The latest decision in the Planned Parenthood case is a sloppy stew of logical fallacies.
The latest decision in the Planned Parenthood case is a sloppy stew of logical fallacies.
I’ ve previously covered Obama-appointed Massachusetts Federal District Judge Indira Talwani and her efforts to compel Congress to continue funding Planned Parenthood even after it passed a statute specifically refusing such funding. First, Judge Talwani issued an unexplained “temporary restraining order” (TRO) on the first business day after the law passed, just hours after Planned Parenthood filed its complaint and without even waiting to hear the Justice Department’s defense of federal law. Last Monday, she issued an opinion entering a preliminary injunction, claiming that the defunding of Planned Parenthood violated its First Amendment rights. The next day, the Justice Department filed an appeal. That didn’t stop Judge Talwani from issuing an expanded ruling on Monday, after Planned Parenthood asked her to clarify her order, so that she could rule on additional grounds. In this latest order, she claims that Congress passed a prohibited bill of attainder.
The bill of attainder argument fails to address the relevant precedents. The rest of her legal theory is a stew of logical fallacies so obvious that it can be attributable only to a blind determination to keep funding Planned Parenthood with our money no matter what Congress does.
A Rational Basis
To start with, at every turn, Judge Talwani frames her inquiries in ways that presume the illegality of the law, which is not how district judges are supposed to read acts of Congress. She asks, “Is Section 71113 [the defunding provision] directed at entities solely because they provide elective abortions or also because of their advocacy?” This has never been the standard: The government doesn’t have to prove that it was deaf, dumb, and blind to any advocacy by the party it is deciding not to fund.
The legal fig leaf that she uses in order to argue that Congress is barred from defunding Planned Parenthood because the organization and some of its affiliates engage in political advocacy is that this is an unconstitutional condition that “seek[s] to leverage funding to regulate speech outside the contours of the program itself” under Agency for International Development v. Alliance for Open Society International (2013). That case struck down a requirement that recipients of federal funds must have “a policy explicitly opposing prostitution and sex trafficking.” But in that case, Congress itself defined a condition that turned on speech. Here, by contrast, the defunding provision turns on Planned Parenthood performing abortions, not on its political advocacy.
Judge Talwani doesn’t cite a single case for the idea that a condition on non-expressive conduct is unconstitutional, and neither does she openly claim that performing abortions is speech. Instead, watch for the bait and switch:
Where Section 71113 disqualifies Planned Parenthood Members who do not provide abortion because of their affiliation with other Members who will continue to provide abortion, and where membership in Planned Parenthood Federation is expressive, Plaintiffs are likely to succeed in establishing that Section 71113 unconstitutionally conditions Medicaid reimbursements on these Members foregoing their First Amendment right of association.” [Emphasis added.]
In other words, the trigger for disqualification is not the expressive activity.
Judge Talwani’s opinion, which (like its predecessor) reads like a Planned Parenthood press release, is full of recitations such as this one:
Planned Parenthood Federation’s mission is to ensure that people receive high-quality, inclusive, and comprehensive sexual and reproductive healthcare regardless of income, insurance, gender identity, sexual orientation, or race; to provide related educational services; to promote research on sexual and reproductive health; and to advocate for public policies that guarantee access to such services.
Judge Talwani insists that there cannot possibly be a rational reason — not one she can imagine, at any rate — for Congress to do what it did:
There is a poor fit between Section 71113 and any non-punitive legislative purpose. Section 71113 excludes few abortion providers from participating in Medicaid programs and bars Planned Parenthood Members that do not provide abortion from receiving Medicaid funds. Moreover, the law does not reduce Medicaid funding for elective abortion where federal law already bars federal funding of elective abortion. Consequently, the law does little to further its purported non-punitive ends. . . .
Plaintiffs are likely to show that there is no rational relationship between the class burdened by Section 71113 — comprised of 47 Planned Parenthood Members and two additional entities — and the goal of reducing abortion. As explained above, Section 71113 affects only a small number of abortion providers and leaves every other conceivable category unaffected. . . . It is unclear how including only entities that are non-profits and provide medical services in underserved communities is in any way related to reducing abortion. Nor is it clear how withholding Medicaid reimbursements from Planned Parenthood Members who do not provide abortion furthers that end.
Defendants also suggest that Congress was free to focus on “Big Abortion.” But the Member healthcare providers that are defunded by Section 71113 are separate legal entities. [Emphasis added.]
Conspicuously, while Judge Talwani identifies Section 7113 as applying to 46 abortion providers (i.e., statewide Planned Parenthood affiliates in nearly every state), nowhere in the opinion does she ask the question “How many abortions are performed by Planned Parenthood?” If she did, she would have to confront the reality that the organization performs somewhere north of a third of the nation’s abortions. Obviously, defunding a business that is by far the nation’s largest supplier of a particular service is rationally related to the goal of reducing the availability of that service. Judge Talwani elsewhere recites: “If Planned Parenthood Members are barred from receiving federal Medicaid reimbursement for their non-abortion services, Planned Parenthood Members across the country anticipate reducing the hours and programs they offer, terminating staff members, and eventually closing health centers. . . . Health centers that close may never reopen. many Member health centers will be forced to close if no injunction enters.” If you think the government shouldn’t be propping up Planned Parenthood, and that closing some of its clinics will reduce the availability of abortion, how can you not follow that logic to find that defunding the organization is rationally related to reducing abortion? Only if you are really, really, really motivated to not observe what is staring you right in the face.
