Analysis Law and Policy

Judge Extends Restraining Order Against Orchestrators of Planned Parenthood Smear Campaign

Imani Gandy

United States District Court Judge William Orrick confirmed what reproductive rights advocates have been claiming since July: David Daleiden is no journalist, and his organization, the Center for Medical Progress (CMP), is built on fraud.

On Friday, United States District Court Judge William Orrick confirmed what reproductive rights advocates have been claiming since July: David Daleiden is no journalist, and his organization, the Center for Medical Progress (CMP), is built on fraud. Daleiden’s campaign accusing Planned Parenthood of selling fetal tissue was never about exposing alleged criminal activity, the judge pointed out; it was about inventing a narrative that Daleiden hoped would destroy the organization.

It was the latest loss for the anti-choice activists in the lawsuit brought by the National Abortion Federation (NAF) against Daleiden, CMP, Troy Newman, and others related to the videos released last summer.

In his blistering 42-page order released last week, Orrick converted a temporary restraining order (TRO) blocking Daleiden and CMP from releasing any more of the footage fraudulently acquired at NAF’s highly securitized private events into a preliminary injunction, which will remain in place while the parties battle it out in court.

“Defendants did not—as Daleiden repeatedly asserts—use widely accepted investigative journalism techniques,” Orrick wrote, countering the claim that the methods Daleiden employed for his investigation were “standard for investigative reporting.”

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Daleiden and his cohorts recorded more than 500 hours of video as a part of the so-called Human Capital project, Daleiden’s attempt to erroneously claim that Planned Parenthood is in the business of selling fetal tissue for profit. To do so, Orrick argued, they used falsified business documents and identification cards.

“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 numerous NAF representatives and NAF members in order to infiltrate NAF and implement their Human Capital Project,” wrote Orrick in his order.

“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 conduct,” Orrick continued.

Numerous investigations on the state and federal level have yet to find any wrongdoing on the part of Planned Parenthood.

To convince the court that Daleiden’s behavior was simply standard journalistic practice, Daleiden cited case law that Orrick ultimately found unconvincing.

In Medical Laboratory Management Consultants v. American Broadcasting Companies, Inc., reporters investigating potential violation of federal regulations posed as employees of fictitious labs and secretly recording meetings in order to investigate whether an existing lab was misreading Pap tests. And in Desnick v. American Broadcasting Companies, Inc., journalists investigating practices of an ophthalmology clinic posed as patients of an eye center and secretly recorded their eye exams. In both cases, judges ruled in favor of the journalists as to the fraud claims alleged against them. Daleiden argued that the goal in those cases was the same as his own: “Not to obtain money, property, goods, or services, but to gather information about illegal and unethical practices.”

Orrick rejected Daleiden’s attempts to compare himself to the reporters in those cases: In each, the reporters verbally misrepresented themselves to the target of their investigation, but, as Orrick wrote, “the reporters did not create fictitious documents, register a fictitious company, or intentionally agree to confidentiality agreements before making their undercover recordings,” as Daleiden did. Orrick also pointed out that Daleiden went through fraudulent lengths to secure his recordings, which went beyond what the reporters in Medical Laboratory Management Consultants and Desnick did.

Perhaps most importantly, Orrick pressed, if Daleiden’s goal was to uncover alleged illegal activity by Planned Parenthood, then where was evidence that Daleiden was even in contact with law enforcement?

“I have reviewed the recordings relied on by defendants and find no evidence of criminal activity,” Orrick wrote. “And I am skeptical that exposing criminal activity was really defendants’ purpose, since they did not provide recordings to law enforcement following the NAF 2014 Annual Meeting and only provided a bit of information to law enforcement beginning in May, 2015.”

Instead, Orrick noted, Daleiden and CMP’s odd behavior in failing to involve law enforcement supported “NAF’s contention that defendants’ goal instead is to falsely portray the operations of NAF’s members”—which include Planned Parenthood—”through continued release of its ‘curated’ videos as part of its strategy to alter the political landscape with respect to abortion and the public perception of NAF’s members.”

Recognizing the political nature of Daleiden’s efforts, Orrick pointed out that Daleiden and CMP “decided it was more important to ‘curate’ and release the Project videos starting in July 2015.”

