By Peter J. Smith

COLUMBUS, Ohio, October 26, 2010 ( – A federal judge has declined Susan B. Anthony List’s request to rule on the constitutionality of an Ohio election law that makes it a criminal offense to make a false statement about a political candidate during an election.

U.S. Rep. Steve Driehaus (OH-1) has been locked in a battle with the SBA List over four billboards the national pro-life campaign group wanted to erect in his district. SBA List contends that Driehaus voted to allow taxpayer funding of abortion when he joined U.S. Rep. Bart Stupak and 11 other pro-life Democrats to pass the Affordable Care Act (also known as “ObamaCare” by its critics).

Last week, a three-member panel of the Ohio Elections Commission found “probable cause” for Driehaus’s claim that SBA List had violated an Ohio elections law that forbids the making of a “false statement” about a political candidate during an election cycle. (see coverage)

The panel recommended that the matter go to the full commission, which is expected to take up the matter at its next meeting scheduled for October 28. If the elections commission finds in favor of Driehaus, they may either issue a public reprimand of SBA List or refer the matter to the local county prosecutor for criminal proceedings.

Under Ohio election law, the maximum penalty for making a criminally false campaign statement is six months in jail and/or a $5,000 fine.

SBA List asked the federal court to intervene and place a temporary restraining order on the Ohio elections committee’s proceedings, arguing that the statutes applied against them were chilling their right to free speech and discouraging people from running their ads.

But U.S. District Judge Timothy Black for Ohio’s Southern District did not agree with the pro-life campaign group’s arguments and refused to intervene in the case.

Black also said he did not see how he could intervene as the outcome of case was still pending with the Ohio Elections Commission and he did not believe SBA-List had demonstrated the danger of immediate, irreparable harm.

SBA List attorney James Bopp, jr., who also litigated the Citizens United case, explained to the Washington Independent, that their main concern about the law is that having government decide which side is making true or false statements is a dangerous business.

“[T]ruthful communications would be subject to the process just as false ones would be — they would be dragged though this whole process as well,” Bopp said.

In response to Black’s ruling, SBA List President Marjorie Dannenfelser reiterated her stance that Driehaus’s vote for the Affordable Care Act was a vote for taxpayer-funded abortion.

“Steve Driehaus does not want his constituents to hear that he voted for a bill that provides for tax dollars to pay for abortions,” said Dannenfelser, “but the fact that he did is a position held by the National Right to Life Committee, Americans United for Life, United States Conference of Catholic Bishops, Ohio Right to Life and numerous other organizations and policy experts.”

The American Civil Liberties Union (ACLU) of Ohio actually filed an amicus brief on SBA List’s behalf, saying the Ohio elections law was “unconstitutionally vague and overbroad” and chilled free speech.

However Democrats for Life welcomed Black’s ruling, and asserted that SBA List and other pro-life groups were waging a “campaign of misinformation regarding the health care bill and pro-life Democrats” in order to elect a Republican-dominated Congress in November.

“[T]he truth is there is no Federal funding for abortion in the Health Care bill,” said Kristen Day, Executive Director of Democrats for Life of America.

“Pretending to be bi-partisan while lying to defeat pro-life Democrats is simply not a good strategy to advance the pro-life movement in America,” she added.

Not all Democrats, however, have agreed with Day and Stupak’s analysis of the health care law and the executive order.

One pro-life Democrat, U.S. Rep. Dan Lipinski, broke with Stupak over the issue and voted against the bill saying Obama’s executive order probably would not stand up to judicial scrutiny. He stated that it only covered the direct funding of abortion at Community Health Centers, but not the abortion fees for health plans subsidized by the state-run health exchanges.

See related coverage by

Setback: Ohio Election Board Rules against Pro-Life SBA List

Dem Candidate Charges SBA List with Criminally Misleading Ads: NRLC Responds