Commentary Human Rights

Did I Kill My Baby Boy? And If I Had Been in Mississippi, Would I Be Facing Prison?

Lorraine Berry

If I had lived in Mississippi in 1996, would I have dared go to the hospital when I suffered a miscarriage? And if I had, would I be facing prison?

See all our coverage on Mississippi Initiative 26 here.

In 1996, I suffered a second-trimester spontaneous abortion, (miscarriage). It ranks as one of the worst experiences of my life, losing a fetus that was hoped for, longed for, and for whom a future had been imagined.

Next week, Mississippi votes on a “personhood” amendment that would define personhood as occurring when the egg is fertilized (not implanted, prior to this, fertilization).

If I had been experiencing the pains and bleeding that I knew signaled the end of my pregnancy, would I have gone to that hospital emergency room? If I hadn’t gone, and had passed that fetus alone, would I have known that I had not entirely expelled the contents of my uterus and was now vulnerable to a deadly infection? Would I have died from fear of being prosecuted for losing my baby?

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Friday morning. June 7, 1996, I was attending a conference at a university. I ate some breakfast, and went downstairs. I was having pain in my back and in my groin. I felt the familiar tingle of fear go up my backbone. My hands began to shake. I went into the bathroom, and I felt something pass out of me. I looked at it in the toilet. An unrecognizable blob of something that looked like something an old man would hock out of his lungs floated in the water.  But there was no blood. Still, I knew something was wrong.

I approached the student union information booth. A bored, young woman stood behind the desk, and calmly, I told her I thought I might be having a miscarriage and I thought I needed some help. Her compassion shown through immediately: She called 911. And she escorted me over to a couch, made me lie down.

First, the firefighters arrived. They seemed weighed down in their heavy rubber boots, their fireproof pants with the suspenders that crossed over navy blue shirts. One of them asked me how I felt. When I told him what had happened, that something I thought “the size of a golf ball” had come out of me, he said, “A golf ball?” And then he said, “I don’t think that’s a miscarriage. I think, given how far along you are, it would have been bigger.” I suddenly felt embarrassed, like I had brought everyone out for nothing. I was relieved, yes, because maybe it meant that this thing wasn’t happening to me, but the casual dismissal of my experience left me as flustered as someone caught in a lie.

Two EMTs showed up. I explained to them that I thought I might be having a miscarriage. Explained what I was feeling. I was scared, and I’m sure my fear showed in everything about me. They loaded me onto a gurney, put me in the back of an ambulance, and drove me to the university hospital. I chatted with the EMT who rode in the back of the ambulance. He monitored my blood pressure, my heart rate. He and I talked about why I was in Chapel Hill. It could have been a conversation in a grocery store line, the kind of chat provoked by the need to kill time while you wait for the cashier to get a price check on frozen pizza.

I was examined by a nurse, and then the ER doctor. He checked me for bleeding, and there was none. But, in the time it took for the OB-GYN resident to come to the ER, there was bleeding. Crimson spots. Crimson, like death. I called the nurse back into the room, convinced that all was at an end. “It’s not too much blood, honey,” she said, and she tut-tutted over me as if I was one of her grandchildren who had come to her with a skinned knee.

The doctor came back into the room. He passed the ultrasound wand over my stomach. My baby was in there. “See?” He pointed him out. “Everything looks fine. It’s just a little spotting.”

But the baby’s heartbeat was almost 190. And some voice inside me told me that wasn’t right. But the doctor was reassuring. “I think you’re going to be just fine,” he said. “I think you have about a 90 percent chance of carrying this baby to term. I’m going to release you. Go back to the dorm room. Put your feet up. You’ll be fine.”

I left the hospital. The conference staff had sent a car over to get me, and I happily reassured the worried staffer that I was fine. False alarm. Sorry to have gotten everybody so concerned.

He dropped me at the entrance to the central conference area. I remember I was wearing a pale pink dress. It was loose, and I had purchased it just the week before to serve as a maternity dress that I could wear for the conference. At one pm, an acquaintance of mine was giving a paper in a panel. The room was crowded, and I managed to nab a chair right near the door.

The room filled. There were people sitting on the floor. It was crowded, and I looked around, was thrilled to recognize another rockstar professor whose books had changed my whole way of looking at things. I was thinking about some way that I might be able to talk to her after the session, but I brought my mind back to the panel, which was just about to be introduced. I settled onto the hard wooden chair and then something happened. Something let go inside of me, and I felt a flood into my underpants.

