News Law and Policy

Legal Troubles Continue for Group Attacking Planned Parenthood

Imani Gandy

Lawyers for the National Abortion Federation (NAF) filed two whopping motions on November 13 against the anti-choice front group and its leader.

The Center for Medical Progress’ (CMP) legal troubles in connection with its heavily edited undercover videos are not going to abate any time soon.

Lawyers for the National Abortion Federation (NAF) filed two whopping motions on November 13 against the anti-choice front group and its leader, David Daleiden. One asked United States District Court Judge William Orrick to convert into a preliminary injunction the temporary restraining order (TRO) blocking CMP and Daleiden from releasing additional footage or other materials that NAF alleges the anti-choice group fraudulently acquired.

The other asked Judge Orrick to punish Daleiden and CMP for their overbroad disclosure to Congress in response to a congressional subpoena issued by Rep. Jason Chaffetz, head of the House Oversight and Government Reform Committee.

Chaffetz issued the subpoena after a five-and-a-half hour hearing, during which he and other Republican committee members asked Planned Parenthood Federation of America President Cecile Richards to testify on a wide variety of topics, few of which had anything to do with the organization’s fetal tissue donation program. It asks for the unedited video footage related to the “acquisition, preparation, and sale of fetal tissue” that Daleiden and his associates recorded at NAF’s 2014 and 2015 meetings.

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Daleiden has been eager to cooperate with state and federal officials who are investigating Planned Parenthood’s now-defunct fetal tissue donation program. A few weeks after Judge Orrick issued a TRO preventing Daleiden and CMP from publishing additional video footage of the NAF meetings, the anti-choice group asked Judge Orrick to clarify that the TRO does not prohibit it from “producing information in response to investigative subpoenas or other requests for information issued to Defendants by government officials conducting official proceedings.” Daleiden and CMP wanted to provide footage covered by the TRO to the attorneys general of Alabama, Arizona, Michigan, and Oklahoma, though Planned Parenthood does not have fetal tissue donation programs in those states.

NAF countered that CMP and Daleiden should not be given carte blanche to disclose confidential information, and that they should be permitted to disclose information only if the disclosure was in response to a lawful subpoena, such as Chaffetz’s. Undergirding all of NAF’s arguments in court is the concern that further disclosures will simply lead to more harassment and intimidation of its members, including Planned Parenthood affiliates.  

After Daleiden received the congressional subpoena, his lawyers informed Judge Orrick that Daleiden would comply with the subpoena unless instructed otherwise by the court.

But CMP had not yet provided complete responses to NAF’s discovery requests.

For the past several months, NAF has been gathering information through a legal vehicle known as discovery in order to make its case in court for an injunction. One key category 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.

CMP and Daleiden have refused to provide the information, offering myriad reasons for nondisclosure. Daleiden argued that disclosure would implicate his constitutional right to associational privacy and his Fifth Amendment right against self-incrimination. He also argued that identifying his cohorts would violate their Fifth Amendment rights.

Orrick has rejected each of these: Corporations don’t have Fifth Amendment rights so CMP can’t plead them, Fifth Amendment rights are personal and Daleiden cannot assert them on behalf of his cohorts, and none of the information would subject Daleiden to any further criminal liability, so Daleiden cannot hide behind the Fifth Amendment to avoid disclosing the actual names of his associates.

Orrick ordered CMP and Daleiden to disclose the information. CMP and Daleiden asked Orrick to reconsider his ruling. Orrick obliged and last Friday, ruled against CMP and Daleiden again. “Daleiden, it appears, is attempting to hide the ball, contrary to my prior Orders,” Orrick wrote. “It’s time to end this shell game.”

The fact that Daleiden and CMP have tried to avoid providing to NAF the very information that they were eager to provide to Congress and other government officials was apparent to Judge Orrick.

“[I]t is not lost on me that defendants seek expeditiously to provide information to Congress that they have tried in a variety of ways not to provide to NAF,” Orrick wrote in an order issued on October 6.

Accordingly, Judge Orrick ordered CMP to deliver to NAF’s counsel a copy of everything it intended to provide to Congress in response to Chaffetz’s subpoena and forbade the anti-choice front group from turning over any documents or video footage that Congress did not specifically ask for.

“CMP shall not provide to Congress any footage, documents or communications that have not been specifically requested by the subpoena,” Orrick wrote.

