News Law and Policy

Contraception Challenges Dismissed in Nashville, Pittsburgh

Jessica Mason Pieklo

Two more lawsuits challenging the contraception mandate were dismissed by federal judges with over 30 left on the docket.

The contraception mandate decisions just keep coming. On Thursday a federal judge dismissed a lawsuit brought by a group of Catholic nonprofits in Nashville while a federal judge in Pittsburgh dismissed a similar lawsuit brought by the Catholic Diocese of Pittsburgh.

An identical case, brought by the Catholic Diocese in Erie is still pending but after the dismissal in the Catholic Diocese of Pittsburgh a dismissal in that suit is likely as well.

In the dismissals of the Catholic Diocese suits both the judges in Nashville and Pittsburgh held the because the mandate was not yet in effect, and since the administration was in the process of further working to address concerns from religious organizations, the Dioceses had suffered no injury yet.

There are approximately 40 federal suits challenging the contraception mandate on the docket nationwide, including 12 suits brought by various Catholic dioceses nationwide. Of those cases pending, district judges have dismissed seven of the cases, including these most recent decisions, granted injunctions in two, denied an injunction in another and issued a split decision. The others are all still pending in federal courts across the country.

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News Law and Policy

Another Acquittal Handed Down in Freddie Gray Case

Michelle D. Anderson

Baltimore Circuit Court Judge Barry Williams said prosecutors failed to prove the elements of the crimes and wanted him to rely on "presumptions or assumptions.”

A Baltimore judge on Monday acquitted another police officer charged in the death of Freddie Gray.

Baltimore Circuit Court Judge Barry Williams cleared Lt. Brian Rice, the highest-ranking Baltimore Police Department officer charged by Baltimore State Attorney Marilyn Mosby, of involuntary manslaughter, reckless endangerment, and misconduct.

The judge heard closing arguments last week.

Gray, a 25-year-old Black man, died of a spinal injury he suffered after being taken into police custody in April 2015. His death sparked widespread protests and helped inspire a number of reforms, including an effort by local grassroots activists to allow citizens on police trial boards. The boards, introduced in the 1990s, make decisions about disciplining officers that can be affirmed or reversed by the police commissioner.

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Mosby sought to hold Rice responsible for failing to secure Gray in a seat belt while riding in a police transport van following his arrest.

But Williams, according to a Baltimore Sun report, said prosecutors failed to prove the elements of the crimes and wanted him to rely on “presumptions or assumptions.”

Williams had dismissed a second-degree assault charge midway through the trial, while the state had dropped a misconduct charge after recognizing Rice was not directly involved in Gray’s arrest, according to the Sun.

Rice, who is white, is the fourth officer out of six charged by Mosby to go to trial. His trial represents the third acquittal in connection to Gray’s death. Williams cleared officers Edward Nero and Caesar R. Goodson Jr. in May and June, respectively.

The first trial, concerning Officer William Porter, ended in a hung jury, or mistrial, in December. Porter’s second trial is scheduled to begin on September 6. The trial of Officer Garrett E. Miller is slated to begin July 27; Sgt. Alicia D. White, October 13.

All officers charged by Mosby pleaded not guilty.

Closing arguments in Rice’s bench trial came on Thursday, the same day officials from the American Civil Liberties Union of Maryland and the Campaign for Justice, Safety, and Jobs (CJSJ) announced they had filed friend-of-the-court briefs on July 14 in an effort to dismiss a lawsuit filed by Baltimore’s police union, the Fraternal Order of Police Lodge 3.

The union had filed the lawsuit in an attempt to prevent the police department from providing internal affairs police records to Baltimore’s civilian review board.

The CJSJ, which is a coalition of grassroots groups and national organizations like Baltimore United for Change, the Baltimore Algebra Project, and Amnesty International, said the union lawsuit is an effort to block “institutional changes leading to police accountability and transparency.” The coalition’s leadership argued that the suit would disable the “civilian review board from carrying out its responsibility in bringing much-needed transparency to Baltimore policing.”

The union had opposed the reform efforts because the proposed changes would allow citizens who lacked “specialized knowledge” about policing to review internal matters, according to the Sun.

Analysis Law and Policy

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

Jessica Mason Pieklo & Imani Gandy

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

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

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

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

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

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Lawmakers Mounted Attacks on Planned Parenthood

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

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

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

Violence Against Clinics Escalated

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

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

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

A Lot of Lawsuits Got Filed

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

StemExpress Sued Daleiden and CMP

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

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

The case is set for trial in January 2017.

National Abortion Federation Sued Daleiden and CMP

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

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

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

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

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

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

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

Planned Parenthood Sued Daleiden and CMP

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

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

David Daleiden and Sandra Merritt Were Indicted on Felony Charges

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

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