Judge Timothy S. Black
The defendants in this case are calling their situation “bizarre.”
They are facing a court case that includes a wide range of possible penalties for criticizing a campaigning politician over his support of Obamacare, which they believe can include the taxpayer funding of abortion.
Yet today, a majority of the U.S. House of Representatives essentially made that same statement by approving a new piece of legislation that specifically would ban federal funds under Obamacare from being used for abortions.
“This is just bizarre beyond belief,” Marjorie Dannenfelser, chief of the Susan B. Anthony List organization, told WND today.
“Pretty much every speaker on the floor of the U.S. House of Representatives [agrees with us],” she said. “Are they acting in reckless disregard for the truth? Yet we are being held captive for hundreds of thousands of dollars to defend ourselves against this crazy defamation suit.”
It was Judge Timothy S. Black, who owes his lifetime appointment to Barack Obama, who previously concluded that the pro-life organization whose leaders criticized a politician for supporting Obamacare for funding abortions might be guilty of defamation – and possibly worthy of jail time.
The Cincinnati judge’s ruling refused to dismiss a case brought by former Democratic U.S. Rep. Steve Driehaus against the Susan B. Anthony List organization, which had criticized the congressman’s vote for Obamacare.
The organization now has requested permission to appeal that decision and is raising the issue that majority House members share the opinion that it expressed.
The judge, who cited Google as a source in one footnote of his ruling, had said, “Upon a careful review of both of the [Congressional Research Service] memoranda cited by the parties, this court fails to identify any affirmative statement that the PPACA [Obamacare] includes taxpayer funded abortion.”
However, House members feared taxpayer funding of abortion under Obamacare enough that they introduced and today passed the Protect Life Act to stop it.
The proposal specifies no funds authorized by Obamacare such as tax credits or cost-sharing reductions could be used to fund abortions or abortion coverage.
Abortion-supporting Democrats who are in the majority in the U.S. Senate are not expected to agree with the plan, but if it should somehow get through to the president, it would present a novel circumstance for Barack Obama.
He could sign the law and outrage all of the backers of abortion who support him, or he could veto it and violate his own endorsement of a ban on abortion funding under Obamacare.
Dannenfelser explained that the Hyde Amendment for years has limited federal taxpayer funding for abortion, but analysts confirm that the amendment does not apply to funding distributed under Obamacare.
Pro-life combatants in the war over abortion now have mainly an executive order from Obama preventing Obamacare money from funding abortions, and that could be changed on any whim from the Oval Office.
Dannenfelser said the problem is that many define ordinary health care as provided by Obamacare to include abortion.
The goals of the Susan B. Anthony List include electing pro-life candidates who oppose abortion to Congress, educating voters on issues, training activists and advocating passage of pro-life legislation.
The ruling from Black denied the defendants a summary judgment, setting up a trial to determine whether there was a defamation and whether there was malice in the statements by the SBA List, including those by its president, Dannenfelser.
The organization had issued news releases criticizing the reportedly pro-life Driehaus for voting for Obamacare and stating its objections were to the abortion funding. Driehaus sued, claiming he lost reputation and income because he was not re-elected following the criticism.
Driehaus was not re-elected in 2010, losing to former U.S. Rep. Steve Chabot. During the campaign, the Democratic Party pulled its financial support for television ads when Driehaus fell behind.
According to the SBA List, Driehaus filed a criminal complaint with the Ohio Elections Commission first, under a statute that carried a penalty of jail time. He later decided to advance the defamation case instead.
“Through this criminal statute, he’s even threatening me with jail time,” Dannenfelser said at the time.
Former Rep. Steve Driehaus
According to the organization, one of the statements about Driehaus also was in an ad that state, “Steve Driehaus doesn’t want you to know the truth … but you deserve to hear it. Steve Driehaus voted for taxpayer funding of abortion when he cast his vote for the health care reform bill.”
The focal point of the dispute is whether Obamacare funds abortions. The judge said he looked and couldn’t find any provision. But his ruling was anything but clear.
“Whether it is possible … that the PPACA would not prevent taxpayer funded abortion is entirely different from providing for ‘taxpayer funded abortion.’ The express language of the PPACA does not provide for taxpayer funded abortion,” he wrote.
