News Law and Policy

Planned Parenthood Attack Group Can’t Catch a Break in Court

Imani Gandy

The Center for Medical Progress’ streak of bad legal luck continued last week, as the anti-choice front group lost its latest bid to avoid providing information about the names of the people involved in CMP's smear campaign against Planned Parenthood.

The Center for Medical Progress’ (CMP) streak of bad legal luck continued last week, as the anti-choice front group lost its latest bid to avoid providing information to the National Abortion Federation (NAF) about the names and identities of the people involved in CMP’s smear campaign against Planned Parenthood.

NAF is gathering information through a legal vehicle known as discovery in order to make its case in court that United States District Court Judge William Orrick should convert the temporary restraining order he issued in late July into a preliminary injunction.

NAF filed a lawsuit in late July alleging civil conspiracy, racketeering, fraud, and breach of contract, among other civil and criminal allegations, stemming from the release of video footage deceptively edited to suggest that NAF members, including certain Planned Parenthood affiliates, are engaged in illegal trafficking of fetal tissue.

NAF sought a temporary restraining order blocking any further release of the attack videos in order to protect its members from anti-choice activists’ harassment and violent threats.

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Orrick issued the temporary restraining order, and ordered expedited discovery so that NAF could gather evidence to support its effort to obtain a preliminary injunction blocking CMP and David Daleiden—the group’s leader—from releasing additional footage or other materials that NAF alleges the anti-choice front group fraudulently acquired.

One key category of information sought by NAF is the names and identities of the people who received a report that CMP has said it distributed regarding its activities at NAF’s meetings, along with the names and identities of the CMP agents who infiltrated NAF’s meetings in 2014 and 2015.

Daleiden and CMP protested that NAF’s requests for the names and identities of the people involved with their campaign against Planned Parenthood, what they call a “membership list,” would be premature since the discovery ordered by Orrick pertains only to the preliminary injunction. They also claimed that turning over that information would intrude on Daleiden’s right to associational privacy under the First Amendment, stating that “[t]he First Amendment provides strong protections to political activists who seek out like-minded individuals with which to brainstorm ideas for their activism.”

Daleiden and CMP additionally argued that turning over the “membership list” might jeopardize the Fifth Amendment rights of the people on it.

Orrick disagreed in a four-page order issued on October 30.

“I find that for purposes of allowing NAF to prepare for the Preliminary Injunction proceedings, defendants SHALL disclose to NAF (by providing unredacted documents and written responses) the identities of individuals and organizations who received confidential NAF information,” Orrick wrote.

He ordered that the information be maintained confidential and protected from public disclosure in accordance with a protective order in place between the parties to the lawsuit.

Orrick did not make any particular findings as to whether Daleiden and CMP’s assertion of First Amendment associational rights was legitimate, but reiterated his conclusion that “the Protective Order adequately protects any First Amendment associational rights of CMP and these few individuals/organizations, if such rights exist.”

Orrick also ruled that Daleiden could not assert Fifth Amendment rights on behalf of anyone but himself.

“Daleiden cannot refuse to identify these individuals based on those individual’s [sic] Fifth Amendment rights,” he wrote. Orrick requested that NAF and Daleiden file supplemental briefs addressing whether Daleiden “can appropriately assert his personal Fifth Amendment right to shield the names of these individuals and whether any such privilege has been waived.” Those briefs were due last Wednesday.

CMP and Daleiden have filed documents asking the court to either reconsider its ruling that the so-called membership list must be produced or to put a temporary hold on the case while CMP and Daleiden pursue their First Amendment associational rights claim in appellate court.

If Orrick refuses both requests, CMP and Daleiden will likely ask the Ninth Circuit to stay the case and review their First and Fifth Amendment claims.

Although NAF has thus far been successful in stymieing Daleiden’s efforts to release additional attack videos, 275 minutes of footage were published on the YouTube channel of hacker Andrew “Weev” Auernheimer in coordination with Charles C. Johnson, the controversial conservative activist and publisher of GotNews. Johnson claims that he received an anonymous email containing the video footage from someone with the user name “patriotgeist,” according to the Washington Post.