Friday’s order not only permanently blocked the release of any more video footage from NAF’s annual meetings, it clearly and unequivocally cleared Planned Parenthood and NAF of any wrongdoing and exposed Daleiden and CMP’s efforts for the political smear they are. Again.

The order also did something else critically important: It re-centered the controversy cooked up by Daleiden and his cohorts back on the very real threats of violence faced as a result by abortion doctors, providers, patients, and even unrelated bystanders, as was the case with the Colorado Springs Planned Parenthood shooting. Orrick reiterated that the danger to these groups is severe enough to warrant the security measures Daleiden disregarded.

Due to the threats of violence—including from people like Troy Newman, who was an officer of CMP and helped Daleiden plan his sting operation—NAF has had to increase its security over the years. What were once meetings open to the public have become secret affairs, with stringent protocols put into place in order to protect NAF’s members. One key component of NAF’s security mechanism is the confidentiality agreements that every attendee is required to sign.

For months, NAF has argued that Daleiden and CMP waived their First Amendment rights when they signed those agreements, promising to maintain the confidentiality of any information they gleaned from NAF’s meetings.

After reviewing evidence submitted by Daleiden, CMP, and NAF, Orrick sided with NAF.

“[T]he First Amendment does not confer on the press a constitutional right to disregard promises that would otherwise be enforced under state law,” Orrick wrote in his order.

“That defendants intended to infiltrate the NAF Annual Meetings in order to uncover evidence of alleged criminal wrong doing … does not give defendants an automatic license to disregard the confidentiality provisions.”

Recognizing the important First Amendment issues implicated by his ruling—that forbidding any further release of video footage constitutes prior restraint, or pre-publication censorship—Orrick noted that “[i]n rare circumstances, freedom of speech must be balanced against and give way to the protection of other compelling Constitutional rights, such as the First Amendment’s right to freedom of association, the Fifth and Fourteenth Amendments’ protection of liberty interests, and the right to privacy.”

Orrick ruled that NAF’s case against Daleiden and CMP was just such a rare circumstance.

Orrick’s order also matters for the other two lawsuits associated with the CMP videos. In Texas, Daleiden is under criminal indictment for falsifying documents to gain access to NAF meetings and associates. Meanwhile, Planned Parenthood filed its own lawsuit against CMP in California federal court, alleging the organization is not much more than a criminal conspiracy designed to try and take down Planned Parenthood. While Orrick’s order has no binding effect in these lawsuits, its conclusions will help inform how attorneys in those cases proceed, including Orrick’s conclusion that Daleiden is not a journalist and his actions were fraudulent.

Not that any of the court’s actions matters to Daleiden. On Monday, despite the order barring CMP and its members from releasing footage recorded at “any NAF annual meetings,” footage of any NAF member names learned at those meetings, or information about future NAF meetings, Daleiden and CMP released yet another video purporting to show illegal activities by Planned Parenthood officials.

Daleiden has said that the latest video footage was filmed at a conference of the Association of Reproductive Health Professionals prior to any NAF meeting that Daleiden and his co-conspirators attended. He believes that the video is not covered by the injunction.

This isn’t the first time that questionable materials have surfaced during the court proceedings. In late October of last year, additional footage of NAF meetings found its way on to the Internet thanks to Internet troll and disgraced blogger Chuck C. Johnson, and notorious hacker Andrew “Weev” Auernheimer. Johnson first claimed that the leak came from Congress, but then changed his story and claimed he received the footage from an anonymous person with the user name “patriotgeist.”

The leak occurred after Daleiden and CMP produced NAF materials covered by the TRO to Congress, including materials that were not directly responsive to the subpoena issued by Congress. NAF asked Orrick to sanction Daleiden and CMP as a result of the leak. In Friday’s order, Orrick declined, but warned defendants that “in the future, before they take it upon themselves to arguably violate an order from this Court—even if in good faith—they should seek clarification from me first.”

Vicki Saporta, NAF’s CEO, believes that the most recent video is “total retribution” for NAF’s win in court, according to U.S. News and World Report. “There’s nothing in this video that’s new or relevant. It’s just Daleiden losing again and making more false and misleading claims,” Saporta said.

