Targeted Medicaid Defunding, the Bill of Attainder Clause, and “Affiliates”: Commentary on Planned Parenthood Federation of America, Inc. v. Kennedy

I. Introduction

In Planned Parenthood Federation of America, Inc. v. Kennedy, Nos. 25‑1698 & 25‑1755 (1st Cir. Dec. 12, 2025), the First Circuit confronted a highly charged statute, Section 71113 of the 2025 Reconciliation Act, that effectively suspends Medicaid funding for one year to almost all Planned Parenthood affiliates across the country and two other abortion‑providing entities. The plaintiffs – the national Planned Parenthood Federation of America (“PPFA”), a “Qualifying” member (Planned Parenthood League of Massachusetts), and a “Non‑Qualifying” member (Planned Parenthood Association of Utah) – obtained preliminary injunctions in the District of Massachusetts, based on: 1. A Bill of Attainder claim; 2. An unconstitutional conditions / freedom of association claim; and 3. An equal protection claim (argued to trigger strict scrutiny because it burdens a fundamental right of association). The First Circuit vacated those injunctions, holding that the plaintiffs were unlikely to succeed on the merits. In doing so, the court produced an important precedent at the intersection of: - The Bill of Attainder Clause and conditional federal spending; - Constitutional avoidance and the interpretation of “affiliate” in federal statutes; and - The application of deferential rational basis review to a statute that, as a practical matter, targets one national healthcare network with profound political salience. This commentary analyzes the opinion’s structure, its reliance on precedent, and its implications for future litigation over targeted federal defunding and associational rights.

II. Background

A. Planned Parenthood’s Structure and Role in Medicaid

The opinion clarifies that “Planned Parenthood” is not a single corporate entity. Rather: - PPFA is a national § 501(c)(3) membership organization. - It has forty‑seven independently incorporated not‑for‑profit “Members,” including: - Planned Parenthood League of Massachusetts (a “Qualifying Member” under the statute), and - Planned Parenthood Association of Utah (a “Non‑Qualifying Member”). Key structural points: - Each Member: - Has its own CEO, governance, staff, and operations. - Operates health centers (about 600 collectively) across 47 states and D.C. - PPFA: - Administers accreditation standards, - Promulgates medical standards, - Leads policy and program initiatives, and - Coordinates national advocacy. The Members share the mission of providing “high‑quality, inclusive, and comprehensive sexual and reproductive healthcare,” along with education, research, and advocacy. Collectively, they served over two million patients in FY 2023 and are major providers of contraception, cancer screening, STI testing, vasectomies, colposcopies, and abortion (where legal). Medicaid is central to this ecosystem: - Medicaid is a joint federal‑state program designed to fund medical care for individuals and families with insufficient income and resources (citing Medina v. Planned Parenthood S. Atlantic, 606 U.S. 357 (2025), and Armstrong v. Exceptional Child Center). - All states and D.C. participate; territories participate under capped arrangements. - PPFA itself is not a direct Medicaid provider; its Members are. - Medicaid: - Covers roughly half of patient visits to Members’ health centers. - Insures more than half of the Members’ overall patient base. - The Hyde Amendment (most recently Pub. L. No. 118‑42, § 202, 138 Stat. 25, 153 (2024)) bars federal Medicaid funds from paying for most abortions, with limited exceptions; family planning, however, is a mandatory Medicaid benefit.

B. Section 71113 and its Legislative History

Section 71113 appears in the 2025 Reconciliation Act (Pub. L. No. 119‑21, § 71113, 139 Stat. 72, 300–01 (July 4, 2025)) and provides: - For a one‑year period beginning at enactment, no federal Medicaid funds (direct spending) may be used to make payments to a “prohibited entity” for services furnished during that time. A “prohibited entity” is defined as an entity (including its “affiliates, subsidiaries, successors, and clinics”) that, as of October 1, 2025: 1. Is a § 501(c)(3) tax‑exempt organization; 2. Is an “essential community provider” primarily engaged in family planning, reproductive health, and related care; 3. Provides abortions (other than specified exceptions); and 4. For FY 2023, had more than $800,000 in combined federal and state Medicaid expenditures, either: - Paid directly to the entity or its affiliates/subsidiaries/successors/clinics, or - Paid to them as part of a nationwide health care provider network. Two key facts: - In practical effect, the criteria capture: - Thirty‑seven Planned Parenthood Members (the “Qualifying Members”), and - Two other non‑Planned‑Parenthood providers: Family Planning Association of Maine and Health Imperatives (Massachusetts). - Ten Planned Parenthood Members, including the Utah association, are “Non‑Qualifying Members” because they either: - Do not provide abortions, or - Did not hit the $800,000 Medicaid funding threshold in FY 2023. The statute’s reach extends beyond entities that independently meet the four criteria, to their undefined “affiliates,” raising the specter that Non‑Qualifying Members might be swept in solely by virtue of their association with Qualifying Members. The legislative history is unmistakably focused on Planned Parenthood: - Over multiple sessions, Congress debated bills to “defund Planned Parenthood,” including reconciliation proposals. - Representatives on the floor described these efforts as: - “Defund[ing] Planned Parenthood”; - “Eliminat[ing] funding for Planned Parenthood”; - Being “proud to defund Planned Parenthood once and for all.” - When the 2025 Reconciliation Act (containing Section 71113) was moving, proponents touted it as an opportunity to “stop funding abortion purveyors like Planned Parenthood” and to “redirect funds away from Big Abortion.” Although these earlier bills did not become law, the same general objective – cutting off federal funds to Planned Parenthood and similar abortion providers – is the evident animating purpose of Section 71113.