But CMP did not limit its congressional disclosure the information requested. It gave the committee 504 hours of video and audio footage as well as hundreds of documents, even though, according to NAF, more than half of the information turned over had nothing whatsoever to do with Planned Parenthood’s legal fetal tissue donation program.

“CMP turned over all 504 hours of video and audio footage illegally taken at NAF’s meetings, as well as hundreds of documents obtained at those meetings—most of which have nothing to do with the ‘acquisition, preparation, and sale of fetal tissue’,” NAF wrote in its brief asking for sanctions.

For example, some of the materials Daleiden turned over to Congress relate to the reproductive health-care needs of transgender patients.

What’s more, NAF contended Daleiden conspired with his “great friend,” and “Internet troll” Charles C. Johnson to release to the public that very same footage, using the disclosure to Congress as a smokescreen.

NAF noted that Johnson initially claimed on his blog that he received the footage from a “congressional staffer,” but that Johnson later changed his story and told the Washington Post that he received the footage from an anonymous tipster named “patriotgeist.” Patriotgeist did not identify himself as being from Congress, according to Johnson’s revised story.

Because of this conflicting story, NAF speculated, “Daleiden forced the overbroad disclosure to Congress and then used it as a smoke screen in order to pass the same materials to Johnson, an individual notorious for publishing on the Internet intimate, private details of people’s lives (including, to take one of many abhorrent examples, the names and pictures of rape victims).”

NAF wrote that it intended to probe the veracity of Johnson’s story at his deposition, which was scheduled to take place last week.

NAF requested various forms of sanctions, including that Daleiden and CMP should be required to pay monetary sanctions sufficient to ensure Daleiden and CMP’s compliance with the TRO. NAF also asked that Daleiden and CMP be required to reimburse NAF for the attorneys’ fees and costs expended in connection with drafting, filing, and arguing in court its motion for contempt. Orrick has not yet given an indication of when he will rule on the motions.

News Violence

Admitted Planned Parenthood Shooter Again Deemed Not Competent for Trial

Jessica Mason Pieklo

A Colorado judge ruled Thursday that Robert Lewis Dear Jr. remains not legally competent to stand trial on charges related to a November 2015 clinic siege that left three dead.

A Colorado judge ruled Thursday that Robert Lewis Dear Jr., the man who has admitted to killing three people during a siege of a Colorado Springs Planned Parenthood, is still not legally competent to stand trial. Dear faces 179 criminal counts, including murder and attempted murder, for the November 27, 2015 attack.

This was the second time Judge Gilbert Martinez has made such a determination. In May, Martinez made the ruling following two days of hearings where forensic pathologists told the court that Dear’s extreme political beliefs amounted to a delusional disorder sufficient to render Dear incompetent for trial.

Dear had previously told law enforcement officers and state mental health evaluators that he believed the federal government was persecuting Christians.

During Dear’s May competency hearing, Dear argued his attorneys were seeking a ruling of legal incompetence over his objections. Dear said during that hearing that he instead wanted to put forward a defense during trial that his actions were legally justified to prevent the greater evil of Planned Parenthood “selling baby parts,” a claim based off a series of discredited videos that claimed the reproductive health-care provider was illegally profiting from fetal tissue donations.

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Multiple state and federal investigations have not found any wrongdoing with regard to Planned Parenthood’s fetal tissue donation program.

Dear’s proposed “justified homicide” defense is the same on that Scott Roeder, the man who murdered Kansas abortion provider Dr. George Tiller in 2009, tried to raise during his trial. Operation Rescue President Troy Newman had also advocated for the murder of abortion providers under the theory that killing abortion providers prevents the so-called greater harm of those providers performing legal abortions. He has since walked back those statements. Newman is an advisor to David Daleiden, the anti-choice activist behind the videos Dear referenced to law enforcement.

Dear’s Colorado siege was not his first alleged anti-choice action. Court records show Dear had superglued locks at an abortion clinic in South Carolina and deeply admired Paul Hill, a former minister who was executed in 2003 for the 1994 murders of Florida abortion provider Dr. John Britton and Britton’s bodyguard.

As a result of Thursday’s ruling Dear will remain in a Colorado state mental health facility until his next evaluation by the court, which will take place in November.

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.


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