By David S. Cohen
The first day of teaching constitutional law, I inevitably find myself asking the question: "Does anyone know what a bill of attainder is?"
Despite having been assigned the entire Constitution to read and having online dictionaries readily at their fingertips, my students rarely know the answer.
In the wake of the recent House vote to defund Planned Parenthood, and with several state legislatures considering the same, it has become quite clear that state and federal legislators don't know the answer to the question either.
A bill of attainder is a law that inflicts punishment upon a particular individual without a judicial trial. In other words, a bill of attainder is, as the Supreme Court has termed it, a "trial by legislature" rather than by court.
The Constitution prohibits both Congress and state legislatures from enacting bills of attainder for two important reasons that go to the heart of our democracy. One, laws that target individuals threaten civil liberties because legislatures do not afford individuals the protections of a trial. Two, bills of attainder conflict with basic notions of separation of powers. Generally speaking, the judiciary is responsible for trying, convicting, and punishing individuals; legislatures are responsible for more broad-based policy.
Though no one is talking about it, this most recent dust-up over federal funding for Planned Parenthood is very clearly an example of an unconstitutional bill of attainder: Congress is singling out Planned Parenthood and punishing the organization for allegedly improper and illegal actions.
More specifically, a bill of attainder has to meet three legal requirements: The law has to "determine guilt and inflict punishment," it must act "upon an identifiable individual," and it must do so "without provision of the protections of a judicial trial." All these requirements are met here.
First, removing Planned Parenthood's federal funding, over half a billion dollars that help it provide cancer screenings, gynecological care, contraceptive counseling, and more, is a clear instance of punishment. The Republican-controlled House voted to remove the funding based on deceptive videos from the Center for Medical Progress that purport to show that Planned Parenthood sells aborted fetal body parts and alters abortion procedures to facilitate those sales.
Putting aside the fact that the videos show nothing of the sort, if it were somehow true that Planned Parenthood engaged in these actions, the organization would have violated federal laws and regulations. The proper way to respond to these alleged illegal actions, then, would be to hold a hearing at which Planned Parenthood could present its case. That's what our Constitution requires.
Instead, 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.
Providing even more proof that this is punishment, Congress is removing funding from the part of Planned Parenthood that has nothing to do with the allegations. Federal law already prohibits federal money from going toward abortion care, so Planned Parenthood receives no federal money for its abortion services. Thus, Congress is, based on allegations of improprieties in Planned Parenthood's abortion care, removing funding from the organization's other medical services. Attacking this other unrelated part of the organization is punitive, plain and simple.
The other requirements of a bill of attainder are more easily explained. The law targets an individual, as it defunds Planned Parenthood alone. Though the Supreme Court has not explicitly ruled on the matter, lower courts have found that corporations are protected by the guarantee against bills of attainder. And with the Supreme Court happy to find that corporations are protected by the First Amendment in the infamous Citizens United case, it is hard to imagine it finding otherwise with bills of attainder.
Finally, this punishment inflicted upon Planned Parenthood has most certainly occurred without any judicial trial. No court or administrative agency has found that Planned Parenthood has violated the law and punished it accordingly. In fact, at least five states have investigated Planned Parenthood's involvement in fetal-tissue donation programs and have cleared it of any wrongdoing.
The framers knew the dangers that bills of attainder pose to individual liberty and separation of powers and wrote the protection against them into the first article of the Constitution. Unfortunately, it appears that members of Congress, like my students on day one of their constitutional law course, do not know about this basic constitutional protection.
David S. Cohen is a professor of law at the Thomas R. Kline School of Law at Drexel University and the author of "Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism" (Oxford University Press). firstname.lastname@example.org