Planned Parenthood announced that it was canceling plans to open a new clinic in Redwood City, saying the opening wasn’t moving fast enough.
Although the group originally had a deal with a nearby rent-a-car service to provide the nine additional parking spaces the clinic required, anti-choice protesters put endless pressure on Enterprise not to go through with its agreement.
Instead, the California Planned Parenthood decided to open a clinic in San Mateo, where there were less adjustments to the property needed, since it was already a health clinic. Protesters of the Redwood City site said they will now move to San Mateo to protest, despite the fact that the facility will not even be providing abortions.
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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.
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.
A District of Columbia Superior Court judge on Friday rejected abortion rights opponents’ motions to dismiss a lawsuit that accuses them of harassing children at a public charter school neighboring a soon-to-be Planned Parenthood center in Washington, D.C.
The activists’ attorneys failed, during Friday’s oral arguments, to persuade Judge Jeanette Clark that Two Rivers Public Charter School is suing to stifle the protesters’ speech related to abortion. Clark accepted the school’s argument that it takes no position on abortion rights but is trying to protect the students’ safety and emotional well-being.
“Plaintiffs have shown in their complaint [that the school] has suffered injuries and is likely to suffer injuries in the future,” Clark said during her ruling.
Two Rivers sued a handful of activists last December for allegedly creating a disruptive, distressing atmosphere for students and for harming the school’s reputation.
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Anti-choice activists for almost a year have protested the Planned Parenthood construction site, which neighbors Two Rivers’ elementary school campus and sits across the street from its middle school campus. Local and national groups have organized protests and devised various strategies to try to prevent the reproductive health center from operating, such as pressuring contractors and trying to turn the neighborhood against Planned Parenthood.
But Two Rivers took legal action after a few of these activists, on separate occasions, stood close to school grounds, where they allegedly aimed graphic signs at children, telling them that Planned Parenthood “kills kids next door” and would cause problems for the school unless their parents stopped them.
The five named defendants (the school included in the suit unnamed John and Jane Does) individually filed motions this winter to dismiss the lawsuit. Defendants have argued that their actions amounted to protected free speech and that any harms inflicted upon students unintentionally result from lawful First Amendment activities.
Robert Weiler Jr., who has so far represented himself in the lawsuit, told the court that in his many years protesting abortion, this is the first time he has been sued for peaceful protest.
“Until this case, nobody has used the civil courts to try to shut me up,” he said.
Weiler claimed that his action outside the school amounted to holding a sign on a public sidewalk and not talking to any students or parents. As he told Rewire when Two Rivers first filed its complaint, he believes he was only named in the lawsuit because of his past: he served time in prison for plotting to bomb a Maryland abortion clinic in 2006.
Like Weiler, other defendants argued their actions were being unfairly lumped together. The school accuses defendants of conspiring together to create a private nuisance at the school, a claim defendants deny.
Defendants accused the school of using children as a cheap excuse to suppress free speech.
Attorney John Garza of Garza Law Firm, P.A., who is representing defendant Jonathan Darnel, argued that Two Rivers is making its case to limit defendants’ activities protesting abortion by “trotting out already born children.”
“It makes me wonder why Planned Parenthood has not wanted to move next to all schools,” Garza said.
Several of the defendants filed motions for the court to drop the lawsuit on the grounds that it is a “strategic lawsuit against public participation,” or a SLAPP suit, which is a type of lawsuit intended to intimidate and silence critics of a particular issue.
These suits can be dismissed under D.C. law unless the plaintiff can demonstrate that the claim is likely to succeed on the merits. It was on this ground that Clark denied the SLAPP motion.
To bolster the argument that defendants have caused reputational harm to Two Rivers, Cary Joshi of Bailey & Glasser LLP told the court the school has already suffered from lower enrollment rates than in previous years and that several parents had requested transfers to Two Rivers’ alternate location in order to avoid the protesters. She said the school has had to hire a private security guard in response to protesters’ activities and that their occasional presence has created an environment of “fear, anxiety, chaos, and, as a result, danger to the students.”
In its lawsuit, Two Rivers is seeking not to ban the protesters’ activities entirely, but to limit what they can show to the students and when.
For example, the school is asking that the court prevent the activists from yelling and using bullhorns “within a reasonable distance” of the school between pickup and drop-off times, and when students are outside for lunch or recess. The lawsuit also seeks to prevent protesters from displaying signs larger than 11 inches by 17 inches that depict “gruesome images of mutilated body parts or dead bodies in a manner reasonably likely to be viewed by children under twelve years of age.”
Though Clark ruled that Two Rivers’ lawsuit could move forward, she denied the school’s request for a temporary restraining order, reasoning that the school had not demonstrated imminent harm to the students. She ruled that Two Rivers’ board of trustees must be dropped as plaintiffs in the suit.
Clark said the case would not go to trial before next year, after the Planned Parenthood at the center of this controversy is scheduled to open and protests are expected. She suggested both parties could attempt to resolve their differences before a mediator, and perhaps agree to protest terms both sides could live with.
Michael Murphy, another attorney at Bailey & Glasser representing Two Rivers, told Rewire after the hearing that his team would consider filing an amended complaint to add that some of the defendants have made allegedly defamatory statements about the school, holding posters that claim Two Rivers supports abortion care.
Alden Nouga, whose daughter is a kindergartner at Two Rivers’ elementary school, is well familiar with these signs.
Having recently learned how to read, Nouga’s daughter asked her mother what it means that her school supports abortion, Nouga told Rewire in a phone interview. She said she used the opportunity as a teaching moment to explain abortion, as well as the concepts of free speech and diversity in viewpoints.
Nouga said that, lately, protests near the school have been only occasional and that, for the most part, protesters have not been engaging parents and students. However, from time to time tensions flare between frustrated parents and protesters, she said.
What would really reassure many of the parents, Nouga said, is to be able to know in advance when activists plan to protest near or at the school, so that they can prepare any anxious children. Her main concern is that the protesters present a safety issue by creating obstacles and tension during busy drop-off and pickup times in an area of the city with high traffic and construction.
“I have a very strong belief in free speech,” Nouga said. “But this case does make you question what the line is.”
As Clark noted during her ruling, free speech “doesn’t mean all speech is protected in all forms.”