Analysis Law and Policy

Abortion Providers Should Take Legal Action Against the Center for Medical Progress—Here’s Why

Jessica Mason Pieklo & David S. Cohen

The videos released by CMP show quite definitively that Planned Parenthood is not engaged in the illegal sale of fetal tissue. They also show something else, something that CMP likely did not intend—that their own coordinated attack violated a host of laws.

See more of our coverage on the misleading Center for Medical Progress videos here.

The Center for Medical Progress (CMP) released the second of what the organization claims will be a series of videos targeting Planned Parenthood’s biomedical research operations. The campaign, orchestrated by some of the anti-abortion movement’s most radical members, so far relies on surreptitiously videotaping providers and trying to bait them into agreeing to sell fetal organs and tissue at a profit and in violation of the law. It didn’t work.

The videos released by CMP show quite definitively that Planned Parenthood is not engaged in the illegal sale of fetal tissue. They also show something else, something that CMP likely did not intend—that their own coordinated attack violated a host of laws.

CMP videotaped the conversations with Dr. Deborah Nucatola and Dr. Mary Gatter while they were each engaged in private discussions in restaurants. Nucatola’s conversation took place in California; although the location of Gatter’s is as yet unknown, she lives and works in California, which suggests that her meeting was also in the state. This fact is incredibly important, because it’s very likely that CMP violated California’s two-party consent wiretapping law.

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According to the Digital Media Law Project, California is one of 11 states that require the consent of every party before a conversation can be recorded. California’s statute on the issue prohibits “record[ing] the confidential communication” between two or more people “without the consent of all parties.” A person recording such a conversation can be fined up to $2,500 for a first offense or up to $10,000 for subsequent offenses, and can face a one-year prison sentence. Meanwhile, the person who is surreptitiously recorded can sue for $5,000, or up to three times actual damages—which could include any financial loss related to the recordings, including emotional distress. They can also sue to enjoin, or block, future releases of private recordings.

Based on what is publicly known about the recordings, at the very least, California officials should be investigating CMP for repeatedly violating this law. There is no doubt whatsoever that neither Nucatola nor Gatter consented to having her conversation recorded. Moreover, California courts have already determined that hidden videorecorders fall within the law’s prohibition of secretly recording a conversation.

The only real element that might salvage CMP’s recording its conversation with either doctor is the law’s requirement that the communication at hand be confidential. As California law defines it, a confidential communication is one “carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto.” The law excludes communications made “in a public gathering … in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”

Where does a restaurant conversation fit within this law? The statute doesn’t specifically say, but based on cases that have interpreted the law, the test would be whether the parties to the conversation would have reasonably expected that their conversation was private. In other words, would the two doctors and the representatives from CMP have been reasonable in expecting that no one else would overhear or record the conversation?

There is some precedent that would initially suggest the contrary: In a 1999 case involving NBC secretly recording a business pitch to potential investors at a restaurant, the California Court of Appeals found that the conversation was not private because there were no secrets discussed and the business had the same discussions with other investors.

However, this is an entirely different situation than what happened with Nucatola and Gatter. In fact, in comparison to the NBC case, there are strong arguments here that these were indeed confidential communications. The conversations were not about business investing, but rather about highly sensitive medical practices in a field that is, as the fallout has confirmed, very controversial. As Nucatola says in her recorded conversation, “We’re the target.” This recognition concerning this sensitive topic does not correspond with a reasonable belief that the conversation was open for the world to hear.

Moreover, the way that Nucatola and Gatter talk, which has also been lambasted by abortion opponents, further proves this point. When doctors talk among trusted colleagues in private settings, they are more apt to use, as Dr. Willie Parker has written, matter-of-fact and frank language that may not be palatable to the general public. This is very different than business language about trying to obtain new investors; this is a private discussion among medical professionals, or so Nucatola and Gatter obviously believe.

Gatter’s conversation has one extra fact that makes it even more likely to be found a confidential communication. She was sitting in a restaurant booth, rather than a table out in the open on the restaurant floor, as Nucatola seems to have been. This kind of restaurant booth is an even more private setting, giving Gatter an additional argument that CMP violated the law in recording her conversation.

Overall, it would be difficult to argue against the conclusion that Nucatola and Gatter did not expect their conversations to be overheard or recorded. Thus, without obtaining their consent, the CMP likely violated the California penal code, and should be subject to both criminal penalties and civil suit.

