SBA List v. Driehaus: The lawsuit that led the ACLU to side with a pro-life group

posted at 6:25 pm on October 18, 2011 by Tina Korbe

Last week, the House of Representatives passed the Protect Life Act by a vote of 251 to 172. (Actually, Nancy Pelosi would say the House voted to let “women die on the floor,” but that’s just Pelosi for you.) The bi-partisan bill — co-sponsored by Rep. Dan Lipinski (D-Ill.) and Rep. Joe Pitts (R-Penn.) — ensures that no taxpayer dollars appropriated under Obamacare will go toward abortion funding.

Interesting that 251 members of the House thought the bill necessary at all. After all, in the midst of the heated health care debate, the president issued a non-binding executive order that applies anti-abortion-funding language to his signature Affordable Care Act. Technically, that’s enough to prevent taxpayer funding of abortions, yes?

No – and the president has always known that. As the ever-stalwart Rep. Jim Jordan (R-Ohio) explained last week, “Despite liberal claims, Obamacare does not prohibit taxpayer funds from being used to take unborn human life.  President Obama’s Executive Order can be revoked at any time by this or another occupant of the White House.”

The EO just provided a thin cover for pro-life Democrats who initially demanded that PPACA include language explicitly banning federal abortion funding — but then, even when no such language was included in the bill, caved and voted for Obamacare anyway.

Pro-life voters never fell for it — and, in the dramatic reversal of the 2010 elections, 15 of 20 supposedly pro-life Democratic incumbents who cast a “yes” vote for Obamacare lost their seats. (Incidentally, Lipinski — the lone pro-life D who voted against PPACA — won his reelection handily.)

Steve Driehaus of Ohio was one of the 15 who failed to recapture his seat. But, unlike his 14 fellow losers, he didn’t take the loss lying down. Rather than confront reality, he promptly sued the Susan B. Anthony List, a pro-life group that, during the 2010 campaigns, repeatedly pointed out Driehaus’ hypocritical vote for Obamacare.

Driehaus alleged the SBA List cost him his livelihood by defaming him. He invoked the Ohio False Statement Law, which allows state officials to impose stiff fines on anyone who has issued false criticism of a political candidate. In this case, the “false” criticism in question was SBA List’s campaign to educate voters about Driehaus’ pro-abortion-funding vote for Obamacare.

The SBA List responded by filing a challenge to the Ohio False Statement Law, suggesting it chills speech. Refreshingly, they were joined in this opinion by the ACLU of Ohio, whose lawyers closely echoed the sentiments expressed by SBA List president Marjorie Dannenfelser.

Here’s Dannenfelser in a statement: “No politician, bureaucracy, or court should have the power to silence the right of citizens to criticize elected officials. Ohio’s False Statement Law allows candidates like Steve Driehaus to silence any speech critical of them by simply filing a complaint with the Ohio Elections Commission. Then, when the election is over, the candidates can dismiss their complaint so the law cannot be reviewed by the federal courts.  An unelected commission should not have the ability to decide what is true and false speech, nor tell us what speech we can and cannot hear.”

And here’s the ACLU of Ohio: “The people have an absolute right to criticize their public officials, the government should not be the arbiter of true or false speech and the best answer for bad speech is more speech.”

So far, though, not even the tag team of SBA List and the ACLU have been able to put an end to Driehaus’ case. On August 1 of this year, a federal judge ruled the case should go to trial — and dismissed SBA List’s challenge to the Ohio False Statement Law.

With the House passage of the Protect Life Act, Driehaus’ argument grows ever thinner. Does he want to say his former colleagues in the House have defamed him, as well? For, with their votes, they’re saying essentially what SBA List has said the entire time: Without explicit legislative language banning Obamacare funds from going toward abortions, PPACA does, in fact, provide for taxpayer-funded abortions.

Driehaus should drop the case — but, as he won’t, we’ll have to hope SBA List wins its appeal in the Sixth Circuit Court of Ohio. The case has implications for free speech everywhere.


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