I just jumped up, said, “Oh my God,” and ran from the room. I heard someone sigh behind me, as if I had greatly inconvenienced them, and once again, I felt embarrassed. The women’s restroom was next door. I went in there. It was empty, the tile white, the mirrors everywhere. I went into a stall. I pulled down my underpants and sat down. I hurt. My back hurt. My pelvis hurt. And something passed through me. Something big, like a softball. I heard the plop as it hit the water in the bowl.

I didn’t want to look. I couldn’t look. If I looked, my life was going to end. I stopped thinking. I flushed the toilet without looking behind me. I pulled up my pants. Calm overtook me; Eirene, or perhaps it was Morpheus, laid their hands on me, and I became a sleepwalker. But I was a sleepwalker in the midst of a troubling dream; still, the blank was winning.

I washed my hands. I could feel fluid pouring down onto my legs. I didn’t want to look. I knew that my dress was going to be covered soon. I didn’t want to look. I grabbed my briefcase and walked down a long staircase, into the conference organizers’ room. I walked up to the first person I saw behind a table. “Excuse me,” I said. “I seem to be hemorrhaging. I think I need some help.”

I had to repeat myself. I don’t think she believed me the first time. Someone helped me over to a couch. I lay down. I began to cry. Now that I was not alone, I could allow myself a moment to fall apart. Even still, they were not the great wails of the banshee; my sobs were quiet, reserved, controlled. Tears dripped into my hair, as my uterus emptied out onto my legs. Someone stroked my hair, shushed me. I told them I thought I was bleeding all over the couch. “Do you want me to look?” she said. I nodded. She looked. “It doesn’t look like blood,” she said.

The EMTs arrived. It was the same EMTs from the morning. “Oh God,” I cried to the young one. “I think I lost my baby.”

“Where were you?” he asked.

“In the bathroom. Oh God, I think I flushed my baby down the toilet.” I began to sob. How could someone flush her baby down a toilet? My stomach scrambled; it reminded me of the clatter of a dog’s paws on a wooden floor when the dog is panicked. Panic fought with the need for distance, and the wave of anxiety passed.

He started an IV. I was out of it, alone in a world of pain where my pelvis ached and my brain was actively closing off anything that looked like knowledge of loss. His partner came over, whispered something in his ear.

Again, they loaded me on the gurney. This time, the lights were flashing. I was in shock. I needed attention. We arrived at the ER. The same nurse. She came to me, and I remember saying to her “The baby’s gone.” And she stroked my hair, gave me a hug. I looked up, and the same ER doctor from just a few hours ago was there, too.

Someone from the conference, I never knew her name, had ridden with me in the ambulance. She kept holding my hand. I needed someone to call my husband. He was at work in Syracuse. He needed to know what I had done. I had killed my baby. I knew that. Even as I was transferred from the gurney to an ER cot, that thought imprinted itself on my brain. I had killed my baby. And now I had to pay a price.  Someone in the ER called him. They told me that he had said he would be on the next flight he could get out on. I held onto the hand of a woman I didn’t know.

No one had confirmed that I had lost the baby at this point. I was being treated, but no one had yet told me that the baby was gone. I had somehow convinced myself in the ambulance that the baby was still there, inside of me. At the same time that I was beating myself up for killing my baby, I still thought that perhaps, as it had been earlier in the day, this was simply a false alarm. A second heartbeat still throbbed within me.

The ER doctor came in. “We have the fetus.” he said.

“I don’t understand,” I said. It turned out that the second EMT had retrieved the fetus from the toilet. I had not flushed it down. Even now, my mind cannot go where this image leads.

I remember when I was a child, our dog had puppies. When the first puppy came, the dog was so startled that she ran away from what had dropped out of her body. I had had the same reaction. Pure instinct. To move away from it. To not see it.

The ER doctor told me I was going to be okay. “My wife lost our baby six weeks ago,” he said. “I know this is hard, but you’ll get through this. I promise.”

A second OB-GYN resident came in. The first one, the one who had promised me my baby would live, obviously didn’t want to face me. It was okay. I forgave him. He had tried to make me feel better. It was a lesson in being a doctor. Don’t promise the things you have no control over. I even said that to the new doctor who was examining me. “Tell him this wasn’t his fault,” I said, or something similar. I absolved him of blame. I knew who had really killed her baby.

“I need to do an ultrasound,” he said. “I’m going to turn the machine away from you, so you don’t see the screen. I know you saw a baby there this morning. I don’t want you to see the empty uterus.”

