Kansas AG Clears Tiller and Planned Parenthood

Amie Newman

Attorney General Paul Morrison of Kansas announced that a Planned Parenthood clinic and an independent clinic run by Dr. George Tiller were found to have committed no criminal offenses.

Attorney General Paul Morrison of Kansas announced on Tuesday that Planned Parenthood of Kansas and Missouri (PPKM) and an independent clinic run by Dr. George Tiller, both subjects of an intense three-year long investigation, were found to have committed no criminal offenses.

In a letter to the clinic's attorney, Morrison wrote that after conducting an "objective, unbiased and thorough examination … we have found no evidence of any criminal wrongdoing … As a result, we will not be filing any charges …"

In addition, Morrison did not find enough evidence to charge Dr. Tiller with the 30 counts of misdemeanors he had originally been charged with.

The reason given for the intense scrutiny of the clinics, initiated by vocal, anti-choice advocate and former Attorney General Phil Kline involved "potential crimes" against patients. Kline believed that Planned Parenthood was concealing child abuse and rape crimes by not reporting them when patients seeking an abortion revealed them to clinic workers.

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Kline believed that Dr. Tiller was performing illegal late term abortions, though a judge threw those charges out in 2003.

Kline requested information from over 90 patients' medical records from both the Planned Parenthood clinic as well as from the clinic run by Dr. George Tiller, claiming they might provide insight into these alleged crimes.

No one has been able to give an explanation for why abortion clinics should turn over the private medical records of their patients in order to see if some had revealed that they'd been victims of rape or abuse, while private practice medical doctors or other practices should not. If the goal is to "protect" young women and ensure that all health providers are "turning in" young women who have been victims, focusing solely on abortion clinics will do little to remedy the problem.

Attorney General Kline—or anyone for that matter—has no right to private medical records without patient consent—for whatever purpose one deems "necessary." In addition, as far as one can tell, the 90 patient medical records were plucked at random to attempt to unearth evidence from wherever Kline could dredge it up. The records most certainly were not chosen as specific cases of alleged victims of criminal activity—in that case, he could have gone directly to those women for evidence and not had to rely upon medical records. In fact, Kline stated that the women whose records he was seeking were not targets of his investigation.

Planned Parenthood complied fully with the investigation and made clear they had nothing to hide. However, under the umbrella of doctor/patient confidentiality, Planned Parenthood and Dr. George Tiller refused a judge's order to turn over the medical records citing patient privacy and appealed to the state supreme court, who agreed. Eventually, it was referred back to the local judge who mandated that edited records needed to be turned over to Attorney General Kline.

But when Morrison beat out Phil Kline to become Attorney General laast year, many anti-choice advocates expected that he would find Planned Parenthood and Dr. Tiller innocent of any criminal activity.

Unfortunately, the patient's private medical records are still with the local judge's office, though Planned Parenthood will attempt to get them back. Attorney General Morrison informed the clinic that Kline did still have access to the medical records but that Morrison would make every effort to "return all of the original, unredacted medical records" to Planned Parenthood.

There is also talk that Kline, now a district attorney in another Kansas county, may launch a second investigation. Peter Brownlie, CEO of PPKM says Kline's charges are baseless and the investigation is "without legal substance."

Analysis Law and Policy

California Bill Aimed at Anti-Choice Videos Draws Free Speech Concerns

Amy Littlefield

“We wanted to make sure that we updated ... laws to kind of reflect a changing world and to make sure that we actually protect the doctors who provide these important services to women,” California Assemblymember Jimmy Gomez said, adding that his legislation would also protect patient safety and access to abortion.

A California bill that would make it a crime to distribute secret recordings of health-care providers—like the ones David Daleiden used in his smear campaign against Planned Parenthood—has cleared a legislative hurdle, but faces opposition from media groups and civil liberties advocates, who say the legislation is overly broad.

It is already illegal in California to record, whether in audio or video form, a confidential communication without the consent of all parties involved. But California Assemblymember Jimmy Gomez, who introduced AB 1671, told Rewire that while current law specifically forbids the distribution of illegally recorded telephone calls, there is no similar protection for videos.

“We wanted to make sure that we updated those laws to kind of reflect a changing world and to make sure that we actually protect the doctors who provide these important services to women,” Gomez said, adding that his legislation would also protect patient safety and access to abortion.

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AB 1671 makes it a crime if someone who violates California’s existing law against secret recordings “intentionally discloses or distributes, in any manner, in any forum, including, but not limited to, Internet [websites] and social media, or for any purpose, the contents of a confidential communication with a health care provider that is obtained by that person.”

Violators could be jailed for up to a year and fined up to $2,500, penalties similar to those already in place for making illegal recordings. But the new measure specifies that for both recording and distribution, the fines apply to each violation; that means someone like Daleiden, who circulated his videos widely, could quickly rack up heavy fines. Repeat offenders could face fines of up to $10,000 per violation.

