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This article originally appeared online at Newsweek on February 12, 2011.

A Tale of Two Bad Laws
‘Obamacare’ collides with Ohio’s regulation of the truth
By George Will

No person, during the course of any campaign…shall…make a false statement concerning the voting record of a candidate or public official. —An Ohio law

The subject of abortion roiled Washington last week, as it has frequently done during the 38 years since the Supreme Court, by nationalizing the issue, made it the cause of a deep fissure in American politics. Last week’s interest in abortion could have been, but was not, because of the simultaneously heartening and (one hopes) unsettling report about stunning success in treating severe forms of spina bifida in utero. If babies can be surgery patients 19 weeks after conception, are they not babies rather than mere “fetal material” whose “termination” is a matter of moral indifference?

And last week’s interest in abortion could have been, but was not, because of recent stomach-turning (one hopes) reports about the routine butchery of babies at a Philadelphia abortion mill. There, according to the district attorney’s office, late-term abortions often produced living, viable babies who were then killed by “snipping”—using scissors to cut their spinal cords.

Instead, last week’s congressional interest in abortion was part of the aftershocks from last year’s enactment of the health-care law, an event that is having odd reverberations in Ohio’s First Congressional District, which includes Cincinnati. There, last November, Steve Driehaus, a freshman Democrat, lost his bid for a second term by 11,098 out of 201,518 votes cast.

Driehaus, a Catholic opposed to abortion rights, believes that he might have lost because of what he sincerely believes were false statements in broadcasts by the Susan B. Anthony List. The statements were that in voting for the health-care legislation he voted “for taxpayer funding of abortion.” Driehaus insists that “many organizations” supported the legislation “because” he and others secured language in it, and in an executive order issued by the president, that precludes federal funding for abortions.

SBA List, a pro-life political-action committee named in honor of the suffragette who called abortion “child murder,” believes with equal sincerity that its statements about Driehaus’s voting record were accurate. It says, accurately, that “every major pro-life group in the country agrees” that the health-care law allows taxpayer funding of abortion. The Conference of Catholic Bishops, which strongly favors reforms to broaden access to health care, nevertheless opposed the final bill because it thinks the law permits taxpayer funding of elective abortions, in contravention of federal policy since 1976. That organization’s analysis (which can be read at USCCB.org/healthcare) stresses, among other things, the role of federal funds in subsidizing the purchase of health-care plans that include coverage of elective abortions. The National Right to Life Committee’s 23-page affidavit, arguing that the law contains “multiple provisions that do in fact authorize (i.e., create legal authority for) federal funding of elective abortion” can be read at nrlc.org/AHC/DvSBA.

The arguments of the pro-life groups are convincing, but the law’s pertinent provisions are so complex that Driehaus’s good faith should not be questioned. The law was cobbled together in haste. Many provisions are unclear because they were written to mollify one faction without angering another. Opacity was indubitably necessary for the dubious project of producing a congressional majority for legislation opposed by a large majority of Americans.

And then there is Ohio’s misbegotten “false statement” law, which is an invitation to mischief as a campaign tactic. Shortly before the election, when Driehaus learned that SBA List was planning to make its accusations against him on billboards, he got the law’s enforcement agency, the Ohio Elections Commission, to find probable cause for questioning SBA List’s assertion. The billboard company decided not to proceed when Driehaus threatened to sue it. Now Driehaus is suing SBA List for defamation.

This episode teaches two lessons. First, legislation that must be ambiguous and misleading, even to supporters, in order to be passed should not be passed. Second, no good can come of a law that makes government the arbiter of the truth of political speech.
George Will is also the author of One Man’s America: The Pleasures and Provocations of Our Singular Nation and With a Happy Eye But . . .: America and the World, 1997—2002.

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