C. District Court Proceedings

On July 7, 2025, PPFA, Planned Parenthood League of Massachusetts, and Planned Parenthood Association of Utah sued HHS, CMS, and their officials in the District of Massachusetts. They sought: - Declaratory relief that Section 71113: - Is an unconstitutional bill of attainder; - Imposes unconstitutional conditions on the First Amendment right to association; - Violates equal protection, either because it burdens a fundamental right (association with Planned Parenthood) or, failing that, lacks rational basis. - Alternatively, a declaration that Section 71113 does not apply to Non‑Qualifying Members (or, if it does, that this application is unconstitutional). - Injunctive relief barring enforcement. The district court: - Issued a temporary restraining order (TRO) immediately and an amended TRO days later; - On July 21, 2025, issued a preliminary injunction as to Non‑Qualifying Members; - On July 28, 2025, extended the preliminary injunction to all Members, incorporating earlier findings. The court held that Planned Parenthood had shown a likelihood of success on: 1. The Bill of Attainder claim (viewing Section 71113 as punitive and specifically targeting Planned Parenthood); 2. The unconstitutional conditions claim (viewing the undefined “affiliates” clause as coercing Non‑Qualifying Members to disassociate to preserve Medicaid funding); 3. The equal protection claim (applying strict scrutiny based on a burden on associational rights and finding the law not narrowly tailored). The government appealed both preliminary injunctions. After interim skirmishing over stays (including a temporary denial of stay as premature and later a stay by the First Circuit pending appeal), the First Circuit heard oral argument on November 12, 2025.

D. Standard of Review on Appeal

The court reiterates the standard for preliminary injunctions: - A plaintiff must show: 1. Likelihood of success on the merits; 2. Likelihood of irreparable harm absent relief; 3. Balance of equities in its favor; 4. That an injunction serves the public interest (Winter v. NRDC, 555 U.S. 7 (2008)). However: - “Likelihood of success” is the “main bearing wall” of the framework (Corp. Techs. v. Harnett, 731 F.3d 6, 9–10 (1st Cir. 2013)). - Legal errors in assessing likelihood of success are reviewed de novo and fall outside the district court’s discretion. Focusing on the merits, the First Circuit concludes that the plaintiffs are not likely to prevail on any of their constitutional theories, rendering the preliminary injunctions unsustainable.

III. Summary of the Opinion

The First Circuit’s main holdings are: 1. Bill of Attainder: Section 71113 is not “punishment” within the meaning of the Bill of Attainder Clause. It operates as a prospective condition on the receipt of federal Medicaid funds, imposed through Congress’s Spending Clause authority, and does not impose a retroactive penalty for past conduct. The statute’s structure, text, and purpose – halting federal Medicaid funding to abortion providers – support a nonpunitive classification, even if the legislation is heavily focused on Planned Parenthood and imposes severe practical burdens. 2. Unconstitutional Conditions / Freedom of Association: The court adopts a narrow, control‑based reading of “affiliates,” grounded in Black’s Law Dictionary, corporate law usage, and canons of statutory construction. Under this interpretation, “affiliate” turns on corporate control (the power to direct management and policies), not mere expressive association, membership, or shared standards. So construed, Section 71113 does not condition Medicaid funds on the relinquishment of associational rights; thus, the plaintiffs’ unconstitutional conditions claim is unlikely to succeed. 3. Equal Protection: Because “affiliates” is read in a way that does not target or penalize associational rights, Section 71113 does not impinge a fundamental right and is reviewed under rational basis. The statute survives that deferential test: - Congress has a legitimate interest in reducing abortion or reducing the federal subsidy of abortion providers. - It is rational to focus defunding on entities that are major recipients of Medicaid funds and heavily engaged in family planning and abortion services. - Underinclusiveness and the allegedly poor “fit” between the funding criteria and actual abortion provision do not render the statute irrational. Having rejected plaintiffs’ likelihood of success on all three theories, the First Circuit vacates the July 21 and July 28 preliminary injunctions and remands for further proceedings, specifically noting that fact‑finding regarding “affiliate” status may proceed in connection with the plaintiffs’ declaratory judgment claim.

