October 21, 2010

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By Dave Andrusko

There are three very important reasons why we've written several times about Rep. Steve Driehaus' attempt to prevent a pro-life PAC from putting up four billboards criticizing his vote for ObamaCare.

First, the substance of what was said on billboards (which have not yet been posted, thanks to Driehaus's legal threats) is truthful: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion" when he voted for the Patient Protection and Affordable Care Act (PPACA) which we call ObamaCare.

NRLC Legislative Director Douglas Johnson submitted a 23-page sworn affidavit, accompanied by 16 supporting documents, which demonstrated conclusively  that Driehaus had voted for a measure that "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taxpayer funding of abortion, and that predictably will result in such funding in the future --unless the law itself is repealed, or unless the law is revised by a future Congress to include statutory language along the lines of the Stupak-Pitts Amendment."

However, a three-member panel of the Ohio Elections Commission voted 2-to-1 to find "probable cause" to believe that the group's claims violate Ohio's election laws, which allowed the matter to go forward.  SBA List's attorney, James Bopp, Jr., who is NRLC's general counsel, then asked Judge Timothy Black of the United States District Court for the Southern District of Ohio for a temporary restraining order and preliminary injunction against Rep. Driehaus and the Ohio Elections Commission.

Second, Driehaus (D-Ohio) shouldn't be allowed to use an obscure Ohio law to mangle the First Amendment First Speech rights of any organization. Interestingly the ACLU has weighed in with a 17-page brief that supports the legal position articulated by Bopp.

Bopp says unequivocally that the SBA List claims are truthful, but that "Our principle argument against the statute is that the government is empowering itself to decide the truth or falsity of information that's related to elections." He told the Washington Independent that "The way they've formulated the law is vague and not just related to express advocacy but also issue advocacy, and that's unconstitutional."

In its brief the ACLU says the law "is vague and overbroad, and it cannot withstand constitutional scrutiny. The statute fails for the same reasons that the Sedition Act has been condemned by history. The people have an absolute right to criticize their public officials, the government should not be the arbiter of true or false speech and, in any event, the best answer for bad speech is more speech."

The ACLU added, "The entirety of the statute criminalizes what is, in essence, core political speech. The statute prohibits a wide variety of speech, in an equally wide variety of contests and media. The only criteria to fall within the prohibition: that someone allege the speech is 'false.' It is not the government's place to pass judgment on what political speech is acceptable, and certainly not in the context of criticizing a public official."

Third, the pro-Democratic group Democrats for Life of America is misrepresenting what Driehaus's voted for when he voted for ObamaCare and have moved on from that faulty premise to harshly criticizing SBA List and National Right to Life. Suffice it to say the following:

First, as mentioned at the beginning, there is simply no denying that ObamaCare is riddled with provisions that promote abortion and (as NRLC's affidavit  makes clear) that there are no directives in President Obama's Executive 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."

Second, as we discussed on Tuesday, Driehaus and ten other members of the House had introduced a resolution (H. Con. Res. 254) on March 19 that, if enacted, would have removed pro-abortion provisions from the Senate-passed health care bill (H.R. 3590), and added bill-wide, permanent prohibitions on any provision of the bill being used to authorize pro-abortion subsidies or administrative decrees.

But House Speaker Nancy Pelosi never allowed a vote. Unfortunately, Driehaus was among the House members who then voted to pass H.R. 3590, on March 21, 2010, even without the pro-life protections proposed in H. Con Res. 254, and the bill was enacted into law.

But if Driehaus had asked for an amendment to rid the bill of abortion and the amendment was never allowed to be voted on, how could Driehaus claim that H.R. 3590 did not contain federal subsidies for abortion? If that's what he really thought all along, why did he join others to introduce the proposed amendment to remove those provisions?

Third, and finally, Democrats for Life of America worked in the early months of the year to persuade Democrats to oppose the bill because of its pro-abortion components. As noted above, nothing changed, so it disingenuous in the extreme to say there had never been a problem, as this organization has done vehemently.

There had been major problems--and they were never remedied.

Please send your comments on Today's News & Views and National Right to Life News Today to daveandrusko@gmail.com. If you like, join those who are following me on Twitter at http://twitter.com/daveha.

Part Three
Part Four
Part One