ACRU Senior Legal Analyst Ken Klukowski wrote this column appearing October 26, 2010, on Townhall.com.
Congressman Steve Driehaus broke faith with his constituents in the Cincinnati, Ohio area, by voting for the big-government monstrosity known as Obamacare. The pro-life Susan B. Anthony List (SBAL) has run billboards condemning Driehaus’ vote, asserting that Obamacare funds abortion. SBAL is correct that Obamacare does fund abortion under a federal court ruling that covers Ohio.
Ohio has a law making it a crime to publicize a false statement. On suspicion that SBAL’s statement was a lie, the Ohio Elections Commission has launched an investigation in an attempt to block the billboard message and has ordered hearings, issuing subpoenas to SBAL president Marjorie Dannenfelser and other pro-life leaders.
Election-law expert Jim Bopp is representing SBAL, having filed a federal lawsuit on the grounds that the Ohio law at issue here violates the First Amendment of the U.S. Constitution. (Bopp is right; this law is unconstitutional because it’s overly broad.) The case is Susan B. Anthony List v. Driehaus. SBAL filed for a temporary restraining order (TRO) to allow its pro-life message to go forward because the election is only days away.
On Monday, October 25, Judge Timothy Black of the U.S. District Court for the Southern District of Ohio ruled against granting the TRO for SBAL. Although Judge Black is a recent Obama appointee, it appears that his ruling might be correct under controlling legal precedent. In doing so, Judge Black invoked the Younger abstention doctrine, under which if a state proceeding is ongoing that is judicial in nature, where defendants can be assisted by lawyers who can raise legal defenses (such as saying that a billboard is protected by the First Amendment) then the federal court must abstain from taking action until the state tribunal is finished.
The judge’s decision may be correct, and is not a ruling on the constitutional merits. The Younger doctrine is a federalism doctrine, designed to force federal courts to respect state sovereignty. It says that a federal court can act, but not until the state tribunal is done, because the state may get the issue right by upholding the Constitution on its own. It’s a conservative doctrine to limit the power of federal courts.
It’s unfortunate that SBAL’s message is being blocked, because Obamacare does fund abortion in at least four states, including Ohio. In Planned Parenthood Affiliates v. Engler, 73 F.3d 634 (6th Cir. 1996), the U.S. Court of Appeals for the Sixth Circuit held that if Congress appropriates funds for general use, then only Congress can limit the uses of those funds by writing those limitations into the statute. If Congress doesn’t limit the funds, then no agency can impose such limits through regulations. So President Obama’s executive order against funding abortion is completely worthless in court.
In the rest of the country it’s an open question as to whether Obamacare funds abortion. Obamacare very likely funds abortion, because the Sixth Circuit’s decision is sound, and so is likely to be adopted by other federal courts to consider the question. Ironically, though, for the four states in the Sixth Circuit–Michigan, Kentucky, Tennessee, and Ohio–there is no question and no doubt. Obamacare funds abortion. And if Ohio Congressman Steve Driehaus says otherwise, then he’s the one who’s lying.