IV. Detailed Analysis

A. The Bill of Attainder Claim

1. The Constitutional Framework

The Bill of Attainder Clause, U.S. Const. art. I, § 9, cl. 3, bars Congress from enacting “[n]o Bill of Attainder,” which historically refers to legislative acts that inflict punishment on named individuals or easily ascertainable groups without a judicial trial. The Supreme Court’s modern framework (as summarized in Selective Service System v. Minnesota PIRG, 468 U.S. 841 (1984), and Nixon v. Administrator of General Services, 433 U.S. 425 (1977)) asks: 1. Does the statute inflict “punishment”? 2. Upon identifiable individuals or groups? 3. Without the protections of a judicial trial? Because the First Circuit finds no “punishment,” it does not reach the “identifiable individual” and “no trial” prongs. For “punishment,” the Court applies the three familiar Nixon factors: - (a) Historical punishment: Does the measure fit within traditional forms of legislative punishment (death, imprisonment, banishment, confiscation of property, or legislative disqualification from particular occupations)? - (b) Functional test: Does the burden reasonably further a nonpunitive legislative purpose, or is it excessive in relation to any legitimate objective? - (c) Motivational test: Does the legislative record reveal an intent to punish, rather than to regulate prospectively or accomplish some nonpunitive goal? The Supreme Court has found bills of attainder only five times since Reconstruction (Cummings, Ex parte Garland, Pierce v. Carskadon, United States v. Lovett, and United States v. Brown), underscoring the narrowness of the doctrine.

2. The District Court’s View

The district court treated Section 71113 as akin to historic occupational disqualifications: - Although there was no imprisonment, property confiscation, or death sentence, the court viewed the law as effectively barring the plaintiffs from their vocation: - They would lose the financial lifeblood for serving large swaths of their patient base. - They would be pressured to abandon either abortion services or Medicaid patients, both central to their mission. - The court found: - A poor fit between Section 71113’s design and any nonpunitive purpose, because: - It targeted virtually only Planned Parenthood and had little impact on other abortion providers; - Federal law already barred direct Medicaid funding for elective abortions (Hyde Amendment). - Legislative statements explicitly calling to “defund” Planned Parenthood demonstrated punitive intent focused on a politically disfavored group. - Taken together, the district court held that Section 71113 imposed a severe occupational disability, not justified by a nonpunitive purpose, and motivated by a desire to harm Planned Parenthood – thus likely a bill of attainder.

3. The First Circuit’s Rejection of “Punishment”

The First Circuit disagrees at each step. (a) Historical punishment The court emphasizes a sharp distinction between: - Statutes that impose retroactive, non‑contingent disabilities on identified individuals for past conduct (the classic bills of attainder/pains and penalties); and - Prospective conditions on eligibility for future government benefits, especially discretionary funding. Section 71113, it holds: - “Looks ahead,” rather than punishing past acts: - It does not criminalize or penalize prior abortions performed. - It simply changes the conditions under which future Medicaid funds will be paid. - Imposes no “affirmative disability or restraint” comparable to incarceration, banishment, or permanent employment bans: - It denies a noncontractual governmental benefit (future Medicaid reimbursements) for a limited duration (one year). - It explicitly leaves open a route to continued funding: cease performing abortions (subject to enumerated exceptions). - Therefore, like the benefits denial in Selective Service System (denial of federal student aid to draft non‑registrants, unless/until they register), it does not fall within the “historical meaning of forbidden legislative punishment.” The court underscores that corporate entities may warrant different treatment in this analysis, citing: - ACORN v. United States, 618 F.3d 125 (2d Cir. 2010), which held that congressional refusal to appropriate funds to a named nonprofit did not amount to historical punishment; and - TikTok, Inc. & ByteDance Ltd. v. Garland, 122 F.4th 930 (D.C. Cir. 2024), which assumed corporations can invoke the Bill of Attainder Clause but emphasized that what counts as “punishment” may differ for corporate entities. Without definitively deciding whether corporations fall within the Clause’s ambit, the First Circuit assumes they do and still finds no “punishment.” (b) Nonpunitive legislative purpose vs. excessive burden The court accepts at face value the government’s proffered purpose: - To “halt federal Medicaid funding for abortion providers,” thereby: - Reducing financial support to entities that perform abortions; and/or - Incentivizing them to stop providing abortions, or at least reducing their capacity to do so. On this point, the court invokes Sabri v. United States, 541 U.S. 600 (2004), stressing the fungibility of money: - Even if federal funds cannot directly pay for abortions under Hyde, federal Medicaid reimbursements for other services can still: - Free up nonfederal funds, - Contribute to organizational capacity, - Indirectly support the infrastructure that makes abortion provision possible. Thus, Congress could rationally believe that cutting Medicaid funds to abortion providers would, over time, reduce abortions or diminish such providers’ scale and reach. The opinion also notes: - Underinclusiveness – the fact that many other abortion providers remain funded – does not convert a regulation into punishment. - Nixon held that underinclusiveness is not fatal; the Bill of Attainder Clause does not impose a narrow‑tailoring requirement. - Kaspersky Lab v. DHS, 909 F.3d 446 (D.C. Cir. 2018), similarly holds that Congress may respond to perceived threats incrementally without turning regulation into punishment. In short, Section 71113 may be politically pointed and arguably over‑ or under‑inclusive as policy, but it reasonably furthers a nonpunitive objective. (c) Legislative intent to punish The record contains extensive statements by individual legislators calling for defunding Planned Parenthood, often using sharp rhetoric (“Child Abuse, Incorporated,” “Big Abortion”). The district court read these as evidence of punitive motive. The First Circuit cautions against overreading such statements: - Under Selective Service System and Nixon, courts are to be “reluctant to conclude that Congress intended to punish,” especially where: - A plausible nonpunitive purpose exists; and - The challenged measure fits within Congress’s spending authority. - Calls to “defund” reflect policy judgments about future funding, not necessarily punitive judgments about past conduct. - Statements made in connection with prior, failed legislative efforts are especially weak evidence of intent regarding the statute that actually passed (citing Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 382 n.11 (1969)). Given the presence of a nonpunitive purpose and the forward‑looking, conditional nature of the burden, the court refuses to treat the contentious legislative rhetoric as proof of unconstitutional punishment.

