ObamaCare and the truth of abortion funding

Dorinda Bordlee: SBA List challenges an Ohio statute criminalizing political speech . . .

Dorinda C. Bordlee

The U.S. Supreme Court is reviewing a challenge that involves abortion, lies and ObamaCare. The case, Susan B. Anthony v. Driehaus, involves a free speech challenge to an Ohio law that criminalizes “false statements” about a candidate’s voting record.

The case raises important questions about the rights of citizens and advocacy groups to criticize elected officials’ votes without fearing criminal prosecution by partisans who claim that truth is false.

“Congressman Steve Driehaus voted for taxpayer funding of abortion when he cast a vote for the health care reform bill.” Those words, communicated by the Susan B. Anthony List to Ohio voters in the midst of the 2010 mid-term elections, are true. Yet the Susan B. Anthony List (SBA List), a pro-life advocacy group under the leadership of Legate Marjorie Dannenfelser, was soon haled before Ohio’s elections commission, which — by a 2-1 vote along partisan lines — found “probable cause” to believe that such speech violated Ohio’s false-statement law. Another group wanted to communicate the same message, but refrained from doing so for fear of criminal prosecution, demonstrating how the Ohio law chills political speech.

The election complaint was brought by now-former Rep. Driehaus, a “Blue Dog Democrat” who was a member of the infamous Stupak 10. Like many in that group, Driehaus abandoned his resolve to vote against any health care bill that did not include a Hyde-like amendment expressly prohibiting abortion funding across the entire act. As you may recall, then-Speaker Nancy Pelosi refused to allow a vote on the Stupak Amendment that would have done just that.

Despite the lack of any abortion-limiting language in the bill, Driehaus justified his “yes” vote on ObamaCare on the hollow executive order provided as cover by the President. Planned Parenthood’s president even called the order “a symbolic gesture.” Driehaus’ vote cost him his seat in Congress, but it hasn’t stopped litigation over both the truthfulness of the claim and the constitutionality of a state law that chills the speech of citizens who dare to say that the Emperor has no clothes.

This spring, the Supreme Court will address the question of whether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws which punish “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree.

SBA List attorneys argue that the Sixth Circuit holding flies in the face of the Supreme Court’s case law and undermines the most basic First Amendment values. In support, Bioethics Defense Fund filed a key amicus brief to aid the Court in answering the underlying question that started the controversy: namely, whether the Patient Protection and Affordable Care Act (ACA) authorizes taxpayer funding of abortion.

The answer is “yes.” Yet the federal district court concluded otherwise, reasoning that “the express language of the ACA does not provide for tax-payer funded abortion. That is a fact and it is clear on its face.” But, as our brief explains, this conclusion is superficial, and therefore erroneous. The court’s conclusion ignores both the jurisprudential context in which the ACA was enacted (showing that courts compel abortion coverage unless expressly excluded), and it ignores the Act’s drafting history that shows the repeated rejection and thwarting of House-adopted abortion-limiting language on the ACA’s billions of dollars of independent appropriations.

Our brief explains that the final ACA did not — and still does not — contain an amendment limiting abortion funding across the entire Act. In fact, the President issued a veto threat of a 2011 House-passed bill that would have added that language. This has resulted in concrete examples of how implementation has authorized funding of elective abortion in federal programs, as well as the use of taxpayer dollars to subsidize exchange plans that cover surgical abortion and the abortion-inducing drugs required by the HHS mandate.

In short, SBA List seeks to challenge an Ohio statute that criminalizes core political speech that Bioethics Defense Fund demonstrates to be truthful. Yet the Sixth Circuit decision has concluded that the challenge is not ripe given that the election is over, ignoring the fact that their political speech has been erroneously labeled false and concretely constrained by an elections commission that has the statutory power to act as a truth-squad. If free speech is to be protected, the Supreme Court must reverse the decision and allow the statute’s constitutionality to be challenged.

DORINDA C. BORDLEE is co-founder of Bioethics Defense Fund, a non-profit legal organization that advocates for the dignity of human life through litigation, legislation and public education.