In Pro-Life Case Involving 'Obamacare' Abortion Funding, Supreme Court Has Free Speech Concerns

An Ohio law that was used to stifle the political speech of a pro-life group appears in jeopardy Tuesday after the U.S. Supreme Court heard arguments in the case of Susan B. Anthony List vs. Driehaus.

SBA List President Marjorie Dannenfelser interviewed in front of the U.S. Supreme Court, Washington, D.C., April 22, 2014.
SBA List President Marjorie Dannenfelser interviewed in front of the U.S. Supreme Court, Washington, D.C., April 22, 2014. | (Photo: SBA List)

While Supreme Court decisions are difficult to predict based upon the justices questions during oral arguments, all nine justices "seemed very concerned" about the freedom of speech implications in the case, Casey Mattox, senior counsel for Alliance Defending Freedom, told The Christian Post Tuesday. Mattox was in the court audience.

In 2010, Susan B. Anthony List, a pro-life group, was campaigning against Democratic Ohio Congressman Steve Driehaus because he voted for the Affordable Care Act, or "Obamacare." Driehaus was one of the pro-life Democrats who negotiated a compromise with President Barack Obama over abortion funding in the bill.

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SBA List and other pro-life groups argued the compromise did not go far enough and would not ensure that no public money would be used to fund abortion. The group tried to buy a billboard that would have said, "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion."

Driehaus, though, threatened to sue SBA List and the owner of the billboard under an Ohio law that makes it a crime to knowingly publish false statements about a political candidate. Fearing the lawsuit, the billboard owner declined to let SBA List rent the space. SBA List ran the ads on radio instead. Driehaus filed a complaint with the Ohio Election Commission and after Driehaus lost his re-election, the case was dismissed.

The question before the court is whether SBA List can sue over the law because the group was never prosecuted and the billboard never went up.

One of the free speech concerns in the case, Mattox explained, is that the Ohio law, and similar laws in other states, can be used to stifle political speech even when no one is prosecuted. Sometimes just the threat of a lawsuit can restrict political speech. By the time a court hears arguments about whether a statement made about a candidate is false or not, the election is usually over. So these cases are often dismissed. But if political groups suffer as a consequence, yet do not have standing to sue after the election, the law can continue to be used to stifle political speech.

The American Civil Liberties Union filed a brief supporting SBA List in the case.

"Speech is rarely black and white — oftentimes whether a statement is true or false may be a matter of opinion," ACLU of Ohio Legal Director James Hardiman said in a statement. "If the government silences one side of the debate, the public is less informed and others may be fearful of criticizing elected officials. The answer to unpopular speech is not less, but more speech."

While some reports about the case suggest it is about whether the First Amendment protects a right to lie, SBA List argues it told the truth about abortion funding in the ACA.

"Because Congress and the White House failed to include the Stupak amendment in the ACA as it passed, the law is full of abortion funding loopholes," SBA List President Marjorie Dannenfelser said Tuesday. "Since 2009, the SBA List has joined the U.S. Conference of Catholic Bishops, other pro-life groups and members of Congress in pointing out the clandestine abortion funding problems in the Affordable Care Act. These abortion provisions blatantly contradict President Obama's 2009 promise that 'under our plan, no federal dollars will be used to fund abortion.'"

According to Mattox, Stephen Breyer, one of the more liberal members of the court, pointed out that abortion funding in the ACA is at least a disputed question. He noted that the court recently heard arguments in a case in which Hobby Lobby and Conestoga Woods Specialties sued the Obama administration, arguing that the ACA's birth control mandate required coverage of abortifacients.

"This lawsuit originated when we sought to criticize those who voted for Obamacare and the expansion of taxpayer funded abortion it entailed. We have full confidence in the veracity of our claims and hope to see our First Amendment rights affirmed by the Court. In 2014 and beyond, we must be permitted to expose the truth about Obamacare and those who support it," Dannenfelser added.

To reiterate this point, SBA List bought billboards this week, identical to the one they tried to use against Driehaus, in three states against Senators Kay Hagan (D-N.C.), Mary Landrieu (D-La.) and Mark Pryor (D-Ark.).

SBA List billboard ad against Sen. Mary Landrieu (D-La.).
SBA List billboard ad against Sen. Mary Landrieu (D-La.). | (Photo: SBA List)

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