4. Doctrinal Significance

The opinion’s bill‑of‑attainder analysis cements several important propositions: - Prospective spending conditions are rarely “punishment”: Even when aimed at a narrow, easily ascertainable group (here, practically speaking, Planned Parenthood), a statute that prospectively alters eligibility for federal funds is presumptively regulatory, not punitive. - Severe practical impact is not enough: The fact that losing Medicaid reimbursements threatens Planned Parenthood’s capacity to deliver care does not transform the statute into a historical punishment; the law’s structure and temporal orientation matter. - Corporations and punishment: The court acknowledges that what counts as punishment may differ for corporate entities, aligning with ACORN and TikTok, and further narrowing the Bill of Attainder doctrine’s reach over line‑item defunding of NGOs or contractors. - Legislative intent is filtered through deference: Courts will not infer punitive motive where Congress’s action can reasonably be understood as pursuing a policy goal within its spending power, even if legislators use antagonistic rhetoric toward the affected entities. The net result is a very restrictive view of the Bill of Attainder Clause in the context of spending‑cut statutes, even those that, as a practical matter, “single out” a controversial organization.

B. The Unconstitutional Conditions / Associational Rights Claim

1. The Doctrine of Unconstitutional Conditions

The unconstitutional conditions doctrine holds that: - Government may not deny a benefit on a basis that infringes a constitutionally protected right, even if the recipient has no entitlement to that benefit (Rumsfeld v. FAIR, 547 U.S. 47, 59 (2006); Agency for Int’l Development v. AOSI, 570 U.S. 205, 214 (2013)). Applied to federal funding: - Congress has wide latitude under the Spending Clause to attach conditions to federal funds (Rust v. Sullivan, 500 U.S. 173 (1991); Lyng v. UAW, 485 U.S. 360 (1988)). - But conditions become unconstitutional when they: - Compel speech or belief outside the funded program (AOSI); or - Coerce relinquishment of protected associational or expressive rights. The plaintiffs argued that Section 71113: - Forces Non‑Qualifying Members (that do not themselves provide abortions) to choose between: - Maintaining association with PPFA and other Members that do provide abortions (risking classification as “affiliates” of a “prohibited entity”); or - Disassociating (and presumably exiting PPFA) to preserve Medicaid eligibility. - Thus, the statute allegedly conditions Medicaid participation on the loss of First Amendment associational rights. The strength of this argument hinged entirely on what “affiliates” means.

2. Competing Views of “Affiliates”

The district court accepted the plaintiffs’ concern that, under the government’s implementation, “affiliates” might be defined by: - Membership in the PPFA federation; - Compliance with PPFA’s accreditation standards; - Participation in shared medical guidelines or advocacy efforts. If “affiliation” turned on such expressive or organizational ties, then: - Non‑Qualifying Members could be swept in solely because they choose to associate with PPFA and other Members that provide abortions; - To avoid being treated as an “affiliate,” they would have to break those associations; and - That would, in substance, be a condition on the exercise of associational rights – a classic unconstitutional conditions problem. The First Circuit resolves this by re‑reading the statute, rather than accepting the government’s more amorphous enforcement hints.

3. The First Circuit’s Narrow Reading of “Affiliates”

The court anchors its interpretation in several tools: (a) Text and legal usage - Section 71113 defines “prohibited entity” as “an entity, including its affiliates, subsidiaries, successors, and clinics.” - Without an explicit statutory definition, the court applies the presumption that Congress adopts settled legal meanings of technical terms. - It turns to Black’s Law Dictionary: - “Affiliate”: A corporation related to another by shareholdings or other means of control; a subsidiary, parent, or sibling corporation. - “Control”: The power to govern management and policies through ownership, contract, or otherwise. - This suggests that affiliation is about corporate control, not mere association or shared values. (b) Noscitur a sociis and statutory context The court notes that “affiliates” appears in a cluster with “subsidiaries, successors, and clinics” – all corporate or organizational status terms. - Under the canon that words are known by the company they keep (noscitur a sociis): - “Affiliates” should be read in a similar corporate‑control sense, not suddenly expanded to capture looser membership or expressive ties. The opinion further supports this reading by pointing to the broader federal statutory landscape: - Numerous statutes define “affiliate” in terms of ownership or control – in insurance, telecommunications, securities, and banking. - While the substantive contexts differ, the persistent theme is: - Affiliation = control or common control, not ideology, advocacy, or professional alignment. (c) Constitutional avoidance Even more decisively, the court invokes the canon of constitutional avoidance: - If one reading of a statute raises “serious doubt” about constitutionality, and another “fairly possible” reading avoids the problem, courts must adopt the latter (Zadvydas v. Davis, 533 U.S. 678, 689 (2001); applied through Kong v. United States, 62 F.4th 608, 615 (1st Cir. 2023)). - A broad, association‑based definition of “affiliate” would risk an unconstitutional condition on associational rights. - A narrow, control‑based definition: - Is textually plausible (indeed, it is the dominant meaning in corporate law); - Fits the statutory context; and - Avoids the constitutional problem. Accordingly, the court holds that the best reading of “affiliates” is the narrow, control‑based one. (d) Post‑argument CMS guidance After oral argument, CMS issued guidance to state Medicaid agencies that aligns with the court’s reading: - CMS told states it interprets “affiliate” and “control” as defined by Black’s Law Dictionary. - States are tasked with identifying “prohibited entities” based on that control‑based understanding. This administrative interpretation reinforces the court’s textual and constitutional analysis.

