The unanimous U.S. Supreme Court decision in Susan B. Anthony List v. Driehaus is an important victory for free speech. The court held that SBA List could bring a First Amendment challenge to an Ohio law that prohibits making “false statements” in an election campaign—a law that Rep. Steve Driehaus used to prevent SBA List from speaking out against his vote for Obamacare as authorizing taxpayer funds for abortion.
Predictably, leftwing commentators claim that the unanimous decision is about whether the pro-life group has a “right to lie” about Obamacare resulting in taxpayer funding of abortion. Other “mainstream” sources feed that narrative with the implication that “experts” say it isn’t true.
Some just pretend that it’s too complicated—requiring “strong coffee” (perhaps “above their pay grade”?) to discern whether Obamacare might actually facilitate taxpayer funding of abortion, thus claiming neutrality on that rather fundamental question. The result is that news coverage of a procedural question that is interesting to constitutional attorneys but not normal humans becomes a platform for media implications that SBA List “lied” about abortion and Obamacare.
The problem with the narrative is that SBA List told the truth: Obamacare uses taxpayer funding for abortion.
Exhibit A is the Bracy family in Connecticut, a family forced by Obamacare to pay an abortion surcharge used solely for others’ elective surgical abortions. The Bracys are required to pay this surcharge in order to enroll in any plan on the Connecticut exchange and avoid substantial fines under the individual mandate. They aren’t alone. Every Connecticut resident must pay this abortion surcharge to enroll in an exchange plan. And citizens in several other states, including Vermont, Rhode Island, New Jersey, Iowa, Washington, and Hawaii may face the same problem.
Others have also explained thoroughly (even in video) the other ways in which Obamacare funds abortion. The brief in support of SBA List that Alliance Defending Freedom filed along with Bioethics Defense Fund and Life Legal Defense Foundation in the portion of SBA List’s case still in the 6th Circuit explains how Obamacare permits taxpayer funds to be used to pay for abortions and abortion-inducing drugs through subsidies for insurance premiums, high-risk pools, community health center funds, and even expanded Medicaid funding for some abortions.
And the claimed restrictions on taxpayer funding of abortion largely hinge on annual reauthorization of the Hyde Amendment, which many of those who claim Obamacare does not fund abortions are also working to eliminate.
In short, this was not a case about SBA List’s “right to lie” because SBA List’s statement that Obamacare permits abortion funding with taxpayer dollars is demonstrably and unequivocally true. The question—which should concern every American, no matter their political views—is whether the Constitution permits an incumbent politician to use the machinery of government to censor true but damaging statements from citizens about his voting record. If this was a debate about anything other than abortion (or more specifically about claims being made by a pro-life group), I suspect there would be near unanimity that the answer should be “no.”
But if journalists are looking for examples of falsehoods told in abortion debates in electoral campaigns, there are some excellent examples they might report on:
- A notable politician and a special interest group supporting his candidacy once contended that competing politicians who would cut funding for Planned Parenthood would be eliminating mammograms. The claim was often repeated and just about as often went unchecked by reporters. Empirically speaking, it was hogwash. The federal government confirms that not a single Planned Parenthood entity in the country performs mammograms.
- Seven years ago, the U.S. Supreme Court held that the Partial-Birth Abortion Ban Act was constitutional despite its lack of a health exception—an exception that Planned Parenthood and other abortion advocates said was necessary to protect women’s health in roughly 2,200 instances each year. Abortion advocates argued that, by signing the ban, President George W. Bush was harming these women’s health. The Supreme Court called their bluff, inviting abortionists to file a lawsuit seeking an exemption in any specific case where partial-birth abortion was necessary to protect the mother’s health. Justice Ruth Bader Ginsburg so believed Planned Parenthood’s claims that she predicted a wave of these lawsuits. Seven years later, not one has been filed, and there is no known instance of the lack of partial-birth abortion affecting a woman’s health. What does that say about the veracity of their claims?
Has this experience with evidence chastened the abortion advocates? No. They make the same claims today as states enact laws prohibiting late-term abortions where the unborn child can feel pain. Many reporters play along and warn of this supposed risk to women’s health. No one seems to notice that the same abortion groups that release their legal hounds on any law that touches on abortion have consciously decided to let almost all of these laws prohibiting abortion after 20 weeks remain on the books unchallenged, including the Texas law that was at the center of last summer’s firestorm. There are no stories of women being harmed.
The point is not that the government should punish these abortion advocates or prohibit them from speaking. The First Amendment forbids government from acting as the arbiter of truth on matters of public debate. And that’s exactly the point. SBA List is powerless to vindicate its constitutionally protected freedoms and ensure that the marketplace for debate is free if incumbent politicians can prevent them or anyone else from exposing the truth and then avoid adjudication of this egregious First Amendment violation.
SBA List’s victory is one for Americans of all political leanings. But if some refuse to celebrate that win due to their support for abortion, they should know that it’s Planned Parenthood, not SBA List, that is exercising a “right to lie.”
Casey Mattox (@caseymattoxadf) is senior counsel with Alliance Defending Freedom, which has filed friend-of-the-court briefs in Susan B. Anthony List v. Driehaus at both the U.S. Supreme Court and the U.S. Court of Appeals for the 6th Circuit.