Life Advocacy Briefing

Victory for Political Speech

IT APPEARS THE PRO-LIFE SUSAN B. ANTHONY LIST P.A.C. WILL LIVE to fight another day. The US Supreme Court last Monday announced a unanimous ruling granting SBA List standing in their lawsuit challenging an Ohio statute which curbs free speech rights.

Lower courts had ruled the group had no standing, declaring the SBA List faced no current threat of prosecution. But in a decision authored by Justice Clarence Thomas on behalf of the full Court, the Supreme Court “found,” reports Life Legal Defense Foundation in a news release applauding the high court ruling, “that the pro-life group had demonstrated a credible threat of enforcement of the law against them,” thus giving them standing to challenge the state law.

The ruling did not itself overturn that state law, but SBA’s now-secured right to litigate against the Ohio law’s unconstitutionality in federal court is a critical step forward for the key pro-life political group.

The ruling “reversed the 6th Circuit Court of Appeals’ ruling,” notes Ben Johnson, reporting for LifeSiteNews.com, “that the Ohio law could not be challenged.” The high court, writes Mr. Johnson, “remanded the case for further hearings.”

The Ohio statute prohibits supposedly “false statements” about campaigning politicians and grants authority to state bureaucrats to determine the truthfulness of political statements.

Former Ohio Congressman Steve Driehaus used the statute to object to SBA’s claim in prepared campaign materials that he had voted for taxpayer-funded abortion with his vote favoring ObamaCare and to chill SBA’s involvement in educating the public about his record. The Democrat disputed SBA’s characterization of his vote while losing the 2010 election after just one term and sought to use the unusual Ohio statute to punish SBA, and that, noted the high court, is a problem.

Justice Thomas said the law “could allow frivolous complaints,” reports Mr. Johnson, “that would badger citizens into silence. He noted that the state statute allows ‘any person’ – including the candidate or his campaign officials – to file a complaint with state authorities.  ‘There is a real risk of complaints from … political opponents,’ he wrote. ‘And petitioners, who intend to criticize candidates for political office, are easy targets.’”

Further, the Court via Justice Thomas noted, reports LifeSiteNews, “‘The target of a complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days before an election.’”

Indeed, that appears, in the SBA case, to have happened. SBA attorney Mike Carvin, reports Mr. Johnson, “told LifeSiteNews [last Monday] morning that ‘Ohio’s blatantly unconstitutional scheme … hindered our political speech in 2010 and 2012’ and that he will move ‘very expeditiously’ to have the 6th Circuit Court hear the case. He hopes for a ruling before the November election,” writes Mr. Johnson. And he added, “‘Everybody’s aware of the First Amendment vulnerability of this law.’”

Though the Court’s ruling Monday was limited to the question of SBA’s standing to sue, the unanimous opinion left little room for doubt about how the Court would rule if the Ohio statute were later to come before it, a reality which should aid SBA List in challenging the law in lower federal courts. And it gives SBA considerable breathing room for a return to robust participation in the 2014 election season. Commented SBA president Marjorie Dannenfelser, quoted by LifeSiteNews, “‘The truth or falsity of political speech should be judged by voters, not government bureaucrats.’”

We close this week’s Life Advocacy Briefing with a commentary from a leading Alliance Defending Freedom legal counsel documenting the reality that truth is exactly what SBA List sought to tell the voters of Mr. Driehaus’s Cincinnati-area district. We commend it to our readers.

Justice Applied

A GEORGIA ABORTIONIST WAS CONVICTED OF “CRIMINAL ABORTION” last Tuesday and sentenced to five years in prison and an additional five years of probation. He was also ordered to pay a fine of just $3,500.

Charles Rossman, whom Operation Rescue president Troy Newman described in an OR report by Cheryl Sullenger as “‘another Gosnell-like abortionist,’” had “led authorities on an 11-year chase that spanned two continents,” reports OR. Captured in Germany by Interpol, he was “returned to Lowdnes County, Georgia, in January 2014,” writes Ms. Sullenger, “where he has been held without bond.” Lowdnes County is in southern Georgia; the county seat is Valdosta.

In the 2003 incident which prompted the prosecution, Mr. Rossman “dispensed a handful of abortion pills to a 23-year-old woman who was beyond 30-weeks pregnant,” Ms. Sullenger reports. He then “coldly walked out of the office and locked the door, leaving the woman in labor and alone.”

