January 27, 2013

Not News: Federal Judge Tosses Sore Loser Former Congressman’s Claim Against Susan B. Anthony’s List (See Update Based on NRLC-Provided Information)

It’s not very often that a federal judge begins a ruling by saying that “Sometimes even a person with excellent vision does not see the forest for the trees.” That happened yesterday in a case involving former First District Democratic Congressman and sore loser Steve Driehaus, whose district mostly comprised the western two-thirds of Cincinnati’s Hamilton County. Yet it’s not news at Gannett’s Cincinnati Enquirer — or anywhere else, for that matter.

After his 2010 defeat at the hands of Republican Steve Chabot, Driehaus sued the Susan B. Anthony List in federal court  for defamation and — get this — “loss of livelihood.” Why? Because, during that campaign, SBAL told Driehaus’s constituents — correctly, it has since been proven — that his vote for ObamaCare was a betrayal of his pro-life principles. Yesterday, despite his obvious conflict of interest as former president and director of the Planned Parenthood Association of Cincinnati, Judge Timothy Black, a Barack Obama appointee, found a way to do what he should have done in the first place, and rejected Driehaus’s nonsense.

A firm hat-tip for highlighting this ruling goes to COAST, a Cincinnati-area watchdog and limited-government advocacy group which, from what I can tell, is the only outfit anywhere which has noted it.

Despite ruling as he did, Judge Black still bitterly clings to his original belief that SBAL’s claims were false and defamatory, a matter I will address after presenting the following excerpts from the ruling (bolds are mine throughout this post):

Sometimes even a person with excellent vision does not see the forest for the trees.

On August 1, 2011, this Court entered its interlocutory Order Denying Plaintiff Susan B. Anthony List’s Motion for Summary Judgment on Defamation. (Doc. 34). The Court held that former Congressman Steve Driehaus had stated a plausible claim for defamation, sufficient to proceed to discovery.

… Earlier in the summer (of 2012), SBA List had retained new trial counsel who had promptly filed … “new and refined arguments,” including a claim that associating a political candidate with a mainstream political position, even if false, cannot constitute defamation, as a matter of law. Upon review, and in light of established and recent decisions of the United States Supreme Court, this Court agrees.

… The concomitant principles of free speech and truth collide most violently in the arena of political speech. During the recently passed national elections, citizens were bombarded with political advertisements that the targets of which daily denounced as lies. Who then shall be the arbiter of political truth? Ultimately, in a free society, the truth of political back and forth must be adjudicated in the “marketplace of ideas” …

… (SBAL) asserts that “Driehaus cannot find a single case, in all of American history, that has awarded defamation damages based on a false statement about a public official’s position on public policy.”

The law steers far clear of requiring judicial determination of political “truth,” and does so because of the serious dangers to democracy and the political process that would result from turning the courts into “truth squads” with respect to core political speech on matters of public concern.

… when one walks through the elements of a claim for defamation, the required allegations are present here. However, that precise and robotic analysis of each of the factors required for defamation caused the Court to focus only on the trees and ultimately not to see the forest. Here, the forest is the right to free speech under the First Amendment, even false speech, when it applies to politics. Given that, as a matter of law, associating a political candidate with a mainstream political position, even if false, cannot constitute defamation, the Court hereby grants summary judgment to Susan B. Anthony List and dismisses Driehaus’s counterclaim for defamation as to the taxpayer funded statements.

Driehaus and other Democrtaic congressmen who pretended to be pro-life but nonetheless voted for ObamaCare claimed at the time that an Executive Order issued by Obama somehow ensured that federal funds would not be used for abortions, and that ObamaCare would not otherwise cause insurers and self-insurers to have to pay for them. (As explained in the udpate below by National Right to Life’s Doug Johnson, the “Stupak Amendment” that would have hard-wired pro-life protections into the healthcare bill did not make it into the Affordable Care Act as passed.)

Obama’s EO has clearly not prevented either item from occurring. Judge Black is objectively wrong if he still believes that SBAL’s 2010 campaign assertions were false (he never specifically said as much, but he didn’t back away from his original ruling that “a plausiable claim for defamation” existed), as seen in the following developments which have taken place in the wake of ObamaCare’s passage.

In September 2012, the Georgia version of PolitiFact, an outfit which all too often claims that lies from the left are true, labeled as “mostly true” an assertion by former Georgia Secretary of State Karen Handel that “Obamacare will provide coverage for abortions, despite the president’s commitment that it would not.”