I was so grateful. Such a kindness. I don’t think I could have borne looking where just a few hours ago, a fetus had lived. As it turned out, there was a mess in there. I needed an emergency D&C. I was given an anesthetic, and something to calm me. But as the doctor placed the speculum inside of me, I began to shake, grow cold. “I’m scared,” I said. The nurse squeezed my hand, and more medicine was added to the drip. I zoned out. I was there but not there. I felt the instruments. I knew what was happening. But I was somewhere else. Something inside of me shut off. Completely.

Without the follow-up care I received at the hospital, I would have died of a massive infection. If I thought that what I had done might be perceived as a crime, would I have gone to the hospital when the pain began? When the fever started? Or would I die, as so many millions of women have died, for lack of concern about women in this world.

Jesus. I want to weep.

Culture & Conversation Maternity and Birthing

On ‘Commonsense Childbirth’: A Q&A With Midwife Jennie Joseph

Elizabeth Dawes Gay

Joseph founded a nonprofit, Commonsense Childbirth, in 1998 to inspire change in maternity care to better serve people of color. As a licensed midwife, Joseph seeks to transform how care is provided in a clinical setting.

This piece is published in collaboration with Echoing Ida, a Forward Together project.

Jennie Joseph’s philosophy is simple: Treat patients like the people they are. The British native has found this goes a long way when it comes to her midwifery practice and the health of Black mothers and babies.

In the United States, Black women are disproportionately affected by poor maternal and infant health outcomes. Black women are more likely to experience maternal and infant death, pregnancy-related illness, premature birth, low birth weight, and stillbirth. Beyond the data, personal accounts of Black women’s birthing experiences detail discrimination, mistreatment, and violation of basic human rights. Media like the new film, The American Dream, share the maternity experiences of Black women in their own voices.

A new generation of activists, advocates, and concerned medical professionals have mobilized across the country to improve Black maternal and infant health, including through the birth justice and reproductive justice movements.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Joseph founded a nonprofit, Commonsense Childbirth, in 1998 to inspire change in maternity care to better serve people of color. As a licensed midwife, Joseph seeks to transform how care is provided in a clinical setting.

At her clinics, which are located in central Florida, a welcoming smile and a conversation mark the start of each patient visit. Having a dialogue with patients about their unique needs, desires, and circumstances is a practice Joseph said has contributed to her patients having “chunky,” healthy, full-term babies. Dialogue and care that centers the patient costs nothing, Joseph told Rewire in an interview earlier this summer.

Joseph also offers training to midwives, doulas, community health workers, and other professionals in culturally competent, patient-centered care through her Commonsense Childbirth School of Midwifery, which launched in 2009. And in 2015, Joseph launched the National Perinatal Task Force, a network of perinatal health-care and service providers who are committed to working in underserved communities in order to transform maternal health outcomes in the United States.

Rewire spoke with Joseph about her tireless work to improve maternal and perinatal health in the Black community.

Rewire: What motivates and drives you each day?

Jennie Joseph: I moved to the United States in 1989 [from the United Kingdom], and each year it becomes more and more apparent that to address the issues I care deeply about, I have to put action behind all the talk.

I’m particularly concerned about maternal and infant morbidity and mortality that plague communities of color and specifically African Americans. Most people don’t know that three to four times as many Black women die during pregnancy and childbirth in the United States than their white counterparts.

When I arrived in the United States, I had to start a home birth practice to be able to practice at all, and it was during that time that I realized very few people of color were accessing care that way. I learned about the disparities in maternal health around the same time, and I felt compelled to do something about it.

My motivation is based on the fact that what we do [at my clinic] works so well it’s almost unconscionable not to continue doing it. I feel driven and personally responsible because I’ve figured out that there are some very simple things that anyone can do to make an impact. It’s such a win-win. Everybody wins: patients, staff, communities, health-care agencies.

There are only a few of us attacking this aggressively, with few resources and without support. I’ve experienced so much frustration, anger, and resignation about the situation because I feel like this is not something that people in the field don’t know about. I know there have been some efforts, but with little results. There are simple and cost-effective things that can be done. Even small interventions can make such a tremendous a difference, and I don’t understand why we can’t have more support and more interest in moving the needle in a more effective way.

I give up sometimes. I get so frustrated. Emotions vie for time and energy, but those very same emotions force me to keep going. I feel a constant drive to be in action and to be practical in achieving and getting results.

Rewire: In your opinion, what are some barriers to progress on maternal health and how can they be overcome?

JJ: The solutions that have been generated are the same, year in and year out, but are not really solutions. [Health-care professionals and the industry] keep pushing money into a broken system, without recognizing where there are gaps and barriers, and we keep doing the same thing.