4. Consequences for the Unconstitutional Conditions Claim

Once “affiliate” is locked into a corporate‑control meaning: - Whether a Non‑Qualifying Member is a “prohibited entity” no longer hinges on its expressive association with PPFA (membership, advocacy alignment, shared standards). - Instead, it turns on whether it and a Qualifying Member are: - Under common control; or - In a parent‑subsidiary or analogous control relationship. Thus: - Section 71113 does not require disassociation from PPFA or other Members as a condition of receiving Medicaid funds. - Any burden on associational rights is, at most, incidental and not a trigger for unconstitutional‑conditions scrutiny. - The plaintiffs’ unconstitutional conditions claim is therefore unlikely to succeed. The court leaves open: - The factual question whether specific Non‑Qualifying Members actually meet the “affiliate” standard as now defined. - It signals that this is for the district court to address, if requested, under the plaintiffs’ separate declaratory judgment claim (which was not adjudicated at the preliminary injunction stage).

C. The Equal Protection Claim

1. Equal Protection under the Fifth Amendment

The Fifth Amendment’s Due Process Clause contains an implicit equal protection guarantee (Bolling v. Sharpe, 347 U.S. 497 (1954)), applied here to federal action. The First Circuit evaluates such claims under the same framework used for Fourteenth Amendment equal protection challenges (United States v. Blewitt, 920 F.3d 118, 123 (1st Cir. 2019)). Three levels of scrutiny generally apply: - Strict scrutiny: For classifications based on suspect classes (e.g., race) or that burden fundamental rights (e.g., political association, marriage). The government must show the law is narrowly tailored to a compelling interest. - Intermediate scrutiny: For certain quasi‑suspect classes (e.g., sex). - Rational basis: Default level; the classification need only bear a rational relationship to a legitimate governmental interest. The plaintiffs argued that Section 71113 burdens a fundamental right – the right to associate with PPFA and other Members – thereby triggering strict scrutiny.

2. Level of Scrutiny: No Fundamental Right Implicated

The level of scrutiny question turns on the same “affiliates” issue: - The district court had read Section 71113 as effectively forcing Members to sever ties with PPFA to avoid being “affiliates,” thus burdening a fundamental associational right and warranting strict scrutiny. - Once the First Circuit reinterprets “affiliates” in a narrow, control‑based way, that premise collapses. Under the First Circuit’s reading: - Section 71113 does not classify entities because of whom they associate with, but because of: - What they do (provide abortions), and - Their structural characteristics (nonprofit, essential community provider engaged in family planning, significant Medicaid funding, and corporate control ties to such entities). - Associational rights are not directly conditioned or penalized; any impact on association is indirect and incidental. Therefore: - The statute does not infringe a fundamental right, and - Rational basis review is the appropriate standard.

3. Rational Basis Review and Deference to Congress

Under rational basis review: - The classification is presumed valid. - The challenger must “negative every conceivable basis” that might sustain it (FCC v. Beach Communications, 508 U.S. 307, 315 (1993)). - Courts: - Do not require empirical data; - Accept “rational speculation” as sufficient (Heller v. Doe, 509 U.S. 312, 320 (1993)); - Do not weigh “wisdom or desirability” of the policy (New Orleans v. Dukes, 427 U.S. 297, 303 (1976)); - Allow legislatures to proceed “one step at a time” and address “the phase of the problem which seems most acute” (Williamson v. Lee Optical, 348 U.S. 483, 489 (1955)). The government’s asserted interests include: - Reducing abortions and/or the federal subsidy of abortion providers; - Targeting entities that: - Are heavily engaged in family planning and reproductive services (and thus likely to perform a “disproportionate number” of abortions compared to general providers); and - Receive substantial Medicaid funding (suggesting a large Medicaid‑dependent patient population and significant fiscal leverage).