Analysis Politics

The 2016 Republican Platform Is Riddled With Conservative Abortion Myths

Ally Boguhn

Anti-choice activists and leaders have embraced the Republican platform, which relies on a series of falsehoods about reproductive health care.

Republicans voted to ratify their 2016 platform this week, codifying what many deem one of the most extreme platforms ever accepted by the party.

“Platforms are traditionally written by and for the party faithful and largely ignored by everyone else,” wrote the New York Times‘ editorial board Monday. “But this year, the Republicans are putting out an agenda that demands notice.”

“It is as though, rather than trying to reconcile Mr. Trump’s heretical views with conservative orthodoxy, the writers of the platform simply opted to go with the most extreme version of every position,” it continued. “Tailored to Mr. Trump’s impulsive bluster, this document lays bare just how much the G.O.P. is driven by a regressive, extremist inner core.”

Tucked away in the 66-page document accepted by Republicans as their official guide to “the Party’s principles and policies” are countless resolutions that seem to back up the Times‘ assertion that the platform is “the most extreme” ever put forth by the party, including: rolling back marriage equalitydeclaring pornography a “public health crisis”; and codifying the Hyde Amendment to permanently block federal funding for abortion.

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Anti-choice activists and leaders have embraced the platform, which the Susan B. Anthony List deemed the “Most Pro-life Platform Ever” in a press release upon the GOP’s Monday vote at the convention. “The Republican platform has always been strong when it comes to protecting unborn children, their mothers, and the conscience rights of pro-life Americans,” said the organization’s president, Marjorie Dannenfelser, in a statement. “The platform ratified today takes that stand from good to great.”  

Operation Rescue, an organization known for its radical tactics and links to violence, similarly declared the platform a “victory,” noting its inclusion of so-called personhood language, which could ban abortion and many forms of contraception. “We are celebrating today on the streets of Cleveland. We got everything we have asked for in the party platform,” said Troy Newman, president of Operation Rescue, in a statement posted to the group’s website.

But what stands out most in the Republicans’ document is the series of falsehoods and myths relied upon to push their conservative agenda. Here are just a few of the most egregious pieces of misinformation about abortion to be found within the pages of the 2016 platform:

Myth #1: Planned Parenthood Profits From Fetal Tissue Donations

Featured in multiple sections of the Republican platform is the tired and repeatedly debunked claim that Planned Parenthood profits from fetal tissue donations. In the subsection on “protecting human life,” the platform says:

We oppose the use of public funds to perform or promote abortion or to fund organizations, like Planned Parenthood, so long as they provide or refer for elective abortions or sell fetal body parts rather than provide healthcare. We urge all states and Congress to make it a crime to acquire, transfer, or sell fetal tissues from elective abortions for research, and we call on Congress to enact a ban on any sale of fetal body parts. In the meantime, we call on Congress to ban the practice of misleading women on so-called fetal harvesting consent forms, a fact revealed by a 2015 investigation. We will not fund or subsidize healthcare that includes abortion coverage.

Later in the document, under a section titled “Preserving Medicare and Medicaid,” the platform again asserts that abortion providers are selling “the body parts of aborted children”—presumably again referring to the controversy surrounding Planned Parenthood:

We respect the states’ authority and flexibility to exclude abortion providers from federal programs such as Medicaid and other healthcare and family planning programs so long as they continue to perform or refer for elective abortions or sell the body parts of aborted children.

The platform appears to reference the widely discredited videos produced by anti-choice organization Center for Medical Progress (CMP) as part of its smear campaign against Planned Parenthood. The videos were deceptively edited, as Rewire has extensively reported. CMP’s leader David Daleiden is currently under federal indictment for tampering with government documents in connection with obtaining the footage. Republicans have nonetheless steadfastly clung to the group’s claims in an effort to block access to reproductive health care.

Since CMP began releasing its videos last year, 13 state and three congressional inquiries into allegations based on the videos have turned up no evidence of wrongdoing on behalf of Planned Parenthood.

