Common Ground? The Evidence, Please

Frances Kissling

Can we truly say we have found common ground on family planning when all we have done is found a few people who disagree with us on reproductive rights as human rights are able to support a bill that provides family planning funding?

There have probably been more than enough articles on
Rewire on "common ground" on abortion. I am loathe to add one more, but
motivated by the kind words my colleague and friend Rachel Laser had to say
about my support for the Ryan-DeLauro bill – the Reducing the Need for Abortion
and Supporting Parents Act – I thought I’d better weigh in.

These days just about everything that has anything to do
with family planning or government support for pregnant women is deemed "common
ground." This is an inaccurate use of the term. For example, I support the Ryan-DeLauro
bill, not because it brings together opponents and supporters of the right to
choose abortion (and it is a stretch to claim that it has done that) but
because it contains many provisions that would help women and girls avoid
pregnancy when they want to and expand benefits for women who want to continue
their pregnancies. The bill is not perfect; it is not comprehensive and it is
by no means model abortion rights legislation. Neither is Prevention First, a
similar bill that is the brainchild of Rep. Louise Slaughter and former Sen. Hillary
Clinton; Prevention First does more than Ryan-DeLauro to
provide contraception to women, but it does not include support for women who
wish to continue their pregnancy. But no bill needs to do everything, and
either or both these bills, if they ever made it to committee hearings and the
floor of the Congress, would represent substantial improvements in meeting
women’s needs.

The choice community is more favorably inclined to
Prevention First because it avoids the "Reducing the Need" framing, which is not
contextualized from a woman’s rights perspective. Ryan-DeLauro also includes
some troubling provisions around expanding the availability of medically unnecessary ultrasounds and
providing less than objective assistance to women who are carrying fetuses diagnosed
with abnormalities. (For example, Ryan-DeLauro does not mention abortion as one of the appropriate
choices a woman might make if she finds out through ultrasound or other
diagnostic tests that she is carrying a fetus with disabilities.) And there is specific
concern that anti-choice groups who operate crisis pregnancy centers have used
ultrasound manipulatively and will now get government money to expand that practice.
The bill tries to protect against such use by setting criteria for grantees
such as the provision of objective and scientifically accurate information, but
we all know that there is a gap between how legislation is written and how it
is regulated. (When proponents and opponents of comprehensive sexuality
education participated in a Ford Foundation common ground project, they could
not even agree on what constituted factually accurate information or objective
research findings.)

I have chosen not to quibble and to ardently support both
bills. I wish Prevention First also addressed women who need help continuing a pregnancy,
but not all things are possible.  I think
it is urgent that the pro-choice community, which has been the major advocate
of the range of reproductive choices and needs, do more. But it is hard to
claim that those opposed to abortion have been advocating for
comprehensive sexuality education, reducing maternal mortality or providing
family planning in the US or overseas.

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We can do all of this as pro-choice people and
organizations. We can do it without making common cause with those who disagree
with us on the underlying principles that inform positions on all the
reproductive health issues. In fact, there is something to be said for parallel
tracks on the family planning issue: with those who support family planning
because it is a woman’s right to control her fertility making clear and
separate values arguments, while those who support it because they want to see
fewer abortions making their case. We don’t even agree on whether or not there
is ever a need for abortion. Rev. Jim Wallis, one of the most widely-quoted spokespeople claiming that we have found common ground on reducing abortions, objects to
language that says we should reduce the need for abortion and believes there is
never a need for abortion other than to save a woman’s life.  Can we truly say we have found common ground
on family planning when all we have done is found a few people who disagree
with us on reproductive rights as human rights are able to support a bill that
provides family planning funding?

And we really want to be sure that people don’t
think such narrow and heavily caveated support for family planning is "new
ground" for us. Along with many supporters of abortion rights, I fought against
welfare reform, which took women away from their children or denied them
support. I worked for family planning, comprehensive sexuality education and
economic justice and jobs for women. I never needed to stand next to the
Catholic bishops or any other anti-choice group in order to be effective, although I respect them when
they work for things that help women.

After reading Rachel’s article, which situates Ryan-DeLauro
as a common ground bill, I looked at the record on the legislation’s supporters
in Congress and among interest groups. The article mentioned a link that would provide
me that information, but it wasn’t there when I looked. Rachel, it would be great if you could provide more specific info about
the way in which Ryan-DeLauro has added a significant number of supporters for
family planning to the field.
Frankly, I just don’t see it.