One solution that has not worked is the approach of hiring practitioners without a thought to whether the practitioner is really a match for the community that they are looking to serve. Additionally, there is the fact that the practitioner alone is not going to be able make much difference. There has to be a concerted effort to have the entire health-care team be willing to support the work. If the front desk and access points are not in tune with why we need to address this issue in a specific way, what happens typically is that people do not necessarily feel welcomed or supported or respected.

The world’s best practitioner could be sitting down the hall, but never actually see the patient because the patient leaves before they get assistance or before they even get to make an appointment. People get tired of being looked down upon, shamed, ignored, or perhaps not treated well. And people know which hospitals and practitioners provide competent care and which practices are culturally safe.

I would like to convince people to try something different, for real. One of those things is an open-door triage at all OB-GYN facilities, similar to an emergency room, so that all patients seeking maternity care are seen for a first visit no matter what.

Another thing would be for practitioners to provide patient-centered care for all patients regardless of their ability to pay.  You don’t have to have cultural competency training, you just have to listen and believe what the patients are telling you—period.

Practitioners also have a role in dismantling the institutionalized racism that is causing such harm. You don’t have to speak a specific language to be kind. You just have to think a little bit and put yourself in that person’s shoes. You have to understand she might be in fear for her baby’s health or her own health. You can smile. You can touch respectfully. You can make eye contact. You can find a real translator. You can do things if you choose to. Or you can stay in place in a system you know is broken, doing business as usual, and continue to feel bad doing the work you once loved.

Rewire: You emphasize patient-centered care. Why aren’t other providers doing the same, and how can they be convinced to provide this type of care?

JJ: I think that is the crux of the matter: the convincing part. One, it’s a shame that I have to go around convincing anyone about the benefits of patient-centered care. And two, the typical response from medical staff is “Yeah, but the cost. It’s expensive. The bureaucracy, the system …” There is no disagreement that this should be the gold standard of care but providers say their setup doesn’t allow for it or that it really wouldn’t work. Keep in mind that patient-centered care also means equitable care—the kind of care we all want for ourselves and our families.

One of the things we do at my practice (and that providers have the most resistance to) is that we see everyone for that initial visit. We’ve created a triage entry point to medical care but also to social support, financial triage, actual emotional support, and recognition and understanding for the patient that yes, you have a problem, but we are here to work with you to solve it.

All of those things get to happen because we offer the first visit, regardless of their ability to pay. In the absence of that opportunity, the barrier to quality care itself is so detrimental: It’s literally a matter of life and death.

Rewire: How do you cover the cost of the first visit if someone cannot pay?

JJ: If we have a grant, we use those funds to help us pay our overhead. If we don’t, we wait until we have the women on Medicaid and try to do back-billing on those visits. If the patient doesn’t have Medicaid, we use the funds we earn from delivering babies of mothers who do have insurance and can pay the full price.

Rewire: You’ve talked about ensuring that expecting mothers have accessible, patient-centered maternity care. How exactly are you working to achieve that?

JJ: I want to empower community-based perinatal health workers (such as nurse practitioners) who are interested in providing care to communities in need, and encourage them to become entrepreneurial. As long as people have the credentials or license to provide prenatal, post-partum, and women’s health care and are interested in independent practice, then my vision is that they build a private practice for themselves. Based on the concept that to get real change in maternal health outcomes in the United States, women need access to specific kinds of health care—not just any old health care, but the kind that is humane, patient-centered, woman-centered, family-centered, and culturally-safe, and where providers believe that the patients matter. That kind of care will transform outcomes instantly.

I coined the phrase “Easy Access Clinics” to describe retail women’s health clinics like a CVS MinuteClinic that serve as a first entry point to care in a community, rather than in a big health-care system. At the Orlando Easy Access Clinic, women receive their first appointment regardless of their ability to pay. People find out about us via word of mouth; they know what we do before they get here.

We are at the point where even the local government agencies send patients to us. They know that even while someone’s Medicaid application is in pending status, we will still see them and start their care, as well as help them access their Medicaid benefits as part of our commitment to their overall well-being.

Others are already replicating this model across the country and we are doing research as we go along. We have created a system that becomes sustainable because of the trust and loyalty of the patients and their willingness to support us in supporting them.

Photo Credit: Filmmaker Paolo Patruno

Joseph speaking with a family at her central Florida clinic. (Credit: Filmmaker Paolo Patruno)

RewireWhat are your thoughts on the decision in Florida not to expand Medicaid at this time?

