Rudy has taken some heat for his comments in the Dana Bash interview for CNN. Rudy portrays abortion as a constitutional right that requires government subsidy for poor women. However, the Supreme Court has specifically rejected the notion that constitutional rights must be publicly subsidized. In Rust v. Sullivan, 500 U.S. 173 (1991), the Court stated:

In Maher v. Roe, 432 U.S. 464 (1977), we upheld a state welfare regulation under which Medicaid recipients received payments for services related to childbirth, but not for nontherapeutic abortions. The Court rejected the claim that this unequal subsidization worked a violation of the Constitution. We held that the government may "make a value judgment favoring childbirth over abortion, and . . . implement that judgment by the allocation of public funds." Id., at 474. Here the Government is exercising the authority it possesses under Maher and Harris v. McRae, 448 U.S. 297 (1980), to subsidize family planning services which will lead to conception and childbirth, and declining to "promote or encourage abortion." The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other. "[A] legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right." Regan, supra, at 549. See also Buckley v. Valeo, 424 U.S. 1 (1976); Cammarano v. United States. "A refusal to fund protected activity, without more, cannot be equated with the imposition of a 'penalty' on that activity." McRae, supra, at 317, n.19. "There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy." Maher, supra, at 475.

Thus, even with Rudy’s concept of federalism and state funding of abortion (as opposed to federal funding), there seems to be no requirement that states subsidize abortion either. Certainly a state can choose to subsidize abortions for poor women, just as the federal government could choose to do so. However, there is no requirement that they do so.

This is one of the areas of divergence between Mitt and Rudy and exposes the need for an executive who will promote life issues. Because it is a choice of the government, the position (on abortion) of the President is pivotal. It is not sufficient to appoint ‘strict constructionist judges’ when so many of life issues are left to the discretion of the political branches.

Labels: abortion, Constititional rights, funding