This is an odd lawsuit. A pro life Democrat, former Congressman Steve Driehaus, was accused by the Susan B. Anthony List in ads (such as the one to the left) of supporting government funding of abortion by voting for Obamacare. He lost his campaign for reelection and sued SBAL for defamation of character. Now, a court is allowing the lawsuit to proceed based on a factual determination that Obamacare does not fund abortion. From the Politico story:
A federal judge in Ohio said Monday that the Affordable Care Act does not provide for taxpayer funding for abortion. The statement was the cornerstone of the judge’s ruling to allow a defamation lawsuit brought against the Susan B. Anthony List by a former congressman to move forward. Former Ohio Representative Steve Driehaus sued the SBA List for defamation of character during the 2010 election cycle, when the anti-abortion group ran an ad campaign on the premise that Driehaus had voted for a bill “that includes taxpayer funding for abortion,” in reference to Driehaus’s vote in favor of the ACA.
That may or may not be true, depending on whether the government ultimately directly subsidizes health insurance premiums for policies that cover abortion, and whether President Obama’s executive order precluding abortion funding is considered part of Obamacare. But that’s not what I want to focus on.
I find it very interesting that supporting abortion funding can be considered a defamation. In the USA, defamation generally requires three elements of proof (four, if the allegedly defamed person is a public figure). One, that a statement is false. Two, that it was published to third parties (in other words, if I falsely call Joe a horse thief to his face, but don’t tell others that he steals horses, by definition, he wasn’t defamed). Three, that the statement exposes the defamed person to loss of reputation or public hatred and ridicule. And, four: As a public figure, under New York Times v. Sullivan, Driehaus will have to show that even if the statement was defamatory, it was made with malice, meaning that SBAF knew it was false and published it anyway reckless disregard of the truth. I don’t think that will fly in a case like this, particularly since it was explicit political speech.
But back to the point of this post: Can it be a defamation for a self-identified pro lifer to be called a supporter of government funded abortion, abortion itself being a legal activity? If so, does that say anything about the respectability of abortion? It will be interesting to find out.