JJ: I consider health care a human right. That’s what I know. That’s how I was trained. That’s what I lived all the years I was in Europe. And to be here and see this wanton disregard for health and humanity breaks my heart.

Not expanding Medicaid has such deep repercussions on patients and providers. We hold on by a very thin thread. We can’t get our claims paid. We have all kinds of hoops and confusion. There is a lack of interest and accountability from insurance payers, and we are struggling so badly. I also have a Change.org petition right now to ask for Medicaid coverage for pregnant women.

Health care is a human right: It can’t be anything else.

Rewire: You launched the National Perinatal Task Force in 2015. What do you hope to accomplish through that effort?

JJ: The main goal of the National Perinatal Task Force is to connect perinatal service providers, lift each other up, and establish community recognition of sites committed to a certain standard of care.

The facilities of task force members are identified as Perinatal Safe Spots. A Perinatal Safe Spot could be an educational or social site, a moms’ group, a breastfeeding circle, a local doula practice, or a community center. It could be anywhere, but it has got to be in a community with what I call a “materno-toxic” area—an area where you know without any doubt that mothers are in jeopardy. It is an area where social determinants of health are affecting mom’s and baby’s chances of being strong and whole and hearty. Therein, we need to put a safe spot right in the heart of that materno-toxic area so she has a better chance for survival.

The task force is a group of maternity service providers and concerned community members willing to be a safe spot for that area. Members also recognize each other across the nation; we support each other and learn from each others’ best practices.

People who are working in their communities to improve maternal and infant health come forward all the time as they are feeling alone, quietly doing the best they can for their community, with little or nothing. Don’t be discouraged. You can get a lot done with pure willpower and determination.

RewireDo you have funding to run the National Perinatal Task Force?

JJ: Not yet. We have got the task force up and running as best we can under my nonprofit Commonsense Childbirth. I have not asked for funding or donations because I wanted to see if I could get the task force off the ground first.

There are 30 Perinatal Safe Spots across the United States that are listed on the website currently. The current goal is to house and support the supporters, recognize those people working on the ground, and share information with the public. The next step will be to strengthen the task force and bring funding for stability and growth.

RewireYou’re featured in the new film The American Dream. How did that happen and what are you planning to do next?

JJ: The Italian filmmaker Paolo Patruno got on a plane on his own dime and brought his cameras to Florida. We were planning to talk about Black midwifery. Once we started filming, women were sharing so authentically that we said this is about women’s voices being heard. I would love to tease that dialogue forward and I am planning to go to four or five cities where I can show the film and host a town hall, gathering to capture what the community has to say about maternal health. I want to hear their voices. So far, the film has been screened publicly in Oakland and Kansas City, and the full documentary is already available on YouTube.

RewireThe Black Mamas Matter Toolkit was published this past June by the Center for Reproductive Rights to support human-rights based policy advocacy on maternal health. What about the toolkit or other resources do you find helpful for thinking about solutions to poor maternal health in the Black community?

JJ: The toolkit is the most succinct and comprehensive thing I’ve seen since I’ve been doing this work. It felt like, “At last!”

One of the most exciting things for me is that the toolkit seems to have covered every angle of this problem. It tells the truth about what’s happening for Black women and actually all women everywhere as far as maternity care is concerned.

There is a need for us to recognize how the system has taken agency and power away from women and placed it in the hands of large health systems where institutionalized racism is causing much harm. The toolkit, for the first time in my opinion, really addresses all of these ills and posits some very clear thoughts and solutions around them. I think it is going to go a long way to begin the change we need to see in maternal and child health in the United States.

RewireWhat do you count as one of your success stories?

JJ: One of my earlier patients was a single mom who had a lot going on and became pregnant by accident. She was very connected to us when she came to clinic. She became so empowered and wanted a home birth. But she was anemic at the end of her pregnancy and we recommended a hospital birth. She was empowered through the birth, breastfed her baby, and started a journey toward nursing. She is now about to get her master’s degree in nursing, and she wants to come back to work with me. She’s determined to come back and serve and give back. She’s not the only one. It happens over and over again.

This interview has been edited for length and clarity.

Investigations Media

Exclusive: Law Enforcement Calls Daleiden ‘Uncooperative’; Documents Reveal More CMP Lies

Sharona Coutts

“David Daleiden contacted our agency May 21st of 2015 and filed a criminal report against StemExpress here in Placerville,” a spokesperson at the El Dorado County Sheriff’s Office told Rewire. “All he was, was a reporting party. He didn’t consult with us and he didn’t cooperate with us. In fact, I’d characterize him as uncooperative.”