4. Application to Section 71113

The plaintiffs raised three main rational basis arguments: 1. Underinclusiveness: Only Planned Parenthood Members (and two other entities) are effectively targeted, despite many other abortion providers existing. 2. Poor proxy: The $800,000 Medicaid threshold is said to be a crude measure, not a meaningful indicator of abortion provision. 3. Counterproductive effects: They argued empirical data show abortions increase when Planned Parenthood clinics close, making the law self‑defeating as a means of reducing abortions. The First Circuit rejects these challenges as insufficient under rational basis: - Underinclusiveness is allowed: - Congress may tackle the perceived “most acute” part of a problem – here, what it views as the most significant Medicaid‑funded abortion providers. - Incrementalism is not irrational; legislatures may choose where to start. - The $800,000 criterion is rational: - It identifies entities that are substantial Medicaid recipients and, presumptively, more dependent on those funds. - This helps Congress redirect a significant quantum of Medicaid funding elsewhere and maximize its leverage in seeking to influence provider behavior. - Empirical contestation is beside the point: - Rational basis does not require Congress to be right; it only requires that Congress could reasonably believe the measure would further its goals. - Conflicting data do not negate every conceivable rational basis. “Wisdom and utility” are legislative questions as long as they are “at least debatable” (Minnesota v. Clover Leaf Creamery, 449 U.S. 456, 469 (1981)). Accordingly: - There is a plausible rational relationship between: - The classification (nonprofits, essential community providers, primarily family‑planning focused, providing abortions, receiving substantial Medicaid funding, and their corporate affiliates); and - The legitimate governmental interest (reducing the federal subsidization of abortion providers, or reducing abortions themselves). - The plaintiffs thus fail to carry the heavy burden of invalidating the statute under rational basis.

5. Doctrinal Significance

The equal protection analysis underscores: - Associational rights cannot be “bootstrapped” via interpretive choices: Once the statute is read narrowly to avoid associational burdens, it becomes a mundane economic‑regulation classification subject to rational basis. - Political targeting is not, by itself, irrational: Even a law designed to impact a particular politically controversial provider network passes rational basis if the criteria are not unmoored from legitimate aims. - Empirical disputes do not invalidate legislation under rational basis: Data suggesting a law is counterproductive at its stated goals do not doom it; Congress may legislate on “rational speculation.”

V. Precedents and Doctrinal Threads

This opinion integrates several strands of constitutional law. Key precedents, and their roles, include:

A. Bill of Attainder Lineage

- Cummings v. Missouri, 71 U.S. 277 (1867); Ex parte Garland, 71 U.S. 333 (1867); Pierce v. Carskadon, 83 U.S. 234 (1872): - Struck down post‑Civil War loyalty oath requirements that barred former Confederates and sympathizers from professions (ministry, law) and public roles. - Illustrate classic punitive measures: backward‑looking occupational disqualifications imposed because of prior allegiance. - United States v. Lovett, 328 U.S. 303 (1946): - Congress barred payment of salaries to named federal employees deemed “subversive.” - Held a bill of attainder: targeted named individuals for punitive economic disqualification, with no trial. - United States v. Brown, 381 U.S. 437 (1965): - Invalidated a statute criminalizing Communist Party members serving as union officers. - Again, classic legislative punishment of a political group. - Nixon v. Administrator of General Services, 433 U.S. 425 (1977): - Upheld a statute governing President Nixon’s presidential papers; articulated the three‑factor punishment test (historical, functional, motivational). - Selective Service System v. Minnesota PIRG, 468 U.S. 841 (1984): - Upheld denial of federal student aid to male students who failed to register for the draft, provided they could regain eligibility by registering. - Crucial to the First Circuit’s reasoning: - Prospective denial of a noncontractual benefit; - No “punishment” where the statute leaves open a continuing possibility to qualify. - Consolidated Edison Co. of N.Y. v. Pataki, 292 F.3d 338 (2d Cir. 2002): - Held a New York statute targeting ConEd for costs of a nuclear incident was an unconstitutional bill of attainder. - Cited here to illustrate a rare contemporary corporate attainder case, but distinguished as lacking a credible nonpunitive justification. - ACORN v. United States, 618 F.3d 125 (2d Cir. 2010): - Rejected ACORN’s bill‑of‑attainder challenge to congressional appropriation riders barring ACORN from certain federal funds. - Emphasized that withholding appropriations from a corporation is not a “traditional” punishment. - Kaspersky Lab v. DHS, 909 F.3d 446 (D.C. Cir. 2018): - Upheld a statute banning Kaspersky software from federal systems, rejecting a bill‑of‑attainder claim. - Important for the principle that neither underinclusiveness nor line‑of‑business restrictions with a potential for voluntary compliance necessarily amount to punishment. - TikTok, Inc. & ByteDance Ltd. v. Garland, 122 F.4th 930 (D.C. Cir. 2024): - Addressed line‑of‑business restrictions and corporate Bill of Attainder claims (the text says the D.C. Circuit assumed arguendo that the Clause applies to corporations). - Cited for the notion that some measures that might be punitive for individuals may not be so for corporations.