Dawn Laguens, executive vice president of Planned Parenthood Action Fund—which has endorsed Hillary Clinton—called the Republicans’ inclusion of CMP’s allegation in their platform “despicable” in a statement to the Huffington Post. “This isn’t just an attack on Planned Parenthood health centers,” said Laguens. “It’s an attack on the millions of patients who rely on Planned Parenthood each year for basic health care. It’s an attack on the brave doctors and nurses who have been facing down violent rhetoric and threats just to provide people with cancer screenings, birth control, and well-woman exams.”

Myth #2: The Supreme Court Struck Down “Commonsense” Laws About “Basic Health and Safety” in Whole Woman’s Health v. Hellerstedt

In the section focusing on the party’s opposition to abortion, the GOP’s platform also reaffirms their commitment to targeted regulation of abortion providers (TRAP) laws. According to the platform:

We salute the many states that now protect women and girls through laws requiring informed consent, parental consent, waiting periods, and clinic regulation. We condemn the Supreme Court’s activist decision in Whole Woman’s Health v. Hellerstedt striking down commonsense Texas laws providing for basic health and safety standards in abortion clinics.

The idea that TRAP laws, such as those struck down by the recent Supreme Court decision in Whole Woman’s Health, are solely for protecting women and keeping them safe is just as common among conservatives as it is false. However, as Rewire explained when Paul Ryan agreed with a nearly identical claim last week about Texas’ clinic regulations, “the provisions of the law in question were not about keeping anybody safe”:

As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”

Myth #3: 20-Week Abortion Bans Are Justified By “Current Medical Research” Suggesting That Is When a Fetus Can Feel Pain

The platform went on to point to Republicans’ Pain-Capable Unborn Child Protection Act, a piece of anti-choice legislation already passed in several states that, if approved in Congress, would create a federal ban on abortion after 20 weeks based on junk science claiming fetuses can feel pain at that point in pregnancy:

Over a dozen states have passed Pain-Capable Unborn Child Protection Acts prohibiting abortion after twenty weeks, the point at which current medical research shows that unborn babies can feel excruciating pain during abortions, and we call on Congress to enact the federal version.

Major medical groups and experts, however, agree that a fetus has not developed to the point where it can feel pain until the third trimester. According to a 2013 letter from the American Congress of Obstetricians and Gynecologists, “A rigorous 2005 scientific review of evidence published in the Journal of the American Medical Association (JAMA) concluded that fetal perception of pain is unlikely before the third trimester,” which begins around the 28th week of pregnancy. A 2010 review of the scientific evidence on the issue conducted by the British Royal College of Obstetricians and Gynaecologists similarly found “that the fetus cannot experience pain in any sense prior” to 24 weeks’ gestation.

Doctors who testify otherwise often have a history of anti-choice activism. For example, a letter read aloud during a debate over West Virginia’s ultimately failed 20-week abortion ban was drafted by Dr. Byron Calhoun, who was caught lying about the number of abortion-related complications he saw in Charleston.

Myth #4: Abortion “Endangers the Health and Well-being of Women”

In an apparent effort to criticize the Affordable Care Act for promoting “the notion of abortion as healthcare,” the platform baselessly claimed that abortion “endangers the health and well-being” of those who receive care:

Through Obamacare, the current Administration has promoted the notion of abortion as healthcare. We, however, affirm the dignity of women by protecting the sanctity of human life. Numerous studies have shown that abortion endangers the health and well-being of women, and we stand firmly against it.

Scientific evidence overwhelmingly supports the conclusion that abortion is safe. Research shows that a first-trimester abortion carries less than 0.05 percent risk of major complications, according to the Guttmacher Institute, and “pose[s] virtually no long-term risk of problems such as infertility, ectopic pregnancy, spontaneous abortion (miscarriage) or birth defect, and little or no risk of preterm or low-birth-weight deliveries.”

There is similarly no evidence to back up the GOP’s claim that abortion endangers the well-being of women. A 2008 study from the American Psychological Association’s Task Force on Mental Health and Abortion, an expansive analysis on current research regarding the issue, found that while those who have an abortion may experience a variety of feelings, “no evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors.”

As is the case for many of the anti-abortion myths perpetuated within the platform, many of the so-called experts who claim there is a link between abortion and mental illness are discredited anti-choice activists.