“The SBA List’s speech was true, or at the very least it was its protected opinion about the meaning of Obamacare,” said James Bopp Jr., the counsel for SBA List. “Yet the court found that the SBA List’s speech about Driehaus might be defamatory and ordered a trial to determine whether it is or not.
“In a Supreme Court case called N.Y. Times v. Sullivan, the court established special rules for the type of speech that can be considered defamatory of public figures like elected officials. In order to be defamatory, the speech must obviously be false and cause injury, but it must also be made with actual malice,” he continued.
“That’s a legal term that means that the speaker either knew the speech was false and said it anyway, or the speaker recklessly disregarded finding out whether the speech was true or false. That plainly was not the case with the SBA List. They researched Obamacare themselves, and they also read the opinions of other groups that also concluded that Obamacare provided taxpayer funds for abortion services. Yet this court found, in spite of that, and in spite of the fact that their speech is true or at least their protected opinion, that their speech might be defamatory,” he said.
“This ruling means that anybody criticizing a candidate is in danger of a defamation claim,” he warned.
In fact, the Obama administration confirmed in July 2010, as reported by ABC News, that the president’s signature health care legislation funds abortions in cases of rape, incest or when the mother’s health is at risk.
Further, it now has ruled that all insurance carriers will be required to include coverage of the Plan B “morning-after” pill that can destroy the life of a fertilized egg by preventing the implantation of the developing embryo, Answers in Genesis pointed out.
Noted the prominent organization, “Despite the evidence that Plan B has a secondary mechanism as an abortifacient, the FDA allows Plan B packaging and patient information to claim that it does not cause abortion… The ‘truth’ of this claim depends on new government-approved definitions.”
Black, who was sworn in as a judge about the same time the Obama administration was telling ABC of the abortion funding procedures in Obamacare, said, “A showing of actual malice may also be premised on evidence demonstrating that the alleged defamer purposefully avoided or deliberately ignored facts establishing the falsity of its statements.
“This court clearly cannot grant summary judgment where … the plaintiff is able to produce significant evidence that the statements are false.
“It is irrelevant whether an assertion that the PPACA ‘allows for taxpayer funded abortion’ could have been proven to be true … because the SBA List made the far different statement that the PPACA ‘includes taxpayer funding of abortion,'” he continued.
A statement from the SBA List noted that Driehaus’ complaints revolve around the loss of his “job” and “livelihood” because of its efforts to educate constituents about “his vote in favor of taxpayer funding of abortion in the health care bill.”
“No politician, bureaucracy, or court should have the power to silence the right of citizens to criticize elected officials,” Dannenfelser said on the issue. “Ohio’s False Statement Law allows candidates like Steve Driehaus to silence any speech critical of them by simply filing a complaint with the Ohio Election Commission. Then, when the election is over, the candidates can dismiss their complaint so the law cannot be reviewed by the federal courts. An unelected commission should not have the ability to decide what is true and false speech, nor tell us what speech we can and cannot hear.”
The organization’s statements were in news releases it issued as well in a radio ad. It planned to put them on billboards but did not do so because pending election commission complaint at the time.
Driehaus’ complaint against the SBA List was opposed by even the ACLU of Ohio, which, in a friend-of-the-court brief last year, said, “The people have an absolute right to criticize their public officials, the government should not be the arbiter of true or false speech, and the best answer for bad speech is more speech.”
“Steve Driehaus’ constituents saw the truth about his pro-abortion record and made their voices heard on Election Day,” said Dannenfelser. “Their conclusion – that Steve Driehaus voted for a bill allowing taxpayer funding of abortion – is backed by every major pro-life organization in the country along with the United States Conference of Catholic Bishops, the Congressional Research Service and other nonpartisan organizations. The SBA List will continue to defend its actions, the voters and the right to criticize our elected officials.”
The judge also has given instructions to Driehaus on how he should prepare a winning argument.
“Driehaus can evidence ‘public figure’ defamation by: (1) demonstrating that the alleged defamation was an outright fabrication, or (2) show that SBA List purposefully avoided the truth. Reckless disregard for the truth ‘is likely to be found ‘where a story is fabricated by the defendant, [or] is the product of his imagination,” … A show of actual malice may also be [based] on evidence demonstrating that the alleged defamer purposefully avoided or deliberately ignored facts establishing the falsity of its statements,” the judge wrote.