Police had to break into the Rossman office after his victim placed a 911 call for rescue, relates Ms. Sullenger. They arrived, she writes, “in time to see [the victim] give birth to a baby boy. Both required emergency hospital care.

“The case was particularly shocking,” writes Ms. Sullenger, “due to the callous nature of Rossman’s treatment of his patient and the advanced stage of her pregnancy. Unlike some states,” she writes, “abortions that late in pregnancy are a crime in Georgia.”

The abortionist’s license was suspended in 2003, reports OR. The so-called doctor “fled the country and evaded capture by moving from one European country after another,” Ms. Sullenger reports.

Commented Mr. Newman, “‘We are relieved that justice has finally been done. … Rossman is an example of a dangerous abortionist, like Gosnell, that behaved as if patient safety standards and medical ethics did not apply to him. We just have to wonder how many others like Rossman are still out there victimizing women … . Based on our research into the abortion cartel, the answer is likely more than we can guess.’”

Victimizer & Abettor

ONE OF INDIANA’s MOST NOTORIOUS ABORTIONISTS IS BACK IN THE NEWS, as a court in Gary last Monday ordered 73-year-old Ulrich Klopfer to stand trial next January, reports Cheryl Sullenger in a LifeSiteNews.com story picked up from Operation Rescue, “for failing to report suspected child abuse” after committing an abortion in 2012 on a 13-year-old girl.

Indiana law requires immediate reports when health practitioners – including abortionists – encounter evidence of sexual activity in adolescent girls. The purpose is to give authorities opportunity to investigate and to bring molesters to justice, protecting their victims from further abuse.

Mr. Klopfer did not appear in the Gary courtroom last week; he “faces a possible penalty,” reports Ms. Sullenger, “of up to 180 days in jail and a $1,000 fine if convicted of the Class B misdemeanor.”

The abortionist’s “alleged failure to report the abuse was uncovered when Indiana Right to Life obtained thousands of Terminated Pregnancy Reports,” writes Ms. Sullenger, “and discovered 1,590 errors and omissions on the reports related to abortions in Lake and Allen Counties where Klopfer worked at two abortion [mills]. To date,” she writes, “over 1,200 complaints have been filed against” Mr. Klopfer, whose “practice” straddled the state, from Gary to Fort Wayne and points between.

“In March, police raided [Mr.] Klopfer’s Women’s Pavilion abortion clinic in South Bend,” reports Ms. Sullenger, “seizing documents and other property. He remains under criminal investigation in [South Bend], where inspection reports revealed … numerous health-and-safety code deficiencies … .”

Bit by Bit

EVEN IN OREGON, PLANNED PARENTHOOD SEEMS TO BE STUMBLING. The Columbia Willamette affiliate, reports Ben Johnson for LifeSiteNews.com, “has had to dramatically downsize – including closing one-third of its offices in its two-state territory – because it had lost a quarter of its business in two years.”

The Planned Parenthood branch is headquartered in Portland, Oregon, and extends into Washington State. The closed locations were in Clackamas and Gresham, Oregon, and Salmon Creek, Washington. The morning-after pill was dispensed at these locations; they did not “offer” surgical abortions. But the regional outfit’s communications director, reports Mr. Johnson, “told The Oregonian that Planned Parenthood had seen a 27% reduction in its number of customers since 2012.

“According to the Oregon Public Health Division, abortions have fallen steadily statewide,” writes Mr. Johnson. “The number of reported abortions in January 2014 was 287, less than one-third of the number reported in the same period either of the previous two years.”

Besides the closing of three offices, Planned Parenthood is laying off 17 staff members at the remaining shops, “and another five would have their hours cut,” reports Mr. Johnson. “Four open positions,” moreover, “will be allowed to disappear through attrition. Nearly 10% of this 244-person workforce will be affected,” reports Mr. Johnson.

Exulted Operation Rescue president Troy Newman, “‘Planned Parenthood’s bloated organizations are collapsing under their own weight’” … as “‘the demand for abortion [has] dropped significantly in America.’”

S.B.A. List Told the Truth

June 16, 2014, commentary by Alliance Defending Freedom senior counsel Casey Mattox, reprinted from TheFederalist.com

The unanimous US 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 … 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 uncheck 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 US 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, Pres. 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 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.”

* Life Advocacy Briefing editor’s note: A news release from Alliance Defending Freedom, making the same point, includes additionally Illinois, Oregon and Wyoming among the list of states whose citizens “may face the same dilemma” in “seeking coverage on the exchanges.”