Wall Street Journal: The ACLU Stands Up for Pro-Lifers—Really

This article first appeared online at WSJ.com.

In his Main Street column for The Wall Street Journal, William McGurn commends the ACLU Ohio for sticking up for pro-life speech and says unelected commissions like the Ohio Elections Commission shouldn’t pass judgment on campaign claims.
By William McGurn

It’s not every day these columns praise the American Civil Liberties Union. Even less often will you find the ACLU standing up for pro-lifers. That, however, is exactly what’s happening in Ohio—and it tells us a great deal about threats to conviction and free speech in modern American politics.

The ACLU Ohio’s client here is the Susan B. Anthony List, or SBA List, a political action committee whose top goal is to elect pro-life women of either party to Congress. The group is run by a D.C. friend of mine, Marjorie Dannenfelser. In this year’s races, she targeted 20 House Democrats who voted for the health-care bill. Fifteen of these 20 lost their seats, which makes Mrs. Dannenfelser Public Enemy No. 1 in certain circles.

One of these losers is Ohio Rep. Steve Driehaus. During the campaign, the SBA List planned to erect billboards saying, “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” Before that could happen, however, Mr. Driehaus filed a complaint with the Ohio Elections Commission (OEC) saying the SBA List wording violated a state campaign law against “false statements.”

Enter the ACLU Ohio. Carrie Davis, one of the local ACLU lawyers defending the SBA List, directs me to an amicus curiae brief that minces no words: “The people have an absolute right to criticize their public officials, the government should not be the arbiter of true or false speech, and the best answer for bad speech is more speech.” (For the record, Ms. Davis, who’s been honored as a “Champion of Choice” by NARAL Pro-Choice Ohio, notes that the ACLU does not believe the health-care law allows federal funding for abortion.)

Bradley Smith, a law professor at Capital University and former chairman of the Federal Elections Commission, says the ACLU is absolutely right to take on the Ohio law. “Good lawyers know how to game the system,” he says. “You file a complaint, accusing your opponent of making a false statement. When an OEC panel finds ‘probable cause’ to investigate, you then tell everyone your opponent is a liar and point to a government body as backing up your claim.”

That is just what happened in Ohio. The moment Mr. Driehaus filed his complaint, the press reported the OEC investigation and then the finding of probable cause. The billboard company responded by saying it would not run the SBA List ads until the issue was adjudicated. The upshot: Instead of letting the voters decide, a government body put its finger on the scale during the last days of a hotly contested election.

As for the substance, Mrs. Dannenfelser is not backing off her claim that the new health-care law will ultimately mean tax dollars for abortions. She wonders, moreover, how pro-lifers who voted for the Stupak Amendment because they believed the law needed an explicit ban could then settle for a bill stripped of that amendment. “These are legislators,” she says. “They know that an executive order cannot trump the law or a court ruling on the law.”

Not every Democrat, of course, buys Mr. Driehaus’s argument that the bill doesn’t mean taxpayer funding for abortion. Illinois Congressman Dan Lipinski voted for the Stupak Amendment, against the health-care bill—and was re-elected with nearly 70% of the vote. Mr. Lipinski laments the loss of pro-life Democrats, which he says the party will need to regain if it ever hopes to enjoy a majority again. “In my reading and the reading of most of the people opposed to abortion,” he says, “this bill does include federal funding for abortion.”

Those upset with these Democratic defeats are painting Mrs. Dannenfelser as a member of the GOP establishment. It’s an odd charge to make, and not just because Mrs. Dannenfelser started out as a staffer for West Virginia’s Democratic Congressman Alan Mollohan. A week before Michigan Democrat Bart Stupak folded on his own amendment, Mrs. Dannenfelser wrote an op-ed for the Washington Post excoriating the Republican Party for “ignoring” the abortion issue.

Whichever side you come down on, surely we can all agree that it is outrageous that an unelected body of political appointees is deciding who’s telling the truth in a campaign.

“The mere allegation creates a chilling effect on speech,” says Ms. Davis. “The case may go on and on, but the damage is already done.”

So hooray today for two women: for Mrs. Dannenfelser and the SBA List for speaking up for life and holding our pols accountable—and for Ms. Davis and the ACLU Ohio for standing up for their right to do so.

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