The effort to pass the bill comes as abortion providers face a rising tide of threats and secret recordings. Besides Daleiden’s efforts, covertly recorded footage of clinic staff has cropped up in the documentary HUSH and in videos released by the anti-choice group Live Action. Planned Parenthood reported a ninefold increase in harassment at its health centers in July last year, when Daleiden began releasing the deceptively edited videos he claimed showed the organization was illegally profiting from fetal tissue donation. (Multiple federal and state investigations have found no wrongdoing by Planned Parenthood.) The National Abortion Federation recorded an “unprecedented” spike in hate speech and threats against abortion providers last year, peaking with the fatal shooting of three people at a Colorado Springs Planned Parenthood.

Increased Threats

“It was so alarming and so extensive that our staff that normally tracks threats and violence against providers could not keep up,” NAF President and CEO Vicki Saporta told Rewire. The organization was forced to hire an outside security firm.

Beth Parker, chief legal counsel for Planned Parenthood Affiliates of California, told Rewire the new legislation is needed to protect the safety of abortion providers.

“If our providers aren’t safe, then they won’t provide, and we won’t have access to reproductive health care,” Parker said in a phone interview.

Daleiden’s group, the Center for Medical Progress, is based in California, and much of his covert recording took place there. Of the four lawsuits he and his group face over the recordings, three have been filed in federal court in California. Yet so far, the only criminal charges against Daleiden have been lodged in Texas, where a grand jury tasked with investigating Planned Parenthood instead indicted Daleiden and fellow anti-choice activist Sandra Merritt for purportedly using fake California driver’s licenses as part of their covert operation. The charges were later dropped for procedural reasons.

Last summer, California Attorney General Kamala Harris announced plans to review whether the Center for Medical Progress violated any laws, and in April, state investigators raided Daleiden’s apartment. Harris has not yet announced any charges. Daleiden has accused officials of seizing privileged information, a claim the attorney general’s office told Rewire it is working on resolving in court.

Harris, meanwhile is running for Senate; her campaign website describes her as “a champion for a woman’s right to choose.”

“We think there is an excellent case and the attorney general should have prosecuted,” Beth Parker of Planned Parenthood Affiliates of California told Rewire. “Daleiden did more than just publish the videos, as we know, I mean he falsified driver’s licenses, he falsified credit cards, he set up a fake company. I mean, we have, as you know, a major civil litigation against him and his conspirators. I just can’t answer to why the attorney general hasn’t prosecuted.”

Parker said AB 1671 could increase incentives for law enforcement to prosecute such cases.

“What we’ve heard as we’ve been working [on] the bill is that criminal law enforcement almost never prosecutes for the violation of illegal recording,” Parker said. “It’s just too small a crime in their view.”

Assemblymember Gomez also said he hopes his bill will facilitate the prosecution of people like Daleiden, and serve as a deterrent against people who want to use illegal recordings to “undermine the fact that people have this right to have control over their bodies.”

“That’s the hope, is that it actually does change that landscape, that DAs will be able to make a better case against individuals who illegally record and distribute,” Gomez said.

Vicki Saporta of the National Abortion Federation says the actions of law enforcement matter when it comes to the safety of abortion providers.

“There’s certainly a correlation between law enforcement’s response to criminal activity aimed at abortion providers and the escalation or de-escalation of that activity,” Saporta said, citing the federal government’s response to the murders of abortion providers in the 1990s, which included the deployment of federal marshals to guard providers and the formation of a task force by then-Attorney General Janet Reno. “We had more than a decade of decreases in extreme violence aimed at abortion providers, and that ended in 2009 with the murder of Dr. [George] Tiller.”

But media and civil liberties groups, including the Electronic Frontier Foundation and American Civil Liberties Union of California, have expressed concerns the bill could sweep up journalists and whistleblowers.

“The passing of this law is meant to chill speech, right, so that’s what they want to do,” Nikki Moore, legal counsel of the California Newspaper Publishers Association, which opposes the legislation, said in an interview with Rewire. In addition to potential criminal penalties, the measure would create new civil liabilities that Moore says could make journalists hesitant to publish sensitive information.  

“A news organization is going to look at it and say, ‘Are we going to get sued for this? Well, there’s a potential, so we probably shouldn’t distribute it,’” Moore said.

As an example of the kind of journalism that could be affected by the bill, Moore cited a Los Angeles Times investigation that analyzed and helped debunk Daleiden’s footage.

“Planned Parenthood’s bill would criminalize that behavior, so it’s short-sighted of them if nothing else,” Moore said.

Assemblymember Gomez disagrees about the scope of the bill. “We have tailored it narrowly to basically say it applies to the person who illegally recorded the video and also is distributing that video, so it doesn’t apply to, say, a news agency that actually ends up getting the video,” he said.