In fact, Congress is quite within its rights, for purposes of setting national policy, to treat Planned Parenthood as a unitary organization for purposes of deciding not to fund the nation’s largest abortion provider. Judge Talwani admits:
Planned Parenthood Federation licenses the use of the Planned Parenthood name to each Planned Parenthood Member, and the Planned Parenthood name sends a message to the community that the Planned Parenthood Member stands for certain values and provides healthcare and educational services in furtherance of the shared Planned Parenthood mission. . . . Planned Parenthood Federation administers accreditation standards for Planned Parenthood Members, promulgates shared medical standards and guidelines, and leads certain shared policy and program initiatives. . . . Planned Parenthood Federation provides support, leadership, and guidance to Planned Parenthood Members. . . .
Planned Parenthood Members’ inability to provide timely or comprehensive patient care is likely to damage the public perception that Planned Parenthood Members stand for certain values and provide high-quality health care. . . . Because injuries to goodwill and reputation are not easily quantifiable, courts often find this type of harm irreparable. [Emphasis added; quotation and citation omitted.]
That’s how a franchise model works. How is it irrational to think that defunding will lead to fewer services provided by Planned Parenthood when the record evidence submitted and quoted by the court argues that defunding will lead to fewer services provided by Planned Parenthood?
Judge Talwani argues that “because collective advocacy and protecting access to legal abortion are core pieces of Planned Parenthood Federation and its Members’ mission, imposing that choice kneecaps the entire organization.” But it’s completely artificial to argue that the organization is “kneecapped” in political advocacy by treating each member separately and yet, at the same time, that they are completely separate in providing abortion.
Perverse Incentives
The free speech argument gets even stranger in the court’s bizarre insistence that the Planned Parenthood organization “is expressive” by nature because “Planned Parenthood Federation advocates before Congress, provides education and information about sexual and reproductive health, and through Planned Parenthood Action Fund, communicates with the public regarding lawmakers’ voting records, supports campaigns for ballot initiatives, and supports candidates for federal, state, and local officials who will support reproductive freedom in furtherance of its mission.” But it’s entirely perverse to argue that a recipient of federal funds can insulate itself from being defunded simply by donating money to candidates and engaging in political speech. This turns on its head the good-government argument that we should not want corporations to entrench themselves at the federal trough by giving money to politicians. If Judge Talwani’s argument were the law, it would become unconstitutional to defund precisely those organizations that structure themselves into federations that give money to politicians.
Bill of Attainder
One problem for Judge Talwani and Planned Parenthood: The free speech argument is still premised on the idea that affiliates who don’t perform abortions are being penalized, not for their own conduct, but for their “expressive” association with the rest of the organization. Nonsense though that is, it’s not big enough nonsense to strike down Section 7113 all by itself. The original TRO precluded defunding any of Planned Parenthood’s affiliates. To get that far, the court needed another argument, and it settled on the claim that Section 7113 is a bill of attainder.
The essential concept of the bill of attainder clause in the Constitution is that a legislature may not punish a particular individual for previous conduct by passing a law rather than by having the executive put the target on trial for violating an existing law. It is therefore a close cousin to the ex post facto clause, which bars retroactive legislation, and it similarly arose from Founding-era abuses.
Quoting prior Supreme Court decisions, Judge Talwani claims that the defunding provision is a retroactive bill of attainder that “defines the affected class entirely by irreversible acts committed by them in the past” and does not allow Planned Parenthood affiliates to “escape regulation merely by altering the course of their own present activities.” She reaches this conclusion by noting that one part of the statutory definition keys defunding to whether the organization as a whole received more than $800,000 in fiscal year 2023. But this completely ignores the fact that the definition’s central element is that the organization “provides for abortions” — present tense. If Planned Parenthood stopped doing abortions, it wouldn’t be covered, so it can’t be said that the provision is “entirely” defined by “irreversible” acts in the past.
Moreover, it is dubious whether the bill of attainder clause even applies to defunding of organizations. True, precedents have extended the clause to denying jobs or benefits to individuals and have applied it at times to punishment of businesses and organizations. But as the Congressional Research Service has summarized:
Courts have generally declined to extend historic jurisprudence related to employment bans to include restrictions on corporations. As an example, in Kaspersky Lab, Inc. v. Department of Homeland Security [2018], Russia-based cybersecurity company Kaspersky Lab brought a bill of attainder challenge to a provision of the National Defense Authorization Act for Fiscal Year 2017 that barred the U.S. government from using any Kaspersky Lab products or services. The D.C. Circuit . . . rejected the company’s argument that the ban on federal contracting with Kaspersky Lab was analogous to prior cases involving individual employment bans. The court explained that “although we assume that the Bill of Attainder Clause protects corporations as well as natural persons, we have no basis for likewise assuming that corporate entities feel burdens in the same way as living, breathing human beings.” In ACORN v. United States [2010], the Second Circuit similarly held that withholding federal appropriations from a named company “does not constitute a traditional form of punishment,” noting, “There may well be actions that would be considered punitive if taken against an individual, but not if taken against a corporation.”
Of course, Judge Talwani didn’t even address this issue.
Playing for Time
The real game being played here is that Judge Talwani seems to be trying to run out the clock, given that the defunding provision applies for only one year and that Congress may not have a sufficiently urgent must-pass vehicle next year that an extension could hitch a ride on. Of course, by insisting that money keep going out the door while the case proceeds, she is trying to create irrevocable facts on the ground while allowing Planned Parenthood to post only a nominal $100 bond on the theory that “defendants do not contend that Medicaid will have to reimburse more services because of the injunction but only that the reimbursement will be to disfavored providers rather than other providers. Accordingly, any harm that Defendants would sustain is not a monetary harm.”
This is borderline impeachable conduct, but if the courts want to keep Congress from setting troubling precedents by censuring or impeaching judges who do this sort of thing, they really need to crack down as soon as possible. That means that the First Circuit, or, failing that, the Supreme Court, should stay the orders and reassign this case immediately to another judge who actually has some regard for the law.