Let’s take a look at who in the House has supported the
bill. And let’s remember that in spite of all the hype from the Third Way,
Faith in Public Life, Sojourners and the Catholic Alliance for the Common
Good, the common ground advocates who support all or part of the bill, the bill
which was first introduced in 2005/6 has not gotten a hearing or vote in the House
Health Education and Labor committee to which it has been assigned, has not
made it to the house floor and has no companion bill on the Senate side. I
point these things out reluctantly as I adore Rosa DeLauro and Tim Ryan, but
the facts are the facts. Nor has the bill gained the support of even a handful
of heavy hitter anti-abortion members of Congress.  It
has not a single co-sponsor who is a Republican. Of the 27 out of 435 members
of the house who support it, four have mixed records on abortions, four are
anti-choice and only one, Dale Kildee, opposed family planning before he signed
on to this legislation. Not much progress here.

If Ryan-DeLauro were being actively or passively supported
by organizations opposed to abortion or more accurately opposed to family
planning and economic justice for mothers and children, I’d count that as another
indicator of success. If those new groups got off their butts and away from the press releases praising themselves for ending the nonexistent abortion war long enough to hold lobby days, issue
written statements of support or visit Republicans and anti-family planning
members of Congress to get them to sign on, that would be progress. In fact
that is not the case. In 2007, Third Way circulated a list of "supportive
organizations" behind Ryan-DeLauro (it seems to be the most current list, but
updates appreciated). Enumerating "supportive organizations" is a smarmy way a
group that doesn’t have full support or written statements sometimes tries to
beef up its list of sponsors. I don’t know the full story behind this list, but I do know that
one of the groups listed, Catholics in Alliance for the Common Good, is so far
out of the mainstream of Catholic practice that it only supported those parts of
the bill that provide support for women who continue pregnancy and not for family
planning. If the common grounders can’t convince social justice Catholic groups
to take the position about 95% of Catholics hold on family planning which is
that it is moral and should receive government support then I am not sure they
have found much common ground, nor are they very effective lobbyists. Listed as
supporters are some major choice groups such as NARAL, RCRC, CFC and the
Religious Institute and Protestants for the Common Good. Of course Third Way,
which is pro-choice, is also listed. I am not sure why PPFA and other pro-choice
groups are not listed. It is not clear if they have endorsed the bill or if Third
Way feared that a list that included all the pro-choice groups would appear unbalanced.
Anti-abortion groups that support the bill are few and it is not clear how much of the bill they actually support.
Three anti-abortion groups are listed: Sojourners, Redeem the Vote and the
previously mentioned Catholics in Alliance.

Rachel also argues that Rev. Joel Hunter, a courageous evangelical
pastor who stepped down as head of the Christian Coalition because he was seen
as "too liberal" on poverty and the environment and has emerged as a leader in
evangelical circles, supportive of Obama and member of the President’s Council
on Faith Based and Neighborhood partnerships, changed his position on family
planning and sex education, but she provides no citation to back this up nor
does she give any specifics. Now, let’s be clear – among Christians, only the
Catholic Church is opposed to the use of contraceptives by married couples. So
I really need to know: what is different about Joel Hunter’s position,
especially given his opposition to lifting the global gag rule? And if there
are others who have changed their position precisely what is the change?  I am scouring the web sites, including that of
Hunter’s church, Northland, and I’m not seeing anything that indicates a shift on
the issue. I raise these issues not to denigrate the work Third Way and others
are engaged in, but to hold them to the standard of evidence we all apply when
we are evaluating the success of a political effort. I want examples and data,
not just press releases with vague claims of having changed many minds or made

So far I don’t see evidence of success.  I would respectfully suggest that those who
are pushing Ryan-DeLauro or the general theme of reducing the need for abortion
as an advance in ending the war over abortion have a lot of work to do before
they set themselves up as the new change agents on the issue – and certainly
before they criticize the strategy of the pro-choice movement.

There are serious analytical questions that have not yet
been answered by those who urge a common ground agenda on abortion or
reproductive health – and that includes the President. The definition of common
ground is weak. Common ground on abortion seems to mean ignoring abortion.

