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Posted on Apr 22, 2014 |

Supreme Court to Hear SBA List/Driehaus Case Today

Supreme Court to Hear SBA List/Driehaus Case Today

The Supreme Court building; image source unknown.

The United States Supreme Court will hear oral arguments today for a case involving Cincinnati native and former Senator Steve Driehaus and the Susan B. Anthony List. Image source unknown; no ownership implied.

The United States Supreme Court will hear oral arguments for a case involving Ohio election law, a national pro-life political advocacy group, and former Congessman Steve Driehaus today.


In 2010, the Washington-based Susan B. Anthony List (SBA List), which identifies and advocates for pro-life political candidates, tried to put up billboards calling lifelong Cincinnati resident Steve Driehaus a liar. Billboard companies refused to erect the boards after Driehaus said he would sue under an Ohio law that prohibits false statements in political ads.


False statement?


Driehaus, who had run for office as a pro-life, fiscally conservative “Blue Dog Democrat” and was running for reelection, was one of 13 pro-life Democrats who voted for the Affordable Care Act after President Obama signed an executive order prohibiting public funds from being spent on abortions.


The SBA List, along with nearly all pro-life groups, considered that vote to be a broken promise, because an executive order can be revoked at any time and the law itself does not prohibit public funding for abortion. Although the group was not able to put up billboards in Ohio, he SBA List called Driehaus and several other self-proclaimed pro-life Democrats “sellouts” in a bus and print campaign.


In a rollercoaster ride of suits and countersuits, Driehaus (who lost the election to longtime Republican legislator Steve Chabot) sued the SBA List for defamation and loss of livelihood, while the SBA List sued Ohio for restriction of free speech.


Driehaus lost his case. A judge sympathetic to Driehaus nevertheless ruled ruled both that the SBA List’s case was “substantially true,” which means that it could be considered true by reasonable people, and that even if it had not been substantially true, it is the kind of statement that is permitted in a political campaign.


Driehaus, who now lives in Africa with his family and works for the Peace Corps, has appealed. That appeal is still pending.


Free speech


The SBA List lost its case agains the State of Ohio, as well as its appeal, for “lack of standing” (meeting the requirements to be able to sue). Both courts found that, because the Ohio Elections Commission had not sued the SBA List, the group had not been harmed and thus could not sue.


However the SBA List and the Cincinnati anti-tax group COAST together petitioned the Supreme Court, arguing that the threat of a suit — whether or not one is made — prevents Ohio’s citizens from criticizing their elected officials. The threat of a suit did harm the SBA List, the group says, and thus should give it standing.


Moreover, the group argues, Ohio’s law means that the state determines what is true and what is false in a political statement, giving it too much power.


The ACLU filed an amicus (“friend of the court”) brief on the SBA List’s behalf, saying, “The people have an absolute right to criticize their public officials, the government should not be the arbiter of true or false speech and, in any event, the best answer for bad speech is more speech.” A total of 21 amicus briefs — arguments in support of a case, usually different arguments from the one being used in court — were filed on behalf of the SBA List. None were filed in support of Cong. Driehaus.


Was it a lie?


Steve Driehaus continues to assert that he did not lie or “sell out,” and that the Affordable Care Act does not fund abortions.


The SBA List and other pro-life groups say that the Affordable Care Act does pay for abortions with public funds and that Driehaus and other politicians who voted for it knew that it would.


“This lawsuit originated with the now ongoing problem of taxpayer funding of abortion in Obamacare,” Marjorie Dannenfelser, president of the SBA list, said when the Supreme Court agreed to hear the case. “To this very day, Americans are still fighting the expansion of taxpayer funding of abortion brought about by the overhaul.”


Driehaus continues to maintain the he did not lie or “sell out” when voting for the Affordable Care Act.


However, studies by the Charlotte Lozier Institute (CLI) and the Kaiser Foundation both found that the taxpayer-funded abortion will increase under the ACA. The CLI estimates that 111,500 additional abortions per year will be subsidized in full or in part by public funds. (See below for their findings.)


What the Court will decide


The Supreme Court, however, will not decide whether or not the Affordable Care Act funds abortions, whether or not Cong. Driehaus lied, whether or not the statement that he lied is a reasonable inference or, even if not a reasonable inference, is constitutionally protected free speech.


The Supreme Court will decide only whether the SBA List and COAST have standing to sue. If not, their suit will end. If so, they will be free to sue — as Cong. Driehaus continues to do.


Ways the Charlotte Lozier Institute  says the Affordable Care Act funds abortions


  1. Medicaid Expansion. The ACA encourages states to expand Medicaid programs, which pay for medical services for the poor with tax money. Many states allow funds to be used to pay for abortions in some circumstances. Expanding Medicaid without prohibiting tax money being used for abortions means more public money paying for abortions.

  2. Subsidies. The ACA gives tax-paid subsidies to low-income people and families to help them buy private insurance. As many private insurance plans include abortion coverage, not prohibiting that tax money can be used for abortions means subsidy money will pay for abortions.

  3. Abortion surcharge. The ACA bypasses the longstanding Hyde Amendment, which has to be passed each year and precludes public money from being used for abortions, by charging a separate monthly fee for abortion coverage. In theory, this fee comes from the policy holder’s contributions, and not from public subsidies. However, it is not included in an itemized list of fees and its existence is disclosed only once, in the fine print, when people enroll.

  4. Lack of pro-life plans. The HHS requires that only one multi-state plan not cover abortion.

  5. Contraception Mandate. The mandate requiring nearly all employer-paid healthcare plans to cover contraceptives drugs and services and elective sterilizations includes “Plan B” pills (which may cause early stage abortions) and IUDs (which work by irritate the uterus, so that it will not allow fertilized eggs to implant and grow — causing abortions for all pregnancies).

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