The big political question for the remainder of this congressional term is whether Republicans will be able to pass a vote to defund Planned Parenthood. The more important question, though, is whether it is at all proper for them to try.
As an advocate of small government, I’m generally sympathetic to anything that takes federal money away from someone. You had me at “defund.” But as with so much else in this debate, the push to defund Planned Parenthood is an inadequate proxy for the real issues. It is poorly conceived, even as a protest against abortion or organ harvesting.
First, let’s be clear what we’re talking about. The bill as proposed in the Senate does not defund organizations like Planned Parenthood. It defunds Planned Parenthood, narrowly and specifically. Joni Ernst’s version is only two pages long and most of that is disclaimers about not reducing other federal funding for “health services to women.” The only effectual part of the legislation is this: “no Federal funds may be made available to Planned Parenthood Federation of America, or to any of its affiliates, subsidiaries, successors, or clinics.”
Technically, this is not an unconstitutional bill of attainder, a law specifically punishing a particular individual or organization, declaring them guilty without trial. Planned Parenthood doesn’t have a right to federal funds, so taking that money away is not technically a “punishment.” But this bill has all the intent of a bill of attainder: to destroy an organization regardless of whether it was operating legally and whether it could be found guilty in a court of law.
That’s why the most troubling proposal is the demand to defund Planned Parenthood while Congress investigates it. In other words, shoot first and ask questions later. The idea is to take a specific organization that you can demonize in the public mind and target it by name, without appealing to any wider principle.
The principle behind the Constitution’s ban on bills of attainder is that all laws should be general. Government policies should be guided by rules that apply to everyone, rather than having the winds of political fortune divide us into favorites and outcasts.
But there’s a good reason why advocates of the defunding bill don’t want to make it general. Existing law already bans federal funding for abortions (with certain narrow exceptions). The issue here is banning federal funds for all other services performed by organizations that also perform abortions, which is how Planned Parenthood gets its federal money. But a general law like that would hit a lot of other hospitals and clinics. It would start a war that is much wider than Planned Parenthood and would dictate the abortion policies of every health care provider. Given the reach of the federal government into every corner of the health care industry—a reach many abortion rights advocates have foolishly campaigned to expand—this would amount to a de facto ban on abortion.
There are better, more honest ways to approach this controversy. If Planned Parenthood has broken the law, investigate and prosecute them for that. Even if the Obama administration won’t investigate, Congress has its own power to investigate and gather irrefutable evidence of wrongdoing—if it can be found
If, as is more likely, Planned Parenthood is complying with the law as it is, then campaign to change the law. Fetal tissue donation was made legal in 1993. Congress has the power to make it illegal again.
But as narrow as that is, it will impact, not just Planned Parenthood, but also medical research facilities that use the donated organs and tissues—who are a more sympathetic target.
More important, a ban on donation of fetal tissue entangles this debate in the whole deeper argument over abortion. On the one hand, donation of fetal organs from elective abortions raises an ethical issue that is different from normal organ donation: the mother is donating tissue from a life that she herself has chosen to terminate, which is what makes the whole thing seem so ghoulish. On the other hand, if abortion is legal up to a certain stage of fetal development, then it is hard to argue that tissue donation should be illegal. If the law holds that a mother has an unlimited right to dispose of the fetus growing inside her, up to and including the right to kill it, it is hard to argue that she does not also have the right to dispose of its organs afterward. As emotionally disturbing as this is, it is a far less difficult claim than the right to terminate the fetus in the first place.
So this all really is a proxy for the fight over abortion itself. Why not just have that debate?
The answer is that we’ve been having that debate for a long time, and the pro-life side knows that they won’t win it, not yet. They’re hoping to use the emotional impact of these videos to break the logjam—but by demonizing and targeting a specific organization, rather than convincing the public to back a general change in policy. That’s a tactic we would complain about bitterly—it would usually be called “Alinskyite”—when the left uses it against us.
A lot of pro-life people will respond: who cares about the propriety of the means we use when the people we’re fighting are so evil? All’s fair in guerrilla war. But that’s the problem. This is what everyone says. It’s the mentality used to justify every dastardly attack someone aims at us. Who cares if it’s violating the rules to, say, threaten to cancel the broadcast licenses for Rupert Murdoch and Fox, because they’re so evil? And that’s why we can’t throw out the rules of propriety: they’re there to protect us, too. It reminds me of a famous exchange from the play “A Man for All Seasons.”
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat?
Knock down the rules because they get in the way of you targeting your enemies, and you will eventually find that the rules also prevented your enemies from targeting you. And for what? Ban funding for Planned Parenthood, and the people behind it could simply re-form a similar organization out of the ashes of Planned Parenthood, rendering the ban moot.
The push to defund Planned Parenthood should be rejected because it is emotional, narrow, unprincipled—and in the end, mostly just symbolic.