Analysis

Federal court sticks final nail in Steve Driehaus’s attempt to silence Susan B. Anthony List

Score another legal victory for the good guys! You may recall the case of former Congressman Steve Driehaus, an Ohio Democrat who voted for ObamaCare, then got so upset that the Susan B. Anthony List pointed out that was a vote for taxpayer abortion funding that he tried to get the force of law to shut them up.

Last summer, the U.S. Supreme Court vindicated SBA’s free speech rights by unanimously striking down the Ohio “false statements” law Driehaus originally tried to claim their billboards violated, and on Friday the U.S. 6th Court of Appeals vindicated them on the merits, too.

SBA Driehaus Billboard

SBA List billboard attacking Steve Driehaus for his vote supporting ACA.

They affirmed—also unanimously—a lower court’s decision to throw out Driehaus’s good old-fashioned defamation suit on the basis that SBA didn’t lie. And the most delicious part? They cite the poor Congressman’s own initial antipathy toward ObamaCare as a sign that SBA’s interpretation of the law was credible:

Moreover, given the debate prior to passage of the PPACA as to whether it includes taxpayer funding for abortion, the gist or sting of the statements appears to have at least some truth, to be substantially true, or to be subject to differing interpretations. Driehaus vocally opposed the PPACA because of his concerns about federal funding for abortions but he then voted for it anyway despite the absence of his desired language (the Stupak-Pitts Amendment) in the final version. The Executive Order adds language, but is not part of the PPACA and does not alter the statutory text. In fact, debate continues over the meaning and effect of the PPACA.

To be clear, the 6th Circuit isn’t claiming to have confirmed that in their view, ObamaCare definitely funds abortions, but simply that SBA was operating under a perfectly plausible understanding of the law…

[W]e need not resolve this debate at a higher level of specificity. For SBA List to overcome Driehaus’s defamation claim, it is enough that the statements had some truth, were substantially true, or were subject to differing interpretations. Driehaus’s own change of position demonstrates that they were.

…and that there was no evidence of their motives being underhanded:

Even if Driehaus could prove that the PPACA does not include any taxpayer funding of abortion, thus making SBA List’s statements actually or technically false, we can find no evidence to support Driehaus’s claim that SBA List “knew” the statements were false or “entertained serious doubts as to their truth.” Rather, all of the evidence supports a finding that SBA List did then, and does now, believe emphatically that the statements are true: that the PPACA includes taxpayer funding for abortions. Moreover, given that SBA List’s mission is “ending all federal funding of abortion,” SBA List would have no cause to criticize or campaign against either the PPACA or Driehaus if it did not believe that the PPACA included taxpayer funded abortions. Rather, one would expect SBA List to support an anti-abortion candidate, particularly one who had been as outspoken as Driehaus had been in opposing federal taxpayer funding of abortion.

Of course, we need not beat around the bush: ObamaCare absolutely does fund abortion—its subsidies for abortifacients and Planned Parenthood have long been well documented, as is the fact that, according to the Government Accountability Office, the Obama Administration hasn’t been keeping its promise to keep insurance subsidies separate from abortion surcharges. The lack of transparency has been so egregious that the Family Research Council and the Charlotte Lozier Institute have joined forces to make a dedicated website for better informing the public how they can avoid abortion on the exchanges—if at all.

What has always been striking about this case is how not even the pro-abortion legal authorities involved could find an excuse to side with Driehaus. This latest unanimous decision included Clinton appointee Ronald Lee Gilman. SCOTUS Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor all put abortion above the law whenever they think they can get away with it, but drew the line at criminalizing pro-life billboards. Even the ACLU, which works to manipulate the law on behalf of abortion however it can, had to defend SBA.

Also striking: in contrast to the scores of anti-life bloggers and activists who previously screamed bloody murder about SBA supposedly seeking a “right to lie,” there hasn’t yet been a peep from the abortiosphere about the 6th Circuit’s latest decision.

Maybe the fact that they haven’t a leg to stand on is finally starting to sink in. Or maybe they just need more time than usual to figure out how to spin their latest failed attack on free speech.

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