Lawsuit Over Antiabortion-Rights Campaign Ad Reaches Supreme Court

April 22, 2014 — A case being heard before the Supreme Court Tuesday morning will decide whether an antiabortion-rights group has legal standing to challenge an Ohio law prohibiting false statements in political ads, Politico reports (Winfield Cunningham, Politico, 4/22).


In August, the antiabortion-rights group Susan. B. Anthony List asked the Supreme Court to review the law, which was invoked by former Rep. Steve Driehaus (D-Ohio) to block SBA List from erecting billboards that accused him of supporting taxpayer-funded abortions because he voted for the Affordable Care Act (PL 111-148). Driehaus said the group's claim was false because federal law prohibits the use of public funding for most abortions.

According to SBA List, the Ohio law violates its First Amendment right to free speech. The 6th U.S. Circuit Court of Appeals rejected the group's attempt to challenge the statute on those grounds.

In January, the Supreme Court announced it would hear the case (Women's Health Policy Report, 4/16).

Issue of Harm

SBA List's underlying argument is that the government does not have the constitutional right to decide what can be considered false speech in the context of a political campaign, NPR reports (Barlow/Totenberg, NPR, 4/22).

However, the Supreme Court is not likely to decide the law's constitutionality, according to Politico. Rather, the justices will decide whether SBA List has legal standing to challenge the law, given that the group was never prosecuted under it (Politico, 4/22).

According to NPR, lower courts have found that any harm the group is claiming is merely "speculative." SBA List in its appeal to the Supreme Court argues that it has the legal standing to challenge the law because it could chill speech in future campaigns (NPR, 4/22).

David Langdon, an Ohio-based attorney who works with SBA List, said that the Ohio law is "used as a tool" in every election. "It's become a part of campaigns, and it's very speech-inhibiting," he said.

According to Politico, the group has announced similar ads targeting Sens. Kay Hagan (D-N.C.), Mary Landrieu (D-La.) and Mark Pryor (D-Ark.).

ACA Debate Persists

SBA List and other antiabortion-rights groups are also invested in the case because they want the Supreme Court to rule on whether the ACA permits taxpayer funding of abortion, Politico reports (Politico, 4/22).

NPR notes that antiabortion-rights Democrats like Driehaus only signed onto the ACA after President Obama agreed to issue an executive order applying a federal policy prohibiting funding for abortion coverage -- except in cases of rape, incest or danger to a woman's life -- to health plans sold through the law's marketplaces (NPR, 4/22).


SBA List President Marjorie Dannenfelser said, "Free speech is the qualifier for any argument, including our argument, abortion." She added, "If we can't take that for granted, then we have no ability to argue that abortion is the taking of the life of a person equal to you and me."

American Civil Liberties Union Legal Director Steven Shapiro said in an amicus brief filed with the court that voters -- not the state -- should decide what political speech qualifies as misleading. "It's not the state's role to be the referee of political truth," he said, adding, "I think that's the job of voters" (Politico, 4/22).