I find my reactions to this current effort somewhat ironic.
From my first days at Catholics for Choice, I reached out to those who disagree
with me. I invited those opposed to abortion to the office to discuss the issue
and present their views; I supported the Public Conversation Project efforts to
bring pro-choice and pro-life people together and even dialogued with their
facilitation with a colleague on the other side. I think it is those
experiences that make me wary of the current effort and somewhat disappointed
in the rather shallow approach to common ground that is being fostered
especially by religious groups.

Anyone who has seriously engaged the "other" knows how hard
it is to really find common ground. It is facile to say, "We all agree that
reducing the need for – or number of – abortions would be a good thing" and
conclude that therefore we have common ground. We may not have common ground at
all. If one set of people believes that the reason to reduce the number of
abortions is because abortion is murder and the other believes the reason to
reduce the need for abortion is because women prefer to prevent pregnancy
rather than to have an abortion, although abortion is a morally justifiable
act, we do not have common ground.

Perhaps those who think they have found common ground on
abortion have actually found common ground on political expediency. They want
to take abortion out of the political arena – some because they want to talk
about other more "important" issues and some because they think abortion is a
political loser. The reality is we need more talk about abortion, not less.
Moreover, while we could do without a culture "war" on abortion we cannot do
without an ongoing cultural debate about abortion, however annoying it may be
to candidates for public office. There are important values at stake in the way
we think about and what we believe about abortion. Whether or not we change
anyone’s mind, coming to understand our differences and respect them is a good thing.
It is not however common ground. It is rather common decency. Struggling for
public policy that reflects our values rather than sweeping them under the rug
is the principled course of action for both those who support the right to choose
and those who oppose it.

Analysis Politics

Anti-Choice Democrats Employ ‘Dangerous,’ Contradictory Strategies

Ally Boguhn & Christine Grimaldi

Democrats for Life of America leaders, politicians, and rank-and-file supporters often contradict each other, and sometimes themselves, exposing a lack of coherent strategy at a time when the Democratic Party's platform is newly committed to increasing abortion access for all.

The national organization for anti-choice Democrats last month brought a litany of arguments against abortion to the party’s convention. As a few dozen supporters gathered for an event honoring anti-choice Louisiana Gov. John Bel Edwards (D), the group ran into a consistent problem.

Democrats for Life of America (DFLA) leaders, politicians, and rank-and-file supporters often contradicted each other, and sometimes themselves, exposing a lack of coherent strategy at a time when the Democratic Party’s platform is newly committed to increasing access to abortion care for all.

DFLA leaders and politicians attempted to distance themselves from the traditionally Republican anti-choice movement, but repeatedly invoked conservative falsehoods and medically unsupported science to make their arguments against abortion. One state-level lawmaker said she routinely sought guidance from the National Right to Life, while another claimed the Republican-allied group left anti-choice Democrats in his state to fend for themselves.

Over the course of multiple interviews, Rewire discovered that while the organization demanded that Democrats “open the big tent” for anti-choice party members in order to win political office, especially in the South, it lacked a coordinated strategy for making that happen and accomplishing its policy goals.

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Take, for example, 20-week abortion bans, which the organization’s website lists as a key legislative issue. When asked about why the group backed cutting off abortion care at that point in a pregnancy, DFLA Executive Director Kristen Day admitted that she didn’t “know what the rationale was.”

Janet Robert, the president of the group’s executive board, was considerably more forthcoming.

“Well, the group of pro-life people who came up with the 20-week ban felt that at 20 weeks, it’s pretty well established that a child can feel pain,” Robert claimed during an interview with Rewire. Pointing to the U.S. Supreme Court’s ruling in Roe v. Wade, which protected the right to legal abortion care before the point of fetal viability, Rogers suggested that “more and more we’re seeing that children, prenatal children, are viable around 20 to 22 weeks” of pregnancy.

Medical consensus, however, has found it “unlikely” that a fetus can feel pain until the third trimester, which begins around the 28th week of pregnancy. The doctors who testify otherwise in an effort to push through abortion restrictions are often discredited anti-choice activists. A 20-week fetus is “in no way shape or form” viable, according to Dr. Hal Lawrence, executive vice president of the American Congress of Obstetricians and Gynecologists.