The law firm representing NAF, Morrison & Foerster, sent a cease and desist letter to Johnson, which Johnson has said he intends to contest. NAF subpoenaed Johnson, demanding that he produce any communications (emails, text messages, instant messages, and the like) with David Daleiden and “patriotgeist.”

In a blog post dated November 2, Johnson claims that he doesn’t have any such unreleased documents, writing, “Johnson is unsure of how to comply with material that doesn’t exist.” 

Johnson filed documents in court objecting to the subpoena, but Orrick rejected Johnson’s objections and ordered him to produce the documents NAF requested and to sit for a deposition on November 16.

The source of the leak is unclear. Johnson claims that he received the video footage from a congressional leak. Orrick, however, is skeptical.

“On October 22, the defendants notified me that a third party allegedly received videotapes covered by the TRO from a ‘source on Capitol Hill’ and had posted them online,” Orrick wrote in his October 30 order. “Given the security procedures imposed by the House committee that defendants described during the last hearing, it is unclear whether defendants’ representation is accurate.”

While it is accurate that Johnson is claiming that the leak came from Congress, it is unclear whether that is true, and if it is, who the source of the leak is.

NAF CEO Vicki Saporta said in a statement that Congress needs to “conduct a full investigation” to determine whether a member of Congress was the source of the leak.

News Abortion

Study: United States a ‘Stark Outlier’ in Countries With Legal Abortion, Thanks to Hyde Amendment

Nicole Knight Shine

The study's lead author said the United States' public-funding restriction makes it a "stark outlier among countries where abortion is legal—especially among high-income nations."

The vast majority of countries pay for abortion care, making the United States a global outlier and putting it on par with the former Soviet republic of Kyrgyzstan and a handful of Balkan States, a new study in the journal Contraception finds.

A team of researchers conducted two rounds of surveys between 2011 and 2014 in 80 countries where abortion care is legal. They found that 59 countries, or 74 percent of those surveyed, either fully or partially cover terminations using public funding. The United States was one of only ten countries that limits federal funding for abortion care to exceptional cases, such as rape, incest, or life endangerment.

Among the 40 “high-income” countries included in the survey, 31 provided full or partial funding for abortion care—something the United States does not do.

Dr. Daniel Grossman, lead author and director of Advancing New Standards in Reproductive Health (ANSIRH) at the University of California (UC) San Francisco, said in a statement announcing the findings that this country’s public-funding restriction makes it a “stark outlier among countries where abortion is legal—especially among high-income nations.”

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The researchers call on policymakers to make affordable health care a priority.

The federal Hyde Amendment (first passed in 1976 and reauthorized every year thereafter) bans the use of federal dollars for abortion care, except for cases of rape, incest, or life endangerment. Seventeen states, as the researchers note, bridge this gap by spending state money on terminations for low-income residents. Of the 14.1 million women enrolled in Medicaid, fewer than half, or 6.7 million, live in states that cover abortion services with state funds.

This funding gap delays abortion care for some people with limited means, who need time to raise money for the procedure, researchers note.

As Jamila Taylor and Yamani Hernandez wrote last year for Rewire, “We have heard first-person accounts of low-income women selling their belongings, going hungry for weeks as they save up their grocery money, or risking eviction by using their rent money to pay for an abortion, because of the Hyde Amendment.”

Public insurance coverage of abortion remains controversial in the United States despite “evidence that cost may create a barrier to access,” the authors observe.

“Women in the US, including those with low incomes, should have access to the highest quality of care, including the full range of reproductive health services,” Grossman said in the statement. “This research indicates there is a global consensus that abortion care should be covered like other health care.”

Earlier research indicated that U.S. women attempting to self-induce abortion cited high cost as a reason.

The team of ANSIRH researchers and Ibis Reproductive Health uncovered a bit of good news, finding that some countries are loosening abortion laws and paying for the procedures.

“Uruguay, as well as Mexico City,” as co-author Kate Grindlay from Ibis Reproductive Health noted in a press release, “legalized abortion in the first trimester in the past decade, and in both cases the service is available free of charge in public hospitals or covered by national insurance.”

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions


Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.


But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.


The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.


In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.