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

In late May of last year, David Daleiden was reaching the culmination of a project he had been working on for three years. Over that time, the anti-choice activist had been living a lie of his own creation. He had set up a bogus company, complete with a fake website, and corporate officers whose names were in fact aliases.

He had enlisted half a dozen other anti-choice activists to help him, most notably Sandra Susan Merritt, a 63-year-old resident of San Jose, California, who—using the alias Susan Tennenbaum—posed as the CEO of the bogus company, Biomax Procurement Services.

Together, Daleiden—going by Robert Daoud Sarkis—and Merritt hopscotched the country, traveling from California to Colorado, Florida, Maryland, Texas, and Washington, D.C. They attended conferences for abortion providers and parlayed those attendances—and the trust and credibility they engendered—into visits to abortion clinics, where the pair secretly recorded meetings and site visits and tried to goad their targets into making statements that could be twisted to look like evidence of illegal activities.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

By May 21, Daleiden was nearly ready to bring his elaborate scheme to a head. The next night, he and “Tennenbaum” were scheduled to have dinner with executives from StemExpress, a tissue procurement company based in Northern California. As he had done for virtually every encounter as a Biomax official, Daleiden planned to secretly video record the meeting and then to release doctored versions of that footage to the public.

But this time, Daleiden did something different. On the eve of this particular meeting, he delivered a bundle of so-called evidence of alleged wrongdoing by StemExpress to the El Dorado County Sheriff’s Office, claiming that the company had engaged in a range of crimes including trafficking in human organs and human tissues, and “homicide of babies born alive during the abortion procedure,” according to legal documents obtained by Rewire.

In a deposition taken late last year, Daleiden would claim—in sworn testimony, under penalty of perjury—that the purpose of his meeting with the El Dorado County Sheriff’s Office was “to coordinate [his] investigations going forward on how to bring StemExpress criminal conduct to light.”

Following his lawyer’s advice during that deposition, Daleiden refused to say more about that meeting, or the other authorities he had supposedly “coordinated” with in his spying campaign, but he did heavily imply that the El Dorado County Sheriff’s Office was just one of the “governmental authorities” that he met with “contemporaneously with the actual undercover operation.”

The notion that law enforcement authorities were actively colluding with Daleiden and his associates in conduct that has resulted in criminal indictments is curious, to say the least.

It’s just one of the loose ends that surrounds Daleiden’s project, a year after he released the first smear video against Planned Parenthood (the organization and some of its individual employees), abortion providers in general, and companies that assist in the procurement of tissue for medical and scientific research. 

Despite the dozen-odd state and federal investigations his project sparked, the multiple civil and criminal cases it sent ricocheting through state and federal courts, and the untold damage it caused to companies, organizations, and individuals targeted by his group, many questions remain about who funded Daleiden, which politicians supported him, and who else was involved in his operation—including the identities of the other operatives that posed as Biomax employees. 

Using freshly obtained legal documents, Rewire has taken a look back at some of the most mysterious aspects of the Daleiden affair, comparing what we have learned since the videos were first released with what remains unknown or unclear.

What emerge are some disturbing claims that have yet to be fully resolved, not least of which is the extent to which members of Congress were aware of—or involved in—planning or executing Daleiden’s campaign.

El Dorado Sheriff’s Office: Daleiden Was “Uncooperative”

When Daleiden met with the El Dorado County Sheriff’s Office, he handed over a report he had prepared containing his “best kind of summary or list of the different California and federal laws that are implicated in the actions between StemExpress and Planned Parenthood,” along with “a few representative examples of the evidence that CMP gathered that indicates probable cause for violations of those laws,” according to a transcript of the deposition he gave on December 30, 2015.

When Rewire contacted the El Dorado County Sheriff’s Office about this anecdote, its spokesperson, Jim Byers, said he clearly remembered Daleiden’s visit, but disputed Daleiden’s characterization that his office was “coordinating” with the spying project.

“David Daleiden contacted our agency May 21st of 2015 and filed a criminal report against StemExpress here in Placerville,” Byers said. “All he was, was a reporting party. He didn’t consult with us and he didn’t cooperate with us. In fact, I’d characterize him as uncooperative.”

Byers said that it was unclear to his colleagues what exactly Daleiden wanted them to do with the information he had provided. Flipping through the report while speaking with Rewire, Byers explained: “It just says that he had been conducting a multiyear investigation and was going to go public with it and wanted to make this report to us, but when we asked him to hold off so we could investigate his claims, he went ahead and went public anyway.”