B. Spending Clause and Unconstitutional Conditions

- Rust v. Sullivan, 500 U.S. 173 (1991): - Upheld Title X regulations that prohibited project‑funded activities from counseling or referring for abortion, distinguishing between funding chosen speech and restricting private speech. - Lyng v. UAW, 485 U.S. 360 (1988): - Upheld cutting food stamps to striking workers, emphasizing deference to Congress’s spending choices and caution in labeling funding decisions as punitive. - Agency for Int’l Development v. AOSI, 570 U.S. 205 (2013): - Invalidated a funding condition that required grantees to adopt a policy expressly opposing prostitution, holding that it compelled speech outside the funded program. - Cited to show limits of spending conditions that intrude on expressive autonomy. - Rumsfeld v. FAIR, 547 U.S. 47 (2006): - Upheld the Solomon Amendment, conditioning funding on law schools’ allowing military recruiters equal access. - Important for the proposition that denial of a benefit cannot be based on infringement of constitutional rights, and for the analytical framework around expressive association and compelled hosting. - Sabri v. United States, 541 U.S. 600 (2004): - Upheld federal bribery statutes tethered to federal funding, emphasizing fungibility of money and Congress’s broad prophylactic power to protect the federal fisc. - Here, it supports the idea that cutting funds to abortion providers can reasonably be thought to reduce abortions, even though Hyde already bars direct payment for abortions.

C. Equal Protection and Rational Basis

- FCC v. Beach Communications, 508 U.S. 307 (1993): - Landmark rational‑basis case: classifications get a “strong presumption of validity,” and challengers must negate every conceivable basis. - Heller v. Doe, 509 U.S. 312 (1993): - Reiterated that rational basis allows reliance on “rational speculation unsupported by evidence.” - Williamson v. Lee Optical, 348 U.S. 483 (1955): - Famous for allowing legislatures to act incrementally and to choose their points of intervention in regulatory problems. - New Orleans v. Dukes, 427 U.S. 297 (1976): - Emphasized that, under rational basis, courts are not “superlegislatures” weighing the wisdom of regulations. - Minnesota v. Clover Leaf Creamery, 449 U.S. 456 (1981): - Held that even if a law’s benefits are debatable, its rationality is determined by whether the assumptions are at least reasonable. - United States v. Carolene Products, 304 U.S. 144 (1938): - Early articulation of the presumption of constitutionality for economic regulation. These precedents underscore the extreme deference the First Circuit accords Congress under rational basis review.

VI. Impact and Future Implications

A. For Abortion Providers and Medicaid Policy

This decision substantially strengthens Congress’s hand to: - Use the Spending Clause to target abortion providers for exclusion from federal funding, even in ways that effectively single out one major provider network. - Design eligibility criteria that, although not facially naming entities, are finely calibrated to reach a specific national organization and a small set of similarly situated providers. Practically: - Planned Parenthood Members in states within the First Circuit’s territorial reach (and, by persuasive authority, beyond) face a high bar to constitutional challenges based on bills of attainder, unlawful conditions, or equal protection. - Other Medicaid‑funded reproductive health providers can expect that targeted defunding measures of this kind will be evaluated under: - Highly deferential rational basis for equal protection; - Restrictive bill‑of‑attainder analysis; and - Narrow interpretive constructions of “affiliate” designed to avoid, rather than confront, associational issues.

B. For Congressional Power to “Name‑and‑Shame” in Appropriations

Building on ACORN and Kaspersky, this opinion: - Signals that line‑item or quasi‑targeted spending cuts aimed at named or easily identifiable organizations will almost never be struck down as bills of attainder, so long as: - They operate prospectively; - They do not impose fines, imprisonment, or permanent status bars; and - They can be plausibly linked to a regulatory or policy purpose. Coupled with the reluctance to attribute punitive intent where any nonpunitive justification exists, this strengthens Congress’s ability to: - Withhold or redirect funds away from controversial groups (abortion providers, NGOs, contractors, etc.) based on disapproval of their current activities.

C. For Corporate Bill of Attainder Claims

The First Circuit’s careful note that corporations and individuals may be differently situated for Bill of Attainder analysis suggests: - Courts are increasingly skeptical that conventional corporate funding cuts constitute “punishment.” - Corporate plaintiffs alleging bills of attainder will need to show not just targeting, but: - Non‑contingent, backward‑looking disqualifications; and - A lack of any plausible regulatory purpose.

D. For “Affiliate” Definitions Across Federal Law

The opinion’s treatment of “affiliates” and “control” has broader interpretive implications: - It treats “affiliate” as a technical corporate term, with an embedded presumption of control‑based meaning, unless Congress clearly states otherwise. - That reading is reinforced through: - Black’s Law Dictionary; - Analogy to definitions across disparate statutory schemes; and - Noscitur a sociis. Consequently: - In other federal statutes where “affiliate” is left undefined, courts in the First Circuit (and likely elsewhere) may: - Default to a control‑based definition; - Resist attempts to stretch “affiliate” to capture mere membership, coordination, or ideological alignment; and - Use constitutional avoidance proactively to constrain ambiguous “affiliation” language, especially when First Amendment interests are implicated.

