A federal judge has ordered the government to continue funding Planned Parenthood despite clear language in the “Big Beautiful Bill” prohibiting it. But the abortion giant’s victory is likely to be very short-lived.
President Donald Trump signed the Big Beautiful Bill into law on July 4. That law, duly passed by Congress, prohibits for one year all state Medicaid payments to healthcare nonprofits that (a) provide abortions and (b) received more than $800,000 from Medicaid in 2023. As Planned Parenthood observed in its motion for an injunction against the provision, “the overwhelming majority of the entities that satisfy these … criteria … are Planned Parenthood Members.”
Jurist Imprudence
Rightly perceiving itself as the target of the provision, Planned Parenthood quickly went to court to block it. And, as RealClearPolitics columnist Kenin Spivak pointed out, its attorneys knew exactly how to get what they wanted:
Without the facts or the law on their side … they found a far-left federal judge who has repeatedly ruled against the Trump administration and is willing to create a constitutional crisis to advance a political cause.
An appointee of former President Barack Obama, U.S. District Judge Indira Talwani of the District of Massachusetts is an erstwhile labor-union lawyer who “blocked the Trump administration from revoking the work permits of 530,000 illegal immigrants from Cuba, Haiti, Nicaragua, and Venezuela,” reported the Daily Signal.
According to Spivak:
Without hearing from the government, complying with federal rules, or even providing an explanation, within hours after [Planned Parenthood’s] filing, Talwani issued a TRO [temporary restraining order] for at least 14 days that requires the government to spend money Congress declined to appropriate.
Four days later, the administration asked Talwani to dissolve the TRO because of its obvious infirmities. Instead, she doubled down, issuing an amended TRO that satisfied the technical requirements she had previously ignored.
Pocketbook Prerogative
The case for upholding Planned Parenthood’s defunding is straightforward. Besides the fact that Medicaid itself is unconstitutional, Article I, Section 9 of the Constitution states quite plainly: “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.” Thus, as the Supreme Court put it in OPM v. Richmond (1989), nothing “can be paid out of the Treasury unless it has been appropriated by an act of Congress.”
Wrote Spivak:
There is no basis in the Constitution or any Supreme Court decision to support the right of a court — any court — to interfere in congressional decisions to fund, or cease funding, a private organization. To the contrary, in Rust v. Sullivan (1991), the Supreme Court held that “the Government has no constitutional duty to subsidize an activity merely because the activity is constitutionally protected.”
Questionable Contentions
Knowing this, Planned Parenthood was forced to resort to highly specious arguments to explain why Congress shouldn’t be allowed to snuff out its funding as summarily as it snuffs out the unborn.
First among these arguments is that the defunding provision is a bill of attainder, which Article I, Section 9 prohibits:
The Defund Provision is Congress’s attempt to punish Planned Parenthood for being, for generations, the Nation’s foremost advocate for sexual and reproductive rights and, if its Members are treated collectively, the only nationwide abortion provider. That makes the Defund Provision a bill of attainder….
According to the Cornell Law School’s Legal Information Institute:
A bill of attainder is a piece of legislation that declares a party is guilty of a crime. Bills of attainder allow the government to punish a party for a perceived crime without first going through the trial process.
Refusing to fund a private institution, regardless of the justification for doing so, is not a criminal punishment. In fact, noted Spivak:
In Nixon v. Administrator of General Services (1971), the Supreme Court rejected the proposition that an individual or defined group is subject to a bill of attainder merely because Congress singles them out.
Planned Parenthood’s second argument is that the defunding provision violates the Fifth Amendment’s equal-protection clause because it applies almost exclusively to Planned Parenthood and not to “other similar providers.”
The group’s final contention is that “the defund provision unconstitutionally retaliates against Planned Parenthood’s exercise of its First Amendment rights.” Specifically, Congress is “targeting Planned Parenthood for its political stances on reproductive health,” which violates the plaintiff’s right to freedom of speech.
Unrestrained Order
The Supreme Court has already rejected these absurd claims in other cases such as Rust. “In its papers,” penned Spivak, “Planned Parenthood cites no Supreme Court case compelling Congress to appropriate spending on these grounds.” That is because Congress, practically speaking, has carte blanche to spend — or not to spend — as it desires, as long as such spending falls within its enumerated powers.
Talwani, however, accepted Planned Parenthood’s arguments, writing in her amended TRO that she was blocking implementation of the defunding provision on First- and Fifth-Amendment grounds. Moreover, according to Spivak:
She also rejected the government’s concern that it would be harmed if it paid money to Planned Parenthood, because, she averred, the government likely would instead use the funds to pay another provider. By that logic, a mugger is only taking money that his victim would probably spend on something else.
Logical or not, Planned Parenthood got what it wanted — for the time being. Given the clear wording of the Constitution and Supreme Court precedents, though, the organization’s elation is likely to be aborted by higher courts.