In March 2012, Steven Ertelt at Life News wrote up ObamaCare’s abortion-supporting scheme in “Obama Admin Finalizes Rules: $1 Abortion Surcharge in ObamaCare”; PolitiFact’s main site labeled Ertelt’s write-up “false” for reasons that are so childish and intellectually dishonest one doesn’t know whether to laugh or cry. Here, in sum, is what ObamaCare really does (internal link added by me):

… Nestled within the “individual mandate” in the Obamacare act — that portion of the Act requiring every American to purchase government — approved insurance or pay a penalty — is an “abortion premium mandate.” This mandate requires all persons enrolled in insurance plans that include elective abortion coverage to pay a separate premium from their own pockets to fund abortion. As a result, many pro-life Americans will have to decide between a plan that violates their consciences by funding abortion, or a plan that may not meet their health needs.

… “To comply with the accounting requirement, plans will collect a $1 abortion surcharge from each premium payer,” the pro-life source informed LifeNews. “The enrollee will make two payments, $1 per month for abortion and another payment for the rest of the services covered. As described in the rule, the surcharge can only be disclosed to the enrollee at the time of enrollment. Furthermore, insurance plans may only advertise the total cost of the premiums without disclosing that enrollees will be charged a $1 per month fee to pay directly subsidize abortions.”

“President Obama’s healthcare overhaul includes an ‘abortion premium mandate’ that blatantly violates the conscience rights and First Amendment religious rights of millions of Americans,” AUL (Americans United for Life) president Charmaine Yoest said. “Nowhere in the Constitution does it require Americans to violate their beliefs and pay for abortions.”

ADF (Alliance Defense Fund) Senior Counsel Steven Aden says Americans should not be compelled to pay for other people’s elective abortions.

“No one should be forced to violate their conscience by paying for abortions, but that’s precisely what ObamaCare does,” he explained.

In other words, the abortion mandate is in there, and the pro-abort bill drafters who jammed it into ObamaCare hope they can avoid a nationwide outcry by limiting exposure to times when people are bogged down in enrollment paperwork and won’t be paying attention to the minutiae of plans they are considering.

Additionally, getting back to SBAL’s core campaign assertion about Driehaus that his pro-ObamaCare vote betrayed his suppposed pro-life principles, let’s look at the situation with Hobby Lobby and other employers who are being threatened with massive daily fines if they fail to pay for abortion-inducing drugs. Those circumstances demonstrate that Driehaus, who claims to be Catholic and whose religion specifically defines being “pro-life” as including opposition to the use of such drugs, voted for a state-run health care regime which is attempting to force employers against their owners’ consciences to pay for abortions.

In other words, subsequent developments have proven that even if Judge Black had allowed Driehaus’s lawsuit against SBAL to proceed, it would have had no basis in fact. In ruling as he did, the judge conveniently avoided making this obvious determination, implying that Driehaus was really right, but that the darned Constitution lets people lie. I guess this means that Black will still get invites to Planned Parenthood events and parties hosted by far-leftists.

But just for the record, Judge Tim and former Congressman Steve – You may be able to fool your leftist pals, but you’re not fooling us.

The Cincinnati Enquirer, as of 10:30 this morning, had no story on Judge Black’s ruling, even though it concerns a local former congressman and even though the same search reveals that it covered Black’s allowing the suit to proceed in 2011.

I guess it’s only news when court rulings favor Democrats. And I daresay that if a sore-loser Republican had gone to court over his loss, we’d also be hearing about it from the national establishment press instead of having the matter thus far receive the silent treatment.

Cross-posted at NewsBusters.org.


UPDATE, Jan. 29: Doug Johnson at National Right to Life emailed me on Monday, January 28 with supplemental information and one revision as follows (bolds are mine throughout this update, and I have modified the language of the original post to reflect Doug’s revision relating to “the Stupak Amendment”) –

I read with great interest your blog post on Judge Black’s January 25 order, which was the first coverage I’ve seen on the order. While I certainly agree with the thrust of what you’ve written, and applaud the judge’s belated action, please allow me to note a couple of small points.

First, you accurately characterize the content of the Stupak Amendment (or Stupak-Pitts Amendment), but inaccurately state that it “was defeated on the House floor.” On the contrary, in the only House vote on the amendment that ever occurred, the amendment was adopted by the House, 240-194, and the health care bill that passed the House contained this comprehensive abortion fix (Nov. 7, 2009). But the House vote was denounced by President Obama, and Senator Reid subsequently wrote a new bill that contained no such language. In December 2009, the Senate passed the Reid bill, which was replete with abortion-expanding provisions.

