Last night on the Chris Mathews’ Hardball a discussion arose with Senator Orrin hatch about the possibility that President Obama’s health care program will reject the Hyde Amendment which prohibits spending federal funds on abortions. It’s okay to spend federal funds on childbirth, but not abortion. Where’s the equal protection here? Two pregnant woman exercise their reproductive rights, one by choosing to terminate the pregnancy, the other by not. How can any reasonably conception of equality sanction such treatment? Lindsay Graham chimed in during the hearing by bristling at the notion that his tax dollars should be used to fund abortion. But why should my tax dollars be used to fund childbirth? Perhaps I’m worried about overpopulation or simply have libertarian tendencies against governmental support for such private conduct? In general the government can favor one policy over the other, but does equality sanction permitting such partiality when reproductive rights are concerned? The Court has said yes. But this is not a question of case law. Rather, it’s a question of Republican consistency. Can two pregnant women in relevantly similar circumstances be treated in such a dissimilar manner? How the Republicans’ conception of equal protection can sanction such distinction? Or better yet how can the rule of law permit such a political choice?
The Republicans on the Senate Judiciary Committee are trumpeting the rule of law, equal protection under the law, and treating litigants in a similar manner. Yet, regarding the grotesque Hyde Amendment suddenly disparate treatment is permissible. The Republicans need to explain why the causes they favor need not be subject to the rule of law, but Democratic causes, well that’s another matter.
Hopefully, the Republicans member of the Senate Judiciary Committee will think twice before inconsistently throwing around “equal protection” and “rule of law” when these terms apply to Judge Sonia Sotomayor’s judicial decisions.