But even if the answer is not as obvious as we think it is, there is more than enough reason for state authorities to investigate and send the message that this kind of secret recording of people’s conversations is a public concern. Abortion providers, other medical professionals, and everyone else needs this reassurance against the unscrupulous practices of these fake, unethical, and likely illegal coordinated attack operations. These operations are not about advancing any public health gains. Indeed, by targeting valuable biomedical research, CMP and other anti-choice advocates have shown their campaign is fundamentally an anti-science, anti-health care one. But even further, no good public policy, let alone reproductive and biomedical policy, can flow from a campaign of lies and smears.

Abortion providers who were recorded or possibly recorded also should consider their own legal recourse. As noted, if a video is released with them in it, they can sue for damages. And, for providers who had private conversations with CMP and fear their conversations could be released like those of Nucatola or Gatter, California’s statute allows them to seek an injunction to prevent the recording from being released before the public sees it.

CMP has threatened to release even more videos along these lines. To the extent they were recorded in California, the same analysis applies. Furthermore, any that were recorded in Connecticut, Florida, Hawaii, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, or Washington raise similar concerns, as these states also require that all parties consent to most recordings.

In addition to likely violating California’s two-party consent statute, there are serious questions about CMP’s invasions of provider and patient privacy. In a letter sent by Planned Parenthood counsel to the House Energy and Commerce Committee, Planned Parenthood disclosed it believed that “on at least one occasion a representative from Biomax was shown a highly sensitive area in a clinic where tissue is processed after abortion procedures.” The letter continues, “[W]hile this work is standard and essential during any abortion procedure, any filming in such an area would be an extremely serious invasion of our patients’ privacy and dignity.”

California law recognizes a claim for a violation of privacy rights in the situation described by the Planned Parenthood letter, which means the health-care provider and the doctors targeted could likely bring a civil claim for damages if the Biomax infiltration took place in that state. Called an intrusion on seclusion claim, it applies when someone intentionally intruded, physically or otherwise, upon the private affairs of another person. That invasion must be of a private matter to the plaintiff and be offensive to a reasonable person. It’s hard to consider a more offensive action than lying your way into an abortion clinic and videotaping the remains of a patient’s abortion procedure without their consent.

If the entire campaign against Planned Parenthood has a bit of a paparazzi feel to it, it should. It’s as manufactured as a tabloid affair, so it is only fitting that California’s anti-paparazzi statute also could prove to be a problem for CMP to the extent that any video’s captured private patient information. This law prohibits anyone from trespassing onto another person’s land or property with the express intention of gathering any kind of images of a person engaging in a personal or familial activity. Under the statute, CMP doesn’t even need to physically approach its subject to be liable. All types of recording, including hidden cameras, microphones, and high-power photography lenses, violate the statute if a reasonable person would find the recording offensive and if they took place somewhere the subject had a reasonable expectation of privacy—such as their abortion clinic.

California’s anti-paparazzi statute could prove problematic not just for CMP, but also for Troy Newman and Operation Rescue as well. Under the law, anyone who “directs, solicits, actually induces, or actually causes another person” to violate the statue is also liable for the violation. Newman has a habit of remaining one step removed from the anti-abortion movement’s most dangerous elements, but this time he’s specifically listed on the CMP incorporation papers.

Anyone who violates the anti-paparazzi law faces fines ranging from $5,000 to $50,000.

There are also possible contractual claims against CMP, as the professional meetings of the National Abortion Federation and Planned Parenthood that CMP gained access to both require attendees to sign confidentiality agreements. To the extent that any of the recordings take place at these meetings, CMP has violated these agreements.

These are just the latest questions about the legality of CMP’s conduct. The Huffington Post has also reported on serious questions about the nonprofit status of CMP—questions substantial enough to warrant an investigation by the Internal Revenue Service. And according to Planned Parenthood’s letter to the House Commerce and Energy Committee, we can expect more videos to follow. Based on what’s been released so far, those videos are not likely to unearth any evidence of wrongdoing by Planned Parenthood, but they will raise plenty of issues about the ethics, and the legality, of the anti-abortion movement.

Abortion advocates need to consider shifting the conversation by calling on government officials to immediately investigate CMP’s illegal activities. And any abortion provider who has been or fears they will be harmed by CMP’s actions should also seriously consider taking legal action. CMP needs to be held accountable for its illegalities.

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