When asked about scientific findings that fetuses do not feel pain at 20 weeks of pregnancy, Robert steadfastly claimed that “medical scientists do not agree on that issue.”

“There is clearly disagreement, and unfortunately, science has been manipulated by a lot of people to say one thing or another,” she continued.

While Robert parroted the very same medically unsupported fetal pain and viability lines often pushed by Republicans and anti-choice activists, she seemingly acknowledged that such restrictions were a way to work around the Supreme Court’s decision to make abortion legal.

“Now other legislatures are looking at 24 weeks—anything to get past the Supreme Court cut-off—because everybody know’s it’s a child … it’s all an arbitrary line,” she said, adding that “people use different rationales just to get around the stupid Supreme Court decision.”

Charles C. Camosy, a member of DFLA’s board, wrote in a May op-ed for the LA Times that a federal 20-week ban was “common-sense legislation.” Camosy encouraged Democratic lawmakers to help pass the abortion ban as “a carrot to get moderate Republicans on board” with paid family leave policies.

Robert also relied upon conservative talking points about fake clinics, also known as crisis pregnancy centers, which routinely lie to patients to persuade them not to have an abortion. Robert said DFLA doesn’t often interact with women facing unplanned pregnancies, but the group nonetheless views such organizations as “absolutely fabulous [be]cause they help the women.”

Those who say such fake clinics provide patients with misinformation and falsehoods about abortion care are relying on “propaganda by Planned Parenthood,” Robert claimed, adding that the reproductive health-care provider simply doesn’t want patients seeking care at fake clinics and wants to take away those clinics’ funding.

Politicians echoed similar themes at DFLA’s convention event. Edwards’ award acceptance speech revealed his approach to governing, which, to date, includes support for restrictive abortion laws that disproportionately hurt people with low incomes, even as he has expanded Medicaid in Louisiana.

Also present at the event was Louisiana state Rep. Katrina Jackson (D), responsible for a restrictive admitting privileges law that former Gov. Bobby Jindal (R) signed into law in 2014. Jackson readily admitted to Rewire that she takes her legislative cues from the National Right to Life. She also name-checked Dorinda Bordlee, senior counsel of the Bioethics Defense Fund, an allied organization of the Alliance Defending Freedom.

“They don’t just draft bills for me,” Jackson told Rewire in an interview. “What we do is sit down and talk before every session and see what the pressing issues are in the area of supporting life.”

Despite what Jackson described as a commitment to the constitutionality of her laws, the Supreme Court in March blocked admitting privileges from taking effect in Louisiana. Louisiana’s law is also nearly identical to the Texas version that the Court struck down in June’s Whole Woman’s Health v. Hellerstedt decision.

Jackson did not acknowledge the setback, speaking instead about how such measures protect the health of pregnant people and fetuses. She did not mention any legal strategy—only that she’s “very prayerful” that admitting privileges will remain law in her state.

Jackson said her “rewarding” work with National Right to Life encompasses issues beyond abortion care—in her words, “how you’re going to care for the baby from the time you choose life.”

She claimed she’s not the only Democrat to seek out the group’s guidance.

“I have a lot of Democratic colleagues in my state, in other states, who work closely with [National] Right to Life,” Jackson said. “I think the common misconception is, you see a lot of party leaders saying they’re pro-abortion, pro-choice, and you just generally assume that a lot of the state legislators are. And that’s not true. An overwhelming majority of the Democrat state legislators in our state and others are pro-life. But, we say it like this: We care about them from the womb to the tomb.”

The relationship between anti-choice Democrats and anti-choice groups couldn’t be more different in South Dakota, said state house Rep. Ray Ring (D), a Hillary Clinton supporter at DFLA’s convention event.

Ring said South Dakota is home to a “small, not terribly active” chapter of DFLA. The “very Republican, very conservative” South Dakota Right to Life drives most of the state’s anti-choice activity and doesn’t collaborate with anti-choice Democrats in the legislature, regardless of their voting records on abortion.

Democrats hold a dozen of the 70 seats in South Dakota’s house and eight of the 35 in the state senate. Five of the Democratic legislators had a mixed record on choice and ten had a pro-choice record in the most recent legislative session, according to NARAL Pro-Choice South Dakota Executive Director Samantha Spawn.

