you provide those services then you will lose funding. When you condition a privilege, including money, on the waiver of some constitutional right, then you’re squarely in unconstitutional conditions territory.

Could the government threaten to cut funding to Legal Aid unless they promise to stop bringing cases against Trump-owned properties?

That doctrine is a complete mess. Probably the least coherent constitutional doctrine there is, and that’s saying something! So who knows how it comes out. But I’d say it’s a jump ball, at least at first glance.