Former Ohio Democratic Representative Steve Driehaus' lawsuit
against the Susan B. Anthony list will go forward, after a judge held on
Aug. 1 that a statement about his alleged vote “for taxpayer-funded
abortion” was not protected speech.
Susan B. Anthony List Executive Director Emily Buchanan said U.S.
District Court Judge Timothy Black mistakenly applied “a narrow reading”
of the 2010 Affordable Care Act, in reaching his conclusion.
“The
judge's position in this case ignores the entire policy debate that took
place during health care reform,” Buchanan told CNA on Aug. 2.
“From the very beginning,” she recalled, “the Susan B. Anthony List
has said that without the original Stupak-Pitts language, the bill would
lead to taxpayer funding of abortion.”
The list has found itself in
legal trouble for declaring in advertisements that Driehaus, a
now-defeated pro-life Democrat, “voted for taxpayer-funded abortion” by
voting for the final version of the Affordable Care Act.
Judge Black rejected the Susan B. Anthony List's contention that the
phrase “taxpayer-funded abortion” was an ambiguous term that could have
different possible meanings.
“The common meaning that reasonable readers
would ascribe to that phrase,” Black held, is that “the law in question
contains a provision that appropriates money derived from tax revenues
to pay for abortion.”
The judge, finding no such provision in the law, held that Driehaus
could continue to seek damages from the pro-life group.
“Either the Act
includes language indicating that it will fund abortion or it does not,”
Black wrote, explaining that only such language would count as a
provision for “taxpayer-funded abortion” in his view.
“Whether it is possible, under contingent circumstances, that at some
point in the future – upon the execution of X, Y, and Z – that the
(Affordable Care Act) would not prevent taxpayer funded abortion is
entirely different,” he stated.
“The express language of the (Act) does
not provide for taxpayer-funded abortion.”
Buchanan disagreed, and said Black's definition of what constitutes
“taxpayer funding” failed to take account of the prolonged public debate
over what the health care law would fund by indirect means.
“Abortion was implicitly included in the bill, because it was not
explicitly excluded,” she explained.
“To say that in order for something
to be funded, it has to be explicitly mentioned in the bill, is
completely ignoring the policy reality that everyone was reacting to at
the time.”
SBA List says that Driehaus himself originally opposed the bill, for
failing to exclude taxpayer coverage of elective abortion through health
care exchanges and community health centers.
They contend that Driehaus
later changed his position on the bill – even when restrictions he had
previously insisted on were not included – and then sued the list for
saying he voted for publicly-funded abortion.
Kristen Day, executive director of Democrats for Life of America,
thinks Driehaus was right to challenge this characterization of his
vote. She claims that Driehaus' vote was not a betrayal of his pro-life
principles, since he joined with other pro-life Democrats to obtain a
presidential executive order and other regulations restricting funding
for the procedure.
In an Aug. 2 interview with CNA, Day maintained that “there is no
taxpayer funding of abortion” in high-risk pools or health care
exchanges under the Affordable Care Act.
That funding is “explicitly not
there,” because of “the executive order plus the regulations” issued by
the Department of Health and Human Services.
She also believes community health centers “do not want to be
involved in abortion,” even though she acknowledged that some
regulations on this subject could have “been better.” Day said that
NARAL and Planned Parenthood did court these health centers, “trying to
get them to do abortion, but (the centers) have made it very clear that
they are not abortion providers.”
Day added that the SBA List was wrong to insist that Driehaus'
alleged “vote for taxpayer-funded abortion” could have multiple meanings
other than the single “common meaning” Judge Black used in reaching his
decision.
“Everybody in the pro-life movement knows what 'taxpayer funding of
abortion' means,” she said. “To claim that you don't, is not a good
argument.”
But Emily Buchanan said her group wasn't feigning ignorance about
what their words meant.
She explained the Susan B. Anthony List used the
words to express their understanding of the law in question, gained
through an analysis of its contents released by the Congressional
Research Service.
Buchanan cited a July 2010 letter to Health and Human Services
Secretary Kathleen Sebelius from 13 U.S. Senators who concluded, drawing
on that analysis, that “neither the restrictions in the Patient
Protection and Affordable Care Act, Presidential Executive Order 13535
nor the recently released HHS contract materials actually prohibit a
state high-risk pool from covering elective abortions.”
In the end, Judge Black's order rested only partly on his idea of
what “taxpayer-funded abortion” could mean in a political ad. It also
arose from his judgment that SBA List was making a statement of fact,
and not – as the group claimed for itself – merely a statement of
opinion about Driehaus' vote.
“Ohio courts have recognized,” he wrote,” that, when the allegedly
defamatory statements are accompanied by explicit language professing
its truth, reasonable readings normally view the statement as conveying
information of a factual nature.”
He rejected the list's attempt to defend its claims as unverifiable
statements of opinion, citing a series of statements by the group
indicating it was a matter of verifiable fact: “It is a fact that Steve
Driehaus has voted for a bill that includes taxpayer funding of
abortion.”
“Help us spread the truth about his vote.” “Please help us
defend ourselves and redouble our efforts to share the truth about Rep.
Driehaus' vote.”
Kristen Day said it was disingenuous for the SBA List to present its
claims in public as straightforward matters of fact, then attempt to
defend them in court as matters of opinion that could not be proven or
disproven.
She added that the list made a mistake by presenting its claims to the public as facts, and to the court as mere opinions.
“They keep repeating 'the truth' and 'the facts,' over and over
again,” Day said. “They're not saying, 'In our opinion, this bill could
fund abortion' – which would probably be acceptable, and this case
wouldn't be where we are today.”
Buchanan confirmed that her organization's legal defense involved
setting aside the objective truth or falsehood of the statement about
Driehaus, in order to defend it instead as a protected opinion.
“Our lawyers,” Buchanan said, “are saying that even if there is a
question as to whether or not it is true, people and organizations in
the public sphere are allowed to have an opinion – and that is protected
speech.”