Late last week, the California Senate Appropriations Committee released AB 1671 to the state senate floor on a vote of 5 to 2, with Republicans opposing it. The latest version has been amended to remove language that implicated “a person who aids and abets” the distribution of secret recordings, wording civil liberties groups said could be used to sweep in journalists and lawyers. The latest draft also makes an exception for recordings provided solely to law enforcement for investigations.

But the ACLU of California and the California Newspaper Publishers Association said they still oppose the bill. (The Electronic Frontier Foundation said it is still reviewing the changes.)

“The likelihood of a news organization being charged for aiding and abetting is certainly reduced” under the new language, Moore said. But provisions already exist in the California penal code to implicate those accused of aiding and abetting criminal behavior.

“You can imagine scenarios where perhaps the newspaper published it and it’s an anonymous source, and so now they’re aiding and abetting the distribution, and they’re the only person that the prosecutor knows might have been involved,” Moore says.

In letter of opposition sent in June to Assemblymember Gomez, Kevin Baker, legislative director of the ACLU of California, raised concerns about how the measure singles out the communications of health-care providers.

“The same rationale for punishing communications of some preferred professions/industries could as easily be applied to other communications —e.g., by law enforcement, animal testing labs, gun makers, lethal injection drug producers, the petroleum industry, religious sects,” Baker wrote.

Gomez said there could be further changes to the bill as talks aimed at resolving such opposition continue. An earlier version passed the assembly easily by a vote of 52 to 26. The latest draft faces an August 31 deadline to pass the senate and a concurrence vote in the assembly before the end of the session. After that, Gomez said he hopes California Gov. Jerry Brown (D) will sign it.

“If we can strike the right balance [between the rights of privacy and free speech], my hope is that it’s hard for him not to support it,” Gomez said. 

News Family Planning

Judge Thwarts Ohio GOP’s Attack on Planned Parenthood Funding

Michelle D. Anderson

“This law would have been especially burdensome to communities of color and people with low income who already often have the least access to care—this law would have made a bad situation worse,” said Iris E. Harvey, president and CEO of Planned Parenthood of Greater Ohio.

An effort to defund Ohio Planned Parenthood affiliates by Gov. John Kasich (R) and the Republican-held legislature has come to an end.

Judge Michael R. Barrett of the U.S. District Court of the Southern District of Ohio on Friday ruled in Planned Parenthood’s favor, granting a permanent injunction on an anti-choice state law.

The court ruling will keep Richard Hodges, the Ohio Department of Health director, from enforcing HB 294.

The 2015 law, sponsored by Rep. Bill Patmon (D-Cleveland) and Rep. Margaret Conditt (R-Butler County), would have redirected $1.3 million in state and federal taxpayer funds from Planned Parenthood’s 28 clinics in Ohio.

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The law would have required the state department to keep federal funds and materials that the health department receives from being distributed to entities that perform or promote non-therapeutic abortions, or maintain affiliation with any entity that does.

Funding that would’ve been cut off from the state health department went to the Violence Against Women and Breast and Cervical Cancer Mortality Prevention acts, the Infertility Prevention Project, Minority HIV/AIDS and Infant Mortality Reduction initiatives, and the Personal Responsibility Education Program.

Planned Parenthood in a lawsuit argued that the Republican legislation violated the First Amendment and the Due Process Clause and Equal Protection Clause of the 14th Amendment.

Barrett had temporarily blocked the law after Planned Parenthood affiliates filed the lawsuit and requested a preliminary injunction. The judge had issued an opinion contending that some legislators passed the law to make it difficult for people to access abortion care, as Rewire reported.

Iris E. Harvey, president and CEO of Planned Parenthood of Greater Ohio, praised the judge’s temporary order.

“This law would have been especially burdensome to communities of color and people with low income who already often have the least access to care—this law would have made a bad situation worse,” Harvey said in a statement.

Kellie Copeland, NARAL Pro Choice Ohio’s executive director, said in a statement that the Ohio legislature passed the anti-choice measure in an effort to appeal to conservative voters in early primary states during Kasich’s presidential campaign.

Copeland said that while the legislation made no effort to reduce the number of abortions performed, “it actively blocked critical health care for low-income women and families.”

Planned Parenthood said those services included 70,000 free STD screenings, thousands of HIV tests for at-risk community residents, and the largest infant mortality prevention program in the state.

In the 23-page court order and opinion, Barrett, an appointee of President George W. Bush, acknowledged that the law would have deterred “patients from seeking these potentially life-saving services.”

Planned Parenthood noted that the recent ruling in Ohio makes it among the ten states where courts have blocked anti-choice laws following June’s landmark Whole Woman’s Health v. Hellerstedt U.S. Supreme Court ruling.

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