Congressman Driehaus uses criminal complaint in attempt to gag critics;
NRLC refutes his claims with sworn affidavit and documents

WASHINGTON -- The National Right to Life Committee (NRLC) has produced a sworn affidavit, submitted today to the Ohio Elections Commission, demonstrating that the Obama health care law does in fact provide federal subsidies for elective abortion.

NRLC's statement was filed at the request of attorneys for the Susan B. Anthony List ("SBA List"), a pro-life political action committee. On billboards intended to be posted in the Cincinnati area, and in other public utterances, officials of the SBA List have asserted that Congressman Steve Driehaus (D-Ohio, First District) "voted for taxpayer-funded abortion" when he voted to enact the Patient Protection and Affordable Care Act (PPACA), the Obama health care law.

In reaction to the SBA List's statements, Rep. Driehaus on October 5 filed a complaint with the Ohio Elections Commission, utilizing a peculiar Ohio statute under which it is a violation to make "a false statement concerning the voting record of a candidate or public official," or to "post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it is false or not . . ." [Ohio Revised Code 3517.21(B)(9) and (B)(10)] If the Commission votes that the disputed SBA List's statements were "false," the statute gives the Commission the power to either issue a public reprimand or to refer the matter to a county prosecutor with a recommendation for criminal prosecution. A criminal conviction under the statute is punishable by up to six months in jail and/or fine of $5,000.

[Update: On October 14, 2010, a three-member panel of the Ohio Elections Commission voted 2-1 to send the Driehaus complaint to the full seven-member commission for a hearing, which is scheduled for October 28. However, on October 18, attorneys representing the Susan B. Anthony List asked a federal judge in Cincinnati to declare unconstitutional, under the First Amendment, the portions of the Ohio law that Driehaus is employing "as a tool in a public official's arsenal to strategically silence his critics." To read more about this federal case, click here.]

In his complaint, Driehaus asserted, "Congressman Driehaus and like-minded pro-life Democratic members of the House of Representatives were successful in securing language in both the PPACA and Executive Order 13535, ensuring that the PPACA would not permit or be construed as permitting taxpayer-funded abortions. . . . Despite the fact that the PPACA does not permit and in fact prohibits taxpayer-funded abortions, the SBA List and other groups opposed to Congressman Driehaus's reelection have published and disseminated the false statement about Congressman Driehaus . . ."

At the request of the SBA List, NRLC submitted a 23-page affidavit, prepared and sworn to by veteran Federal Legislative Director Douglas Johnson, consisting of 65 numbered paragraphs, refuting Driehaus's claims. Paragraph 15 explains that the law that Driehaus voted for "contained multiple provisions that do in fact authorize (i.e., create legal authority for) taxpayer funding of abortion, and that predictably will result in such funding in the future -- unless the law itself is repealed, or unless the law is revised by a future Congress to include statutory language along the lines of the Stupak-Pitts Amendment." Paragraph 32 explains, "Some of these provisions are entirely untouched by any limitation on abortion in existing law or in the PCACA itself, and others are subject only to limitations that are temporary or contingent."

The affidavit provides detailed discussion of four specific programs under which abortion coverage is authorized by the PPACA -- the Pre-existing Condition Insurance Program (PCIP), the program of federal tax-based subsidies to purchase private health plans, the appropriation of $7 billion in new funding for Community Health Centers, and the section creating "multi-state" health plans to be administered by the federal Office of Personnel Management. The affidavit notes that these examples are not exhaustive.

In paragraphs 56-62, Johnson dismisses Driehaus's reliance on Executive Order 13535 as "highly misleading," noting, "There are no directives in the Order that apply to all, or even to most, of the provisions of the PPACA. The operative provisions that are actually contained in the Order are extremely narrow and highly qualified. . . Executive Order 13535 has the hallmarks of a primarily political document." Johnson also notes that the president of the Planned Parenthood Federation of America characterized the Executive Order as "a symbolic gesture."

NRLC attached 16 documents to the affidavit as exhibits, including a legal analysis of the abortion-related components of the law issued by the Office of General Counsel of the U.S. Conference of Catholic Bishops; documentation on state PCIP plans for Pennsylvania and New Mexico that were initially approved by DHHS although they covered elective abortions; a Congressional Research Service report that confirmed that nothing in the PPACA or the Executive Order prevented the use of PPACA-authorized PCIP funds from being used for abortions; and the texts of the Stupak-Pitts and Nelson-Hatch Amendments which were proposed to prevent any part of the legislation from subsidizing abortion -- but which were opposed by President Obama and congressional Democratic leaders, and which were not part of the law as enacted.

Both the NRLC affidavit and the collection of 16 documents can be viewed at or downloaded from the NRLC website at www.nrlc.org/AHC/DvSBA/

Beyond the contents of the affidavit, NRLC's Johnson offered these additional comments on the subject: "It is outrageous the Ohio law allows an incumbent politician, like Steve Driehaus, to haul citizens before an appointed government tribunal, under threat of potential criminal prosecution, for expressing an opinion about the public policy implications of a vote that he cast in Congress. This is an incumbent-protection law that is intended to intimidate critics, reminiscent of the methods used to chill criticism in certain countries run by presidents-for-life. In America, anyone should be free to express their views on the effects of the bills that Mr. Driehaus voted for, without fear of criminal prosecution or fines. Mr. Driehaus enjoys full freedom to dispute his critics, with the voters as the ultimate judges about whose claims are most credible. Mr. Driehaus apparently does not trust the voters to see things his way, and so he attempts to utilize criminal-law strong-arm tactics in a pathetic effort to intimidate and gag his critics."

As far as we know, Driehaus is the only incumbent, so far this year, to employ a criminal statute against his pro-life critics, but a number of other House Democrats are trying hard to suppress pro-life groups' criticism of their votes in favor of the health care law. For example, recently attorneys for Rep. Kathleen Dahlkemper (D-Pa., Third District) sent a letter to local radio stations suggesting that a radio ad charging that she voted for "taxpayer-funded abortions" was "slanderous."

The National Right to Life Committee (NRLC) is the nation’s largest pro-life organization, with affiliates in all 50 states and over 3,000 local chapters nationwide.