RealTime: Phill Kline Goes After Planned Parenthood Again

Brady Swenson

Former Kansas Attorney General, now District Attorney, Phill Kline is at it again. Yesterday Kline filed 106 misdemeanor and felony charges against Planned Parenthood in Kansas City.

As the Attorney General of Kansas, Phill Kline very publicly pursued charges against George Tiller's Wichita reproductive health clinic, which included an attempted subpoena of private medical records eventually shot down by the state's Supreme Court. Tiller and his clinic were cleared of any wrongdoing by current Kansas Attorney General Paul Morrison, who easily unseated Phill Kline in last year's election. After losing to Morrison, Kline quickly moved to Kansas City to take over the district attorney's chair in Johnson County.

From that chair yesterday Kline filed dozens of charges against Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri. His office has yet to comment on the filing.

Planned Parenthood's president and chief executive officer Peter Brownlie said the clinic does not perform any abortion after the twenty-second week of pregnancy. "We always provide high-quality care in full accord with state and federal law," Brownlie told the AP.

Four months ago Attorney General Morrison closed an investigation of Planned Parenthood and told its attorneys he had found no wrongdoing by the clinic or its personnel.

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"The attorney general did a thorough review of Planned Parenthood and found no wrongdoing," said Morrison spokeswoman Ashley Anstaett. "We are skeptical that these charges have any merit, and we continue to wonder how much politics influenced Mr. Kline's decision to file these charges."

Analysis Law and Policy

After a Year, What Has the Smear Campaign Against Planned Parenthood Accomplished?

Jessica Mason Pieklo & Imani Gandy

One year after David Daleiden and the Center for Medical Progress released the first of a series of videos targeting Planned Parenthood, there is still no evidence of wrongdoing by the reproductive health-care provider.

See more of our coverage on the anti-choice front group, the Center for Medical Progress here.

One year ago, David Daleiden released the first in a series of videos that he claimed proved Planned Parenthood employees were unlawfully profiting from fetal tissue donation and violating the federal “partial-birth abortion” ban. With the backing and counsel of Operation Rescue President Troy Newman and the help of a woman named Sandra Merritt, among others, Daleiden had created a front group called the Center for Medical Progress (CMP).

He then disguised CMP as a legitimate biomedical research organization—despite overwhelming evidence, including CMP’s own corporate documents, to the contrary—and used it to gain access to abortion clinics and private meetings. The organization released 11 videos by the end of 2015; in a year’s time, Daleiden and CMP had released a total of 14 videos. All have been debunked as deceptively edited and misleading.

So what have those videos truly accomplished? Here’s a summary of the fallout, one year later.

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Lawmakers Mounted Attacks on Planned Parenthood

In response to CMP’s videos, more than a dozen conservative governors launched investigations into or tried to defund Planned Parenthood affiliates in their states. States like Arkansas, Kansas, and Utah had their attempts to defund the reproductive health-care centers blocked by federal court order. The Obama administration also warned states that continuing to try and strip Medicaid funding to Planned Parenthood centers violated federal law, though that did not stop such efforts throughout the country.

Additionally, congressional Republicans began their own investigations and defunding efforts, holding at least five separate hearings and as many defunding votes. Planned Parenthood Federation of America (PPFA) President Cecile Richards provided hours of congressional testimony on the lawful fetal tissue donation option available to some Planned Parenthood patients. Other affiliates do not offer such donation programs at all.

Not a single investigation at either the state or federal level has produced evidence of any wrongdoing. Still, many continue today. To date, Congress alone has spent almost $790,000 on the matter.

Violence Against Clinics Escalated

Just weeks after CMP released its first video, there was an act of arson at a Planned Parenthood health center in Aurora, Illinois. The following month, and after the release of three more smear videos, a car fire broke out behind a locked gate at Planned Parenthood in New Orleans. Abortion clinic staff and doctors around the country reported a significant uptick in threats of violence as Daleiden and CMP released the videos in a slow drip.

That violence spiked in November 2015, when Robert Lewis Dear Jr. was arrested for opening fire at a Colorado Springs Planned Parenthood, a siege that left three dead. Dear told investigating officers his violence was “for the babies” because Planned Parenthood was “selling baby parts.” A Colorado court has so far deemed Dear incompetent to stand trial. Dear’s siege was not the last incident of clinic violence apparently inspired by Daleiden and CMP, but it has, to date, been the most lethal.

Dear’s next competency hearing is currently scheduled for Aug. 11.

A Lot of Lawsuits Got Filed

The tissue procurement company StemExpress and the National Abortion Federation (NAF) filed suits in July of last year. In January 2016, Planned Parenthood did the same, alleging that Daleiden and CMP had engaged in conspiracy and racketeering, among other things.