The reason the sheriff’s office asked Daleiden not to go public was because doing so would hamper any investigation they might do into the allegations Daleiden had made. “That’s very common, for us to ask something like that, because then the people we need to talk to aren’t going to talk to us,” Byers said. “He declined to follow our request.”

Regardless, the sheriff’s office spent months investigating Daleiden’s claims; they found no evidence of illegal conduct by StemExpress. As is routine, the sheriff’s office then referred the matter to the El Dorado District Attorney for further review. Dave Stevenson, the spokesperson for the district attorney’s office, told Rewire he was unable to comment on the matter as the investigation is ongoing.

If it seems odd that Daleiden would make a report to law enforcementbut not give them any time to actually investigate the allegations he’d made and actually jeopardize those investigations—that might be because the act of making the report itself was part of Daleiden’s legal strategy.

Daleiden was consulting with the Life Legal Defense Foundation for at least two years prior to releasing his videos, according to published reports. It’s therefore likely that he knew that California creates criminal and civil penalties for people who intentionally make a secret recording of a person in a private meeting without their consent. And indeed, that’s one of the key charges within the lawsuits that have been filed against Daleiden and his co-defendants.

It’s also likely that Daleiden and his advisers knew that there is an exception to that law for people who make a secret recording “for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person.”

Throughout the deposition he made on December 30, Daleiden maintained that he believed he was exposing criminal conduct as a justification for his spying activities. Merritt made similar claims in the deposition she gave in the same case, on December 29. In particular, both insist they believed they were recording evidence of murder.

It appears plausible that Daleiden made his report not because he thought the county sheriff’s office would really investigate, but because he anticipated that once he published the illegally taped videos, he would be charged with a crime, and he was simply laying the groundwork to be able to show a court later on that he had filed the criminal report as evidence of his belief that he had uncovered a crime.

Daleiden did not reply to Rewire‘s questions about whether this was in fact his legal strategy. Catherine Short, his lawyer at Life Legal Defense Foundation, did not immediately respond to our emails seeking comment. 

However, for that defense to work, a person must show they had an honest and reasonable belief that they were uncovering a crime. And when it came to the specifics of the supposed crimes they were uncovering, both depositions are striking for the extent to which Daleiden and Merritt refused or were unable to give clear definitions of those offenses.

For instance, both Daleiden and Merritt were reluctant to answer questions about who, if anyone, they believed had actually committed the murder they were supposedly reporting, despite that being one of their key allegations. Both Daleiden and Merritt made vague statements about “doctors” being responsible, or about the “abortion industry” writ large, but when it came to the specifics of how anyone at StemExpress could have been guilty of murder, their answers were evasive. 

In one chilling passage, Daleiden gave stammering and elusive answers to questioning over whether he believed that one of the people who assisted him in his smear campaign—a former StemExpress employee named Holly O’Donnell—had provided him with evidence that she had herself committed murder. Discussing O’Donnell’s account of one incident she related where she claimed to have procured fetal brain tissue, Daleiden initially said he did not believe O’Donnell had murdered that fetus. But under questioning about the overall processes involved in preparing tissue samples, Daleiden’s answers became confused.

After Daleiden noted that O’Donnell went with him to his first meeting with El Dorado law enforcement, the StemExpress lawyer asked: “Did you ever tell Holly that you thought she should be investigated by El Dorado County for her conduct?”

Daleiden never definitely said “no,” but rather, “I think that, you know, the testimony of people who worked at StemExpress is—you know, is relevant to that investigation but I think the ultimate culpability is with the—with the business entity.” He also said he would “put culpability on the doc,” but then he said:

I’m not sure what Holly’s obligations were there. But, you know, but this is—this is highly speculative and, like I said, this is why I think this is really serious information that I—and really serious allegations and actions that—that needed to be brought to law enforcement, which is what I did.

Ultimately, Daleiden’s lawyer summarized his client’s position on O’Donnell’s potential guilt thus: “He explained as best he could that it would be the doctor or it would be [a different StemExpress employee] and it’s ambiguous as to Holly’s role at that point.”

Merritt appears to go further. Towards the end of her deposition, she was asked to clarify whether she believed that any StemExpress employees had committed murder. She described what she believed O’Donnell had done, and then said, “Yes, I believe that to be murder.”

One can only wonder whether O’Donnell was aware that Daleiden considered the possibility—or perhaps, had not considered the possibility—that he was giving law enforcement authorities evidence that she had committed murder, when she accompanied Daleiden to their offices and helped him with his “investigation.”

Rewire’s attempts to contact O’Donnell for her comment on that question were unsuccessful.