As a result, Ring and other anti-choice Democrats devote more of their legislative efforts toward policies such as Medicaid expansion, which they believe will reduce the number of pregnant people who seek abortion care. Ring acknowledged that restrictions on the procedure, such as a 20-week ban, “at best, make a very marginal difference”—a far cry not only from Republicans’ anti-choice playbook, but also DFLA’s position.

Ring and other anti-choice Democrats nevertheless tend to vote for Republican-sponsored abortion restrictions, falling in line with DFLA’s best practices. The group’s report, which it released at the event, implied that Democratic losses since 2008 are somehow tied to their party’s support for abortion rights, even though the turnover in state legislatures and the U.S. Congress can be attributed to a variety of factors, including gerrymandering to favor GOP victories.

Anecdotal evidence provides measured support for the inference.

Republican-leaning anti-choice groups targeted one of their own—Rep. Renee Ellmers (R-NC)—in her June primary for merely expressing concern that a congressional 20-week abortion ban would have required rape victims to formally report their assaults to the police in order to receive exemptions. Ellmers eventually voted last year for the U.S. House of Representatives’ “disgustingly cruel” ban, similarly onerous rape and incest exceptions included.

If anti-choice groups could prevail against such a consistent opponent of abortion rights, they could easily do the same against even vocal “Democrats for Life.”

Former Rep. Kathy Dalhkemper (D-PA) contends that’s what happened to her and other anti-choice Democrats in the 2010 midterm elections, which resulted in Republicans wresting control of the House.

“I believe that pro-life Democrats are the biggest threat to the Republicans, and that’s why we were targeted—and I’ll say harshly targeted—in 2010,” Dahlkemper said in an interview.

She alleged that anti-choice groups, often funded by Republicans, attacked her for supporting the Affordable Care Act. A 2010 Politico story describes how the Susan B. Anthony List funneled millions of dollars into equating the vote with support for abortion access, even though President Obama signed an executive order in the vein of the Hyde Amendment’s prohibition on federal funds for abortion care.

Dalhkemper advocated for perhaps the clearest strategy to counter the narrative that anti-choice Democrats somehow aren’t really opposed to abortion.

“What we need is support from our party at large, and we also need to band together, and we also need to continue to talk about that consistent life message that I think the vast majority of us believe in,” she said.

Self-described pro-choice Georgia House Minority Leader Rep. Stacey Abrams (D) rejected the narratives spun by DFLA to supporters. In an interview with Rewire at the convention, Abrams called the organization’s claim that Democrats should work to elect anti-choice politicians from within their ranks in order to win in places like the South a “dangerous” strategy that assumes “that the South is the same static place it was 50 or 100 years ago.”

“I think what they’re reacting to is … a very strong religious current that runs throughout the South,” that pushes people to discuss their values when it comes to abortion, Abrams said. “But we are capable of complexity. And that’s the problem I have. [Its strategy] assumes and reduces Democrats to a single issue, but more importantly, it reduces the decision to one that is a binary decision—yes or no.”

That strategy also doesn’t take into account the intersectional identities of Southern voters and instead only focuses on appealing to the sensibilities of white men, noted Abrams.

“We are only successful when we acknowledge that I can be a Black woman who may be raised religiously pro-life but believe that other women have the right to make a choice,” she continued. “And the extent to which we think about ourselves only in terms of white men and trying to convince that very and increasingly narrow population to be our saviors in elections, that’s when we face the likelihood of being obsolete.”

Understanding that nuances exist among Southern voters—even those who are opposed to abortion personally—is instead the key to reaching them, Abrams said.

“Most of the women and most of the voters, we are used to having complex conversations about what happens,” she said. “And I do believe that it is both reductive and it’s self-defeating for us to say that you can only win if you’re a pro-life Democrat.”

To Abrams, being pro-choice means allowing people to “decide their path.”

“The use of reproductive choice is endemic to how we as women can be involved in society: how we can go to work, how we can raise families, make choices about who we are. And so while I am sympathetic to the concern that you have to … cut against the national narrative, being pro-choice means exactly that,” Abrams continued. “If their path is pro-life, fine. If their path is to decide to make other choices, to have an abortion, they can do so.”

“I’m a pro-choice woman who has strongly embraced the conversation and the option for women to choose whatever they want to choose,” Abrams said. “That is the best and, I think, most profound path we can take as legislators and as elected officials.”

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. 


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