For many reproductive rights advocates and journalists who cover these issues, Monday and Thursday mornings have become something of an anxious game of wait and see. The Supreme Court issues opinions at 10 a.m. on these days, and it is expected to hand down its opinion in Sebelius v. Hobby Lobby and a decision on buffer zones before the month is out.
But Monday’s set of opinions included a pretty significant reproductive rights development, and whereas Hobby Lobby and buffer zones have made national headlines, the Ohio case the court weighed in on today has flown mostly under the radar.
Here’s what’s at stake, and why it matters:
Ohio has something called a “false statements” law, which prohibits political campaign ads from featuring straight up lies or inaccurate representations of a candidate’s voting record. As Jessica Mason Pieklo notes at RH Reality Check, it was this law that kept the Susan B. Anthony List (SBA) — a conservative anti-choice group — from putting up billboards accusing a Democratic state representative of voting for so-called taxpayer funded abortion services because he supported the Affordable Care Act (ACA).
Taxpayer funded abortion is actually a really good thing and something that we should definitely do in this country, but it is not something that we do in this country. Federal Medicaid funds are banned from covering abortion except in cases of rape, incest or a life threatening pregnancy, though 14 states do allow state Medicaid money to cover abortion in certain cases. In Ohio, public abortion funding is only available in cases of rape, incest or life endangerment.
SBA challenged this prohibition on its billboard, arguing in federal court that it really sincerely believed that the Democratic state representative supported taxpayer funding for abortion because of his support for the ACA and that the “false statements” law was a violation of its rights under the First Amendment. (For those paying attention, the “I really believe this to be true” thing works really well for anti-choice and anti-reproductive rights groups. Hobby Lobby sincerely believes that contraception is the same thing as abortion even though the medical evidence has repudiated this time and again, and lawmakers in states across the country sincerely believe that a fetus can experience pain at 20 weeks even though medical evidence has repudiated this time and again. Legislators in Texas, Louisiana and elsewhere sincerely believe that shuttering clinics makes abortion safer, even though the opposite has been shown to be true. It’s a total mess, and it usually works in the favor of groups that want to scale back access to reproductive healthcare.)
Here’s Mason Pieklo — a senior legal analyst at RH Reality Check — nicely summarizing how this works in the SBA case and others before the court right now:
And in this case, they want, ultimately, a First Amendment right to lie about the law — here the perennial favorite for scare-mongering, taxpayer funding for abortion — in addition to a candidate’s record.
To get there, in each of these cases, the anti-choice right has claimed in some way that the actual facts of a particular issue don’t matter as much as their reasonable belief of those facts do. In Hobby Lobby, the challengers argued that it didn’t matter that the medical science undisputedly shows Plan B is not an abortifacient. What mattered, they claimed, was that they reasonably believed that it did. In McCullen, those challenging the constitutionality of buffer zones argued that it didn’t matter that most clinic protesters are not “plump grandmas” who like to “speak softly” to patients and providers at health-care clinics. What matters is their reasonable belief that “sidewalk counseling” is not a form of wholesale assault. And here, it doesn’t matter that the SBA List can’t show that the Ohio law actually chilled their speech by preventing them from running the billboards. What matters, they claim, is their reasonable belief that it would.
What the Monday opinion from SCOTUS means is that SBA has standing to challenge the law, even though the lawsuit against them never actually went through and so the group never faced any penalties under the law. What happens next — as the case returns to the lower courts — may set a serious precedent for campaign speech. More to come as the case develops.