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.”