Following the Senate action, NRLC and other pro-life groups worked for months after that, in concert with a group of Democrats that included Stupak and Driehaus, to prevent House passage of the Senate-approved bill, precisely because of the abortion problems. As late as March 19, 2010, Congressman Stupak introduced a formal resolution (H. Con Res. 254) to fix the pro-abortion provisions in the Senate-passed health bill. This resolution, if enacted, would have removed objectionable language added to the Senate-passed bill, and added bill-wide, permanent prohibitions on any provision of the bill being used to authorize pro-abortion subsidies or administrative decrees. Mr. Driehaus’s name was printed on the first page of H. Con. Res. 254 — he was an original cosponsor. Thus, through a formal official act, Mr. Driehaus recognized the abortion-subsidizing components of the bill as late as March 19, 2010.

Regrettably, House Speaker Nancy Pelosi did not agree to allow a vote on the Stupak resolution/amendment. Regrettably, Mr. Stupak, Mr. Driehaus, and some (but not all) of the other lawmakers in the “Stupak group” then abandoned their resistance and voted to send H.R. 3590 to President Obama for his signature, on March 21, 2010 (House Roll Call No. 165). The bill that Driehaus voted for was exactly the bill he had resisted for months due to the pro-abortion components, and tried to fix with H. Con. Res. 254.

These events are recited in more detail in this affidavit:


I also have somewhere a collection of quotes from Driehaus, from early 2010, in which he stated his opposition to the Senate-passed bill because of the pro-abortion provisions. One of the bizarre elements of Driehaus’s lawsuit was that he was, in effect, suing the Susan B. Anthony List for agreeing with what Driehaus had himself said on multiple occasions up through March 19, 2010.

The abortion surcharge which you describe is actually a scheme to deflect attention away from the expansive abortion-insurance subsidies that are in Obamacare, which the affidavit describes in detail.

Douglas Johnson
Legislative Director
National Right to Life Committee (NRLC)

From the affadavit (PDF):

(Pages 7-8) In a three-page single-spaced letter to U.S. House members dated March 19, 2010 (Exhibit H), NRLC again detailed the multiple abortion-expanding components of the pending Senate-passed bill, stating in part: “The bill is riddled with provisions that predictably will result in federal subsidies for private insurance plans that cover abortion (some of which will be administered directly by the federal government), direct federal funding of abortion through Community Health Centers, and pro-abortion federal administrative mandates. The sum of these provisions makes H.R. 3590 the most abortion-expansive piece of legislation ever to reach the floor of the House of Representatives. . . . [T]he purported protections in the Senate bill are all very narrow, riddled with loopholes, and/or rigged to expire. There is nothing in the Senate bill remotely resembling the Stupak-Pitts Amendment, added to H.R. 3962 by the House of Representatives on November 7, 2009, which was an effective, bill-wide, permanent prohibition on subsidies for abortion under the programs authorized by the bill.”

…  (Pages 9-10)  The bill, as passed, contained no revisions to any of the abortion-expanding provisions discussed in NRLC’s letter of March 19. The bill, as passed, still contained all of the objectionable pro-abortion language that H. Con. Res. 254 would have stricken, and did not contain the bill-wide prohibition on federal funding of abortion that H. Con. Res. 254 would have inserted.

30. Any member of the House of Representatives who voted to pass H.R. 3590 on March 21, 2010, did in fact vote to authorize federal funding of abortion in multiple provisions of the bill, as enumerated in the previously referenced documents.

… (Page 12) any House member who voted for the PPACA did indeed vote to authorize “taxpayer funding of abortion,” not just in one component of the law, but under multiple programs and authorities created by the law.

… (Page 13) In a report published on July 22, 2010 report, www.FactCheck.org, a nonpartisan entity operated by the Annenberg Public Policy Center, examined NRLC’s July 13 press release regarding the DHHS-approved PCIP (Pre-existing Condition Insurance Plan) proposal for Pennsylvania and concluded that NRLC was correct in asserting that it covered abortion.

… (Page 14) On July 23, 2010, the Congressional Research Service (CRS), a nonpartisan research support agency for Congress, issued a report (Exhibit N) confirming that neither the Hyde Amendment nor any provision of the PPACA prevented the use of funds in the PCIP program from being used to cover all elective abortions. (Note: The Department of Health and Human Services issued a regulation prohibitng this use, which only served to prove that ObamaCare has as passed wouldn’t prevent such occurrences in the future. — Ed.)

The affadavit goes on to cite several additional specific examples of abortion-supporting and subsidizing measures Obama’s Executive Order, even if it trumped the law as passed (which isn’t the case) doesn’t touch.

I appreciate the information Doug has provided.

It’s beyond obvious that Steve Driehaus never, ever had a credible claim against SBAL.



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