See more of our coverage on the misleading Center for Medical Progress videos here.
United States District Court Judge William Orrick last week refused to grant the request from David Daleiden and the Center for Medical Progress (CMP) to submit to the U.S. Supreme Court video footage from the smear campaign against Planned Parenthood.
Daleiden and CMP, an anti-choice front group created to attack Planned Parenthood through a series of heavily edited videos, requested that Orrick lift the temporary restraining order (TRO) he issued in July so they could submit to the Supreme Court audio recordings surreptitiously recorded at the private meetings of the National Abortion Federation (NAF). Daleiden and an associate at CMP were recently indicted on felony charges related to those recordings.
The request was in connection with an amicus brief they intend to file in Whole Woman’s Health v. Hellerstedt, a landmark Supreme Court case that could remove abortion access for many Texas women and serve as a copycat law for state legislatures looking to end legal abortion.
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Those recordings featured comments from three speakers on a panel about targeted regulation of abortion providers (TRAP) laws at NAF’s 2015 annual meeting, along with remarks from an independent clinic owner at NAF’s 2014 annual meeting. The recordings would, according to Daleiden and CMP, “allow Defendants to make the points they need to make while still protecting the anonymity of all non-presenters at the conference.”
Citing “the depth of their knowledge regarding the abortion industry gained as a result of the multi-year investigative journalism venture, the Human Capital Project,” Daleiden and CMP claim that they are “uniquely qualified to file an amicus brief in Whole Woman’s Health.”
The defendants claimed that the recordings would counter the “dire predictions made by abortion industry representatives (including Planned Parenthood) in their filings in the Supreme Court.” Those dire predictions? That the omnibus anti-choice bill known as HB 2 would decimate abortion access in Texas and lead to half of the clinics in Texas shutting their doors.
Daleiden and CMP claimed that the comments from presenters at NAF’s 2015 annual meeting demonstrate that market forces are at work in abortion access and that abortion providers can remain viable despite TRAP laws in Texas. The recording from the 2014 meeting featured an independent clinic owner who purportedly characterized Planned Parenthood’s business model as one in which clinics are opened irrespective of patient need.
The public interest in these comments outweighs the “insubstantial privacy interest at issue for NAF or its members who have already made public their support for abortion rights,” Daleiden and CMP wrote in their brief.
NAF flatly disagreed. “[T]he mere fact that David Daleiden wants to file an amicus brief in the Supreme Court cannot possibly trump the critically-important privacy interests protected by this Court’s TRO,” NAF wrote in its responsive brief.
NAF argued that Daleiden had misrepresented the nature of the comments he sought to include in his amicus brief filing.
NAF further noted that even though the four comments from the TRAP law panel presenters and the independent clinic owner, taken together, last less than eight minutes, Daleiden sought to disclose audio files that are more than three hours long. The three hours of material are not relevant to any of the issues in Whole Woman’s Health, according to NAF.
“I have reviewed the portions of the recordings that defendants argue rebut or undercut the arguments made by NAF and Planned Parenthood in the Supreme Court case,” he wrote. “Defendants have mischaracterized the nature of the comments made by the presenters and the independent clinic owner; the comments are not directly relevant to the amicus brief statements defendants attribute to NAF and Planned Parenthood.”
NAF also took issue with Daleiden’s claim that the privacy interests at issue are “insubstantial.”
Rejecting Daleiden’s argument that the presenters and the independent clinic owner identified in the audio recordings were courageous enough to publicly identify themselves as pro-choice and that their decision to openly support access to safe, legal abortion care somehow lessened their privacy interest, NAF wrote, “publicly identifying oneself as a NAF member and advocate of the pro-choice movement is a far cry from being identified publicly by Daleiden and his cohorts as being involved in ‘baby trafficking.’”
NAF pointed out that even if specific people are not identified by name in the material, the very disclosure of the material “will inevitably lead to harassment, intimidation, and violence perpetrated at NAF member clinics.”
“The three people murdered in Colorado were not featured on any of Daleiden’s videotapes,” NAF argued, “Yet they were made to suffer the terrible consequences of his and CMP’s hate campaign.”
Orrick again sided with NAF.
“It is not necessary here to repeat the reasons I issued the TRO in the first place—the deceitful lengths the defendants went to obtain these recordings and the legitimate safety concerns of NAF and its members, made all too real by the targeting of individuals on the publicly disclosed videos, the substantial increase in threats of violence to NAF members and more recently the tragedy in Colorado Springs,” Orrick wrote.
“The question is whether defendants’ desire to use the information in their amicus briefs should permit an exception to the TRO,” Orrick continued. “The answer is ‘No.’”
NAF and Daleiden are waiting for Orrick to issue a ruling as to whether he will convert the TRO he issued blocking Daleiden and CMP from releasing any more video footage recorded at NAF’s meetings into a preliminary injunction. Orrick heard oral arguments on that issue in December.
Orrick’s order refusing CMP and Daleiden’s request to modify the TRO to permit disclosure to the Supreme Court, however, signals that CMP and Daleiden are likely to lose on that issue too.
“While defendants argue that the individuals making the four comments they are interested in using in their amicus brief (three speakers on the 2015 NAF panel and the independent clinic owner) are publicly known as involved in ‘abortion advocacy,’ that contention does not mean that those individuals have no interest in the confidentiality of the specific comments and statements captured on the recording made during the NAF Annual Meetings,” Orrick wrote.
“This is especially true given the allegations—which will be addressed shortly in the ruling on the motion for a preliminary injunction—that defendants’ videos released as part of their Human Capital Project have been selectively edited to mischaracterize the comments made by the identified speakers, and, as a result, those speakers have been harassed and threatened.”