Further Evidence That Daleiden and His Associates Are Not Reporters

The very fact that Daleiden claimed—albeit incorrectly—to have been “coordinating” with law enforcement further undermines his dubious assertion that he is an investigative reporter. Reporters would seldom coordinate their efforts with law enforcement, except for rare instances where, by way of example, they might inform law enforcement if they had learned of an imminent risk to a person’s life or to national security.

The deposition also revealed Daleiden’s investigative methods to be far from objective, and in some respects, amateurish.

Under questioning from StemExpress’ attorney, Daleiden explained that much of his knowledge of how tissue or organ transplantation worked was based on “research,” which comprised Googling for journal articles, which he admitted to cherry-picking. He also based most of his understanding of the equipment used in heart transplants on watching videos that the equipment manufacturer had posted on its website and YouTube channel.

He relied disproportionately on the expertise of a scientist whose otherwise impressive credentials are marred by her support for widely debunked theories that vaccines are linked to autism. He used this patchwork knowledge to cobble together flawed theories about how fetal tissue is acquired, and the circumstances in which it could be used for research.

He even made assumptions about what medical professionals meant by the words “case” or “specimen”—he said he believed the people he filmed were referring to a fetus, when in fact those words can also refer to a particular organ or piece of tissue. He said that he didn’t give the subjects of his secret video recordings the opportunity to clarify what they meant by these terms because he didn’t want to blow his cover—or as he put it, he didn’t want to get greedy for information and “get lost in the Cave of Wonders like Aladdin and go like looking for all the other treasures.” He just ran with his own assumptions, something no professional reporter would do. 

And he acknowledged that the reason he embarked on his project was because he had formed an unshakable belief that abortion providers engaged in unlawful trafficking of human organs and tissues, instead of remaining open-minded about the facts and attempting to report against his own biases, as a real reporter would do. None of the multiple investigations into Planned Parenthood have found any evidence that substantiate Daleiden’s allegations. Indeed, Daleiden manipulated his videos to omit passages where the targets of his campaign explicitly told him that profiting from human tissues was unethical and illegal.

Merritt’s deposition is even more astonishing in terms of just how flimsy her claims to be a reporter turn out to be.

Like Daleiden, Merritt is trying to assert that she is a reporter and therefore protected by the First Amendment.

A lawyer for StemExpress asked Merritt, “Do you consider yourself a journalist?”

Merritt answered, “Yes.”

The lawyer then asked, “Have you ever published any articles?”

Merritt answered, “I have not.”

She said she didn’t do any original research. She didn’t do any writing. She didn’t edit. Merritt specifically told the lawyer for StemExpress that her sole role in the ruse orchestrated by Daleiden was to wear a video recorder while playing the part of Susan Tennenbaum, which may explain why Daleiden has frequently referred to his associates as “actors.”

Wearing a camera does not a reporter make.

Which Members of Congress Knew About the Planned Smear Campaign, What Did They Know, and When? 

An especially curious aspect of this saga is how some members of Congress had seen at least one of the smear videos before Daleiden released them to the public. Rep. Trent Franks (R-AZ) and Rep. Tim Murphy (R-PA) both told Roll Call that they had seen the first video about a month before it was published. How and why they came to see the video, and what their role was in helping plan the political response to the tapes, if any, remains unclear.

But the following exchange during Daleiden’s deposition provided a tantalizing tidbit about that mystery.

In his December 30 deposition, Daleiden declined to answer the following questions from StemExpress’ lawyer:

When is the first time you spoke with anybody from, or had any contact with anybody from Congress?

And:

When is the first time you provided any materials to anybody that is a member of Congress?

Daleiden responded: “I don’t think the answer to that question is a matter of public record so I’m going to follow the advice of my counsel.” He declined to respond.

Ostensibly, the reason Daleiden declined is that he believed it was outside the scope of that particular deposition, which was confined to some narrow legal arguments. However, there is an implication in the December 30 deposition that those questions were within the scope of a related case, along with questions about who funded Daleiden’s efforts, and information about the specific role of his board member, the anti-choice extremist and head of Operation Rescue, Troy Newman.

A year has passed since the videos were first released, and a lot of time and taxpayer dollars have been spent as a result of Daleiden’s endeavors. But a year is a short time in the life of a lawsuit, and many cases are still wending their way through state and federal courts. As they do, it is possible that we will learn more about these unresolved questions.

Time will tell whether the pattern Daleiden has established will continue: Instead of exposing wrongdoing by others, the only wrongdoing he has thus far managed to record and expose was his own.