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The Court’s Abortion Double Standard


As I’ve mentioned before, another way of seeing just how bad the Supreme Court’s recent campaign finance decision is to compare it to the infamous 1991 case Rust v. Sullivan. In the latter case, the Court upheld the gag order issued by the Reagan administration which prevented medical professionals who receive federal funding from even discussing abortion with their patients. Federal funding, in other words, was used to suppress speech that the government didn’t like, and yet the Supreme Court held that this did not violate the First Amendment.

In the Arizona campaign finance case, conversely, the state engaged in no restriction of speech at all, let alone one that discriminated on the basis of viewpoint. People who opt out of the state’s public finance system are not punished unless you think that wealthy people have an inherent right to keep the floor to themselves. Nobody is ineligible for public funding because they express views that governor disagrees with. With Rust v. Sullivan being good law, this should have been the easiest case imaginable — and yet the Court ruled that it was unconstitutional.

The punchline you can already see coming is that Kennedy and Scalia were part of the majority in both cases, and Roberts wrote a brief in favor of the gag order in his role as Deputy Solicitor General. (I suppose we don’t know how Alito and Thomas would vote on Rust, in the same sense that we don’t know to an absolute certainty if the sun will come up tomorrow morning.) If principle had anything to do with this line of conservative jurisprudence, we could simply assume that Rust v. Sullivan had been overruled — but it doesn’t.

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