StemExpress Sued Daleiden and CMP

StemExpress, one company to whom Planned Parenthood was supposedly selling tissue, sued CMP, Daleiden, and Merritt in California state court. StemExpress asked the court for an injunction blocking CMP from releasing any more videos that were surreptitiously recorded at meetings the pair of anti-choice activists had with StemExpress staff. The complaint also included allegations of conspiracy, invasion of privacy, and conversion of property (based upon Daleiden’s taking confidential information from a former StemExpress employee, including accessing her StemExpress email account after she was no longer employed at the company).

Although it issued a temporary restraining order (TRO), the court ultimately declined to convert that into an injunction, citing First Amendment concerns that to do so would constitute prior restraint, or pre-publication censorship, on Daleiden and Merritt’s right to free speech. In other words, Daleiden and Merritt are free—at least under this court order—to continue releasing videos involving StemExpress employees while the suit proceeds.

The case is set for trial in January 2017.

National Abortion Federation Sued Daleiden and CMP

About the same time that CMP and Daleiden were battling StemExpress in court, NAF filed suit in federal court in San Francisco, alleging civil conspiracy, racketeering, fraud, and breach of contract, among other claims. Like StemExpress, NAF sought a temporary restraining order blocking any further release of the attack videos. Judge William Orrick issued the TRO and later, after a protracted discovery battle, converted it into a preliminary injunction. Thus, CMP is prohibited from publishing any videos of footage taken at NAF’s annual meetings, which Daleiden and Merritt infiltrated in 2014 and 2015, while the suit proceeds.

As they had in their battle with StemExpress, Daleiden and CMP claimed that prohibiting publication of the videos constituted a prior restraint on speech, in violation of the First Amendment. But unlike StemExpress, which was trying to prohibit the publication of videos detailing conversations that took place in a restaurant, NAF sought to prohibit publication of video footage secretly recorded at meetings. Judge Orrick found that Daleiden had waived his First Amendment rights when he signed a confidentiality agreement at those meetings promising not to disclose any information he gained at them.

And, as in other court battles, one of the preeminent claims Daleiden and his cohorts raised to excuse his tactics—creating a fake tissue procurement company, assuming false identities through the use of false identification cards, getting people drunk in order to elicit damaging statements from them, and signing confidentiality agreements with no intention of following them—was that Daleiden is an investigative journalist.

Judge Orrick condemned this argument in strong terms: “Defendants engaged in repeated instances of fraud, including the manufacture of fake documents, the creation and registration with the state of California of a fake company, and repeated false statements to a numerous NAF representatives and NAF members in order to infiltrate NAF and implement their Human Capital Project. The products of that Project—achieved in large part from the infiltration—thus far have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions (at least with respect to the NAF materials) of criminal misconduct. Defendants did not—as Daleiden repeatedly asserts—use widely accepted investigatory journalism techniques.”

In an amicus brief in the same lawsuit, submitted to the Ninth Circuit Court of Appeals in early June, 18 of the country’s leading journalists and journalism scholars noted that “by calling himself an ‘investigative journalist,’ Appellant David Daleiden does not make it so.”

“We believe that accepting Mr. Daleiden’s claim that he merely engaged in ‘standard undercover journalism techniques’ would be both wrong and damaging to the vital role that journalism serves in our society,” the journalists and scholars continued.

Daleiden and CMP have appealed the preliminary injunction order to the Ninth Circuit Court of Appeals, where the case currently sits pending a decision.

Planned Parenthood Sued Daleiden and CMP

Six months after StemExpress and NAF filed their lawsuits against the orchestrators of the smear campaign, PPFA filed a whopping one of its own in California federal court, alleging civil conspiracy, racketeering, fraud, trespass, and breach of contract, among other civil and criminal allegations. PPFA was joined by several affiliates—including Planned Parenthood of the Rocky Mountains, where Dear was arrested for opening fire in November.

Daleiden has asked the court to dismiss Planned Parenthood’s claims. The court has so far declined to do so.

David Daleiden and Sandra Merritt Were Indicted on Felony Charges

Daleiden and his allies have not fared well in the civil lawsuits filed against them. But both Daleiden and Merritt also have pending criminal cases. After an investigation into Planned Parenthood Gulf Coast sparked by Daleiden’s claims, a Texas grand jury declined to indict the health-care organization for any criminal conduct. The grand jury instead returned an indictment against Daleiden and Merritt on a felony charge of tampering with a governmental record, related to their use of false California driver’s licenses in order to gain entrance into the clinic. Daleiden was additionally charged with a misdemeanor count related to the purchase or sale of human organs.