Myth #5: Mifepristone, a Drug Used for Medical Abortions, Is “Dangerous”

Both anti-choice activists and conservative Republicans have been vocal opponents of the Food and Drug Administration (FDA’s) March update to the regulations for mifepristone, a drug also known as Mifeprex and RU-486 that is used in medication abortions. However, in this year’s platform, the GOP goes a step further to claim that both the drug and its general approval by the FDA are “dangerous”:

We believe the FDA’s approval of Mifeprex, a dangerous abortifacient formerly known as RU-486, threatens women’s health, as does the agency’s endorsement of over-the-counter sales of powerful contraceptives without a physician’s recommendation. We support cutting federal and state funding for entities that endanger women’s health by performing abortions in a manner inconsistent with federal or state law.

Studies, however, have overwhelmingly found mifepristone to be safe. In fact, the Association of Reproductive Health Professionals says mifepristone “is safer than acetaminophen,” aspirin, and Viagra. When the FDA conducted a 2011 post-market study of those who have used the drug since it was approved by the agency, they found that more than 1.5 million women in the U.S. had used it to end a pregnancy, only 2,200 of whom had experienced an “adverse event” after.

The platform also appears to reference the FDA’s approval of making emergency contraception such as Plan B available over the counter, claiming that it too is a threat to women’s health. However, studies show that emergency contraception is safe and effective at preventing pregnancy. According to the World Health Organization, side effects are “uncommon and generally mild.”

News Politics

David Daleiden Brags About Discredited Smear Campaign at GOP Convention

Amy Littlefield

Daleiden’s claims about the videos’ impact on Planned Parenthood contrast with a recent poll showing that support for Planned Parenthood has increased in the aftermath of the Center for Medical Progress' anti-choice smear videos.

David Daleiden, a year after he began releasing secretly recorded and deceptively edited videos claiming to show Planned Parenthood officials were illegally profiting from fetal tissue donation, appeared to boast about the videos’ purported impact at a luncheon during the Republican National Convention (RNC).

“I think it’s very clear that one year later, Planned Parenthood is on the brink, they’re on the precipice,” Daleiden said at the event, co-hosted by the Family Research Council Action and the Susan B. Anthony List. “Their client numbers are down by at least 10 percent, their abortion numbers are down, their revenues are down and their clinics are closing.”

The luncheon took place at the Hyde Park Prime Steakhouse, near the Quicken Loans Arena in Cleveland, Ohio, where the Republican National Convention is underway. Also in attendance at Wednesday’s luncheon were a slate of Republican anti-choice politicians, including Mississippi Gov. Phil Bryant, Kansas Gov. Sam Brownback, former Texas Gov. Rick Perry, Nebraska Sen. Deb Fischer, and North Carolina Rep. Virginia Foxx.

Daleiden—who is under felony indictment in Texas and the subject of lawsuits in California for his actions in filming the undercover videos—touted efforts to defund Planned Parenthood by state Republican legislators and governors, who used the Center for Medical Progress (CMP) smear videos as a basis for investigations. Those defunding attempts have been blocked by federal court order in several cases.

He celebrated Planned Parenthood’s announcement that it would close two and consolidate four health centers in Indiana, an effort Planned Parenthood of Indiana and Kentucky said would “allow patients to receive affordable, quality health care with extended hours at the newly consolidated locations.” Daleiden made no mention of last month’s Supreme Court decision overturning abortion restrictions in Texas, which dealt the anti-choice movement its worst legal defeat in decades.

“One year ago now, from the release of those videos, I think it’s actually safe to say that Planned Parenthood has never been more on the defensive in their entire 100 years of history, and the pro-life movement has never been stronger,” Daleiden said.

While his tone was victorious, Daleiden appeared to avoid directly claiming credit for the supposed harm done to Planned Parenthood. In a federal racketeering lawsuit brought against Daleiden and his co-defendants, Planned Parenthood has argued that Daleiden should compensate the organization for the harm that his smear campaign caused.

Republican congressional lawmakers have held at least five hearings and as many defunding votes against Planned Parenthood in the year since the videos’ release. Not a single state or federal investigation has produced evidence of wrongdoing.

Daleiden’s claims about the videos’ impact on Planned Parenthood contrast with a recent NBC/Wall Street Journal poll showing that support for Planned Parenthood has increased in the aftermath of the CMP smear videos.