E. For Ongoing and Related Litigation

The opinion references a parallel case: - Family Planning Association of Maine v. HHS, where a non‑Planned‑Parenthood entity captured by Section 71113 challenged the law under equal protection in D. Me. and lost at the preliminary injunction stage. That appeal is pending. This First Circuit decision: - Provides a roadmap for rejecting similar challenges; - Strongly suggests that, on appeal, the equal protection challenge in the Maine case will also face an uphill battle under rational basis. On remand in the present case: - The district court may still adjudicate: - Whether, on the facts, Non‑Qualifying Members like Planned Parenthood Association of Utah are “affiliates” under the control‑based test. - Whether some Members genuinely lack any corporate‑control ties to Qualifying Members, in which case they might fall outside the statute’s scope altogether. But those are statutory application questions, not constitutional ones.

VII. Complex Concepts Simplified

This section distills some of the central doctrinal concepts for readers less versed in constitutional law.

A. What Is a “Bill of Attainder”?

Historically: - A bill of attainder was a law passed by a legislature that: - Declared a person or group guilty of misdeeds; and - Imposed punishment (often death, exile, or property confiscation) without trial. The U.S. Constitution bans such acts to ensure that: - Punishing specific individuals is a judicial, not legislative, function. Modern courts ask: 1. Does the law single out an identifiable person/group? 2. Does it impose “punishment” in a traditional or functional sense? 3. Does it do so without judicial process? Laws that merely change who gets government funding in the future, especially when the targeted party can change its conduct to remain eligible, are usually seen as regulations – not punishment.

B. What Are “Unconstitutional Conditions”?

The idea: - Government often offers money (grants, contracts, benefits) on conditions. - However, it cannot say: - “You get this benefit only if you give up your constitutional rights,” such as: - Free speech, - Freedom of association, - Free exercise of religion. Example: - It is unconstitutional to require an organization to adopt the government’s view on an issue outside the funded program as a condition of funding. In this case: - The key question was whether Medicaid funding was conditioned on organizations giving up the right to associate with others who provide abortions. - By interpreting “affiliate” narrowly (corporate control only), the First Circuit concluded that the law did not demand any such trade‑off.

C. What Is “Rational Basis Review”?

Courts use different levels of scrutiny to evaluate whether a law unconstitutionally discriminates or burdens rights: - Rational basis review (most deferential): - Applies if no suspect class or fundamental right is involved. - The law is upheld if: - There is any legitimate government purpose; and - The classification is at least plausibly related to that purpose. - Under this test: - Courts accept “common sense” or speculative justifications. - Challengers must disprove every conceivable rational reason the legislature might have had. In Planned Parenthood v. Kennedy, the court applied rational basis and held that: - Targeting large, Medicaid‑dependent abortion providers to reduce the federal subsidy of abortion is at least rational.

D. What Is “Constitutional Avoidance”?

When a statute can reasonably be read in more than one way, and: - One reading would raise serious constitutional problems, while - Another reading would avoid them, Courts will adopt the constitutionally safer reading, provided it is plausible. Here: - A broad reading of “affiliates” – that included mere membership or shared advocacy – would implicate First Amendment associational rights. - A narrow, control‑based reading fits the text and avoids those problems. - The court chose the latter.

E. What Does “Affiliate” Mean in This Context?

In everyday language, “affiliates” can mean entities that are connected, allied, or associated. Legally, especially in corporate and regulatory contexts: - “Affiliate” usually means: - An entity that owns, controls, or is under common control with another entity. - “Control” typically refers to: - The power to direct management and policies (through stock ownership, contracts, or other arrangements). The First Circuit held that: - In Section 71113, “affiliate” must be understood in this corporate‑control sense. - Mere membership in a national network, or shared advocacy and standards, is not sufficient to make one entity the “affiliate” of another, absent control.

VIII. Conclusion

Planned Parenthood Federation of America, Inc. v. Kennedy is a landmark in three respects: 1. Bill of Attainder limits: It powerfully narrows the practical reach of the Bill of Attainder Clause in the federal funding context. Even highly targeted, politically charged defunding of a controversial provider network does not amount to “punishment” if it is prospective, conditional, and plausibly tied to a policy goal within Congress’s spending power. 2. Interpretation of “affiliates” and associational rights: The court’s reliance on textualism, corporate law usage, and constitutional avoidance to read “affiliate” as a control‑based, not association‑based, concept significantly insulates Congress’s ability to reach organizational networks without directly burdening First Amendment association. That approach will likely influence interpretation of “affiliate” across a range of federal statutes. 3. Equal protection and deference in abortion‑related funding: By applying rational basis review to a statute that functionally targets Planned Parenthood, and by upholding it despite underinclusiveness and disputed empirical effects, the opinion reaffirms that litigation over funding decisions relating to abortion providers generally will be fought on highly deferential terrain, absent clear intrusion on fundamental rights or suspect classifications. At bottom, the First Circuit vacated the preliminary injunctions not because Section 71113 is benign as policy, but because, under existing constitutional doctrine, it is a harsh but permissible exercise of Congress’s power over the federal purse. Future challenges will likely focus less on grand constitutional theories and more on the technical application of “affiliate” and control – issues the court has now framed but left for factual development on remand.