The Wall Street Journal is celebrating a recent Supreme Court ruling that will allow an anti-choice activist group to challenge the constitutionality of an Ohio law that bans false statements in election campaigns, a state statute that is opposed by free speech advocates across the political spectrum. But the WSJ went on to erroneously argue that the false statement at issue in the case -- that the Affordable Care Act (ACA) funds abortions -- is actually true, because contraceptives are actually "abortifacients."
On June 16, the Supreme Court unanimously ruled that the group, Susan B. Anthony List, had standing to sue over the Ohio statute. Susan B. Anthony List, which is "dedicated to electing candidates and pursuing policies that will reduce and ultimately end abortion," ran into trouble when it tried to take out a billboard calling Ohio congressman Steve Driehaus' vote for the ACA a vote for "taxpayer funded abortion." Driehaus filed a complaint against Susan B. Anthony under the Ohio statute, but ultimately withdrew it after he lost his election. Nonetheless, the organization challenged the constitutionality of the false statement law, claiming that it violated their First Amendment rights.
The Court's decision did not address the merits of Susan B. Anthony's claim. But that didn't stop some right-wing media outlets from calling the ruling "a big win ... for the pro-life movement." The Wall Street Journal evidently agreed with this analysis and added that the decision is "a rebuke to politicians who don't want to be criticized" in a June 16 editorial. The WSJ went on to argue that the billboard at issue had been "vindicated" because the ACA forces "religious groups to finance abortifacents."
From the editorial:
Monday's decision concerned whether Susan B. Anthony was able to sue. The Sixth Circuit Court of Appeals had said it could not because Mr. Driehaus withdrew his complaint after he lost. But Justice Clarence Thomas wrote for the Court that this decision improperly minimized the burden on groups whose speech is chilled for fear that they could be sanctioned or sued. Lower courts will now revisit the constitutional challenge.
As it happens, Susan B. Anthony's billboard claim has been vindicated by the Obama Administration's rule forcing religious groups to finance abortifacients in their health-care policies for employees. In a democracy, voters rather than a priesthood of regulators are obliged to sort out the truth or falsity of political claims. Congrats to Susan B. Anthony, and perhaps the Sixth Circuit will seek out some remedial First Amendment education.
The WSJ ignores the fact that the Court found that Susan B. Anthony had standing at least in part because the organization "has already stated that representatives who voted for the ACA supported 'taxpayer-funded abortion,' and it has alleged an 'inten[t] to engage in substantially similar activity in the future." In other words, Susan B. Anthony is likely to be prosecuted under the statute again because they're likely to make false statements again. In fact, NARAL Pro-Choice America President Ilyse Hogue observed that the Court had put "the public, and the press ... on notice to not take anything that comes out of SBA List organization as truthful or fact-based."
Yet the WSJ still claims that Susan B. Anthony's statements are true because the ACA's so-called contraception mandate "forces" groups to pay for "abortifacients" -- a term the right-wing has attached to certain birth control methods that they have determined cause abortions, despite all scientific evidence to the contrary. The idea that the ACA mandates "taxpayer-funded abortion" through the "contraceptive mandate" is borrowed from a different Supreme Court case, Hobby Lobby v. Sebelius, where the religious owners have conflated birth control with abortion in an attempt to avoid providing health insurance that covers contraception to their employees. But the drugs in dispute in the Hobby Lobby case do not "meet abortion opponents' definition of abortion-inducing drugs," according to The New York Times, "because they block creation of fertilized eggs" rather than destroying implanted embryos.
A decision in Hobby Lobby is expected by the end of this month.
Whether or not organizations like Susan B. Anthony List will be permitted to make false statements during an election will ultimately be up to the courts to decide -- but The Wall Street Journal shouldn't try to pass off their misinformation as truth.