In June, Harris County Criminal Court at Law Judge Diane Bull dismissed the misdemeanor charge. Daleiden and Merritt’s attorneys, who called the dismissal a victory for the anti-choice movement, are still trying to get the felony charged dismissed.

News Law and Policy

Missouri GOP Claims ‘Sloppy Record Keeping’ Could Indicate Planned Parenthood Wrongdoing

Michelle D. Anderson

Though the senate's Republican-led Interim Committee on the Sanctity of Life stopped short of outright accusing Planned Parenthood of the St. Louis Region and Southwest Missouri (PPSLR) of selling fetal tissue, its members pointed to what they called "serious gaps" in the affiliate's record as an indication of potential wrongdoing.

A special Missouri State Senate committee released the results of its months-long investigation of a local Planned Parenthood affiliate Tuesday, continuing to push the notion that the reproductive health-care provider could be breaking the law in its handling of fetal tissue.

In September, Missouri Attorney General Chris Koster affirmed that Planned Parenthood of the St. Louis Region and Southwest Missouri (PPSLR) was handling fetal tissue in accordance with Missouri law.

Even so, though the senate’s Republican-led Interim Committee on the Sanctity of Life stopped short this week of outright accusing the St. Louis clinic of selling fetal tissue, its members pointed to what they called “serious gaps” in the affiliate’s record as an indication of potential wrongdoing.

The committee, which formed last year in response to widely discredited Center for Medical Progress (CMP) videos accusing Planned Parenthood of profiting from fetal tissue donations, also released a nine-page report outlining its investigation. CMP’s founder, David Daleiden, was indicted earlier this year on felony charges in connection with the videos’ creation.

The committee’s chairperson, Sen. Kurt Schaefer (R-Columbia), said in a Tuesday press conference that Planned Parenthood could be obfuscating critical information and criticized the clinic of “sloppy record keeping.”

Schaefer, who also panned the recent Supreme Court decision to strike down provisions of an anti-abortion law in Texas, zeroed in on PPSLR’s use of formalin, a preservative that renders fetal tissue donation impossible.

The senate committee, Schaefer said, could not determine whether samples of the affiliate’s fetal tissue sent to the state pathologist had been immersed in formalin and speculated that Planned Parenthood could be using the preservative in a way that allows fetal tissue to be used illegally. The written report noted that although the health-care provider is only legally required to send a “representative sample” to the pathologist, PPSLR often delivered the entire fetus—suggesting to the committee that there could somehow be a sale involved along the line.

PPSLR issued a statement on Tuesday in response to the press event and the committee’s reported findings, saying that it does not, has not, and will never sell fetal tissue.

“Today’s press conference is just more of the same, as political opportunists in the Missouri Senate signaled their desire to shame Missouri women and men, and deny them access to quality, expert, legal health care instead of focusing on the priorities of the people of our state. The time for them to move on from this sham has long since passed,” the statement read.

Ultimately, Schaefer and his peers, including Sen. Eric Schmitt (R-Glendale) and Sen. Jeanie Riddle (R-Callaway County), concluded that the committee’s investigation potentially contradicted the attorney general’s investigation last year.

In order to conduct its investigation, the Interim Committee on the Sanctity of Life had subpoenaed Planned Parenthood documents just a month after Koster cleared the St. Louis affiliate of any legal wrongdoing.

PPSLR provided the documents in May, giving senate officials until June 20 to review the information, according to a news report by KOLR-TV of southwest Missouri.

Not long before receiving the documents, the Interim Committee on the Sanctity of Life had attempted to punish Mary Kogut, president and CEO of PPSLR, with fines and jail time because the clinic refused to hand over clinic documents in attempt to protect patient privacy.

Other committee members on Tuesday criticized Planned Parenthood for allegedly endangering pregnant persons during emergencies by not writing “9-1-1” in large enough font on instruction documents for patients, and said the clinic should elaborate on its use of its digoxin in the second trimester and whether fetal tissue is injected with the drug before abortion procedures. Abortion clinics often use digoxin to comply with the federal Born-Alive Infants Protection Act of 2002.

Many Democratic lawmakers and pro-choice institutions have said the committee’s investigation is part of an ongoing attack against abortion care throughout the state. More than a dozen state and federal investigations have not found Planned Parenthood guilty of any wrongdoing.

Earlier this year, the Missouri legislature failed to pass an anti-abortion “personhood” amendment that would have led to a ballot measure in November. If approved by voters, the law would have ended legal abortion in the state by adding fetuses to the list of Missouri residents who have a “natural right to life.”