The Supreme Court will hear arguments this week in Susan B. Anthony List v. Driehaus. Media reports describe the case as testing whether the pro-life group has a “right to lie” about Representative Driehaus’s vote for Obamacare resulting in taxpayer funding of abortion. Addressing the Ohio electoral commission’s power to prevent SBA List’s speech in an election campaign, many of these commentators simply assume the falsehood of SBA List’s argument.
Others 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 coverage of a relatively dry standing question becomes a platform for media implications that SBA List “lied” about Obamacare funding abortion.
The problem with the narrative is that SBA List told the truth.
Others have explained that point thoroughly (even in video!) so I’ll just recap. The brief in support of SBA List we filed 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. The Bioethics Defense Fund made these same points to the Supreme Court.
In short, this is 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 is whether the Constitution permits an incumbent politician to use the machinery of government to prevent 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 – often unchecked by reporters. Empirically speaking, it was hogwash as the federal government confirms that not a single Planned Parenthood entity in the country performs mammograms.
- Seven years ago the 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 PBA Ban, President 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 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. Yet, 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. And yet there are no stories of women being harmed.
The point is not that abortion advocates making these false claims should be punished by the government or prohibited from speaking. The First Amendment forbids government from acting as the arbiter of truth on matters of public debate. And SBA List is powerless to vindicate its constitutional rights and ensure that the marketplace for debate is free if incumbent politicians can prevent them from exposing the truth and then avoid adjudication of this egregious First Amendment violation.
That’s why SBA List should win and its victory will be one for Americans of all political leanings.
But let’s be clear. It’s Planned Parenthood, not SBA-List that is exercising a “right to lie.”
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