“Are You Now or Have You Ever Been a Member…?” The New McCarthyism: Alive and Well in California

Katie Short

In the last issue of Lifeline, we reported on SB 1945, a bill in the California legislature the sole purpose of which was to demonize pro-lifers by making “antiabortion crimes” the legal equivalent of “hate crimes.” That strategy backfired when LLDF Executive Director Dana Cody and other concerned pro-lifers presented reams of evidence showing violence against pro-life activists, none of which was addressed by the bill.

In the face of a public relations disaster, the pro-abort forces in the Legislature retreated for the time being. Their fallen banner, however, was snatched up by the state court of appeal, which took advantage of a pending case to make the point crystal-clear: pro-lifers, including pro-life lawyers, are presumed to be dangerous, untrustworthy people.

The case arose out of a discovery dispute between Planned Parenthood Golden Gate (PPGG) and pro-lifers Ross Foti and Jeannette Garibaldi. In July 1998, Foti sued Planned Parenthood because of the unlawful conduct of its escorts and staff, in blocking and pushing him, as well as having him falsely arrested. PPGG responded with a cross-complaint against Foti and other pro-lifers, including 67-yearold Jeannette Garibaldi, alleging that they blocked patients and assaulted and threatened escorts.

Mrs. Garibaldi, represented by volunteer lawyer Terry Thompson, sent routine interrogatories asking for the names of witnesses to her alleged bad conduct. Similarly, Mr. Foti, represented by LLDF’s Katie Short, sent interrogatories asking for the names of witnesses to various specific incidents. Planned Parenthood objected, claiming that giving the names and addresses of clinic staff and volunteers to pro-lifers exposed the volunteers to evils ranging from harassment to murder.

Nonetheless, the court ruled that Planned Parenthood was required to provide the names of witnesses, but under a protective order which limited their use to “Litigation Only.” The addresses of witnesses were to be provided under an “Attorneys Only” provision of the protective order. Any improper use of the information was punishable with sanctions.

Needless to say, this resolution, not being 100% of what they asked for, did not satisfy Planned Parenthood and its lawyers. They took a writ (a type of short-term appeal) to the state court of appeal, asking the court to overturn the lower court and order that they be allowed to provide only pseudonyms for their witnesses. PPGG argued that not only was it too dangerous to give the names of witnesses to Mr. Foti and Mrs. Garibaldi, but that their attorneys, Katie Short and Terry Thompson, could also not be trusted, as they were “known antiabortion activists” who had participated at protests at clinics and outside doctors’ houses in the early 1990s.

On August 28, in a decision larded with pro-abortion bias, the Court of Appeal for the First Appellate District issued its decision in PPGG v. Superior Court, 83 Cal.App.4th 347, 99 Cal. Rptr.2d 627 (2000). The decision adopted foursquare PPGG’s position, not only in the discovery matter before it, but implicitly on the merits of the underlying case which was not before it.  For example, the court stated that the pro-lifers and their counsel were “committed to an effort to curtail access to abortion providers.” In so stating, the court effectively adopted PPGG’s theory of the case, namely, that Mr. Foti and Mrs. Garibaldi are trying to block access to the clinic, rather than that they are simply exercising their free speech rights on a public sidewalk in order to educate women about abortion and alternatives to abortion.

The court went on to state that this alleged commitment to curtailing access “illustrates why the non-party staff and volunteers of an institution such as Planned Parenthood have such a strong interest in keeping personal information about themselves private.” In other words, the court held that, because the parties and their counsel protest abortion, this in and of itself establishes that they are likely to break their word and violate the court order in order to harm PPGG’s witnesses.

In presenting its case, PPGG had failed to provide any evidence that its witnesses were actually in danger, or even that they thought they were in danger. Instead, PPGG relied entirely on evidence such as the Nuremberg Files website (which PPGG portrayed as a “hit list”) although it admitted that it had not a shred of evidence linking anyone involved with this case to the site. Faced with this dearth of evidence pertaining to the parties actually before it, the court of appeal instead cited “human experience” as the basis for its holding:

Human experience compels us to conclude that disclosure carries with it serious risks which include, but are not limited to: the nationwide dissemination of the individual’s private information, the offensive and obtrusive invasion of the individual’s neighborhood for the purpose of coercing the individuals to stop constitutionally-protected associational activities and the infliction of threats, force, and violence.

Thus, the court substituted “human experience”, i.e., pro-abortion propaganda, in place of admissible evidence in order to make PPGG’s case for it. Over and over, the court declared that “human experience” established the danger that Planned Parenthood’s witnesses faced from pro-lifers and that, even with a protective order, the consequences of a violation “pose too serious a risk for us to ignore.”

In fact, as Foti and Garibaldi pointed out, they already know the names of dozens of Planned Parenthood volunteers and employees, names learned in perfectly legal, even haphazard ways; none of these individuals has suffered any consequences, dire or otherwise. This argument, however, simply prompted the court to note that the very fact that the pro-lifers (or more accurately, their attorneys) had a list of Planned Parenthood names was itself evidence of the danger that other witnesses faced.

In other words, the pro-lifers and their attorneys should have known that they are dangerous people and therefore should have averted their eyes whenever they came across the name of a Planned Parenthood person in the newspaper or a legal document. Their failure to do so shows just how bad they are. The court of appeal also noted that, at a deposition, PPGG’s lawyer asked Mr. Foti, “Have you ever been a member of any antiabortion or pro-life organization?”

Mrs. Short objected that the question was irrelevant and violated Mr. Foti’s right to associational privacy, and she instructed him not to answer. PPGG’s lawyer made no attempt to narrow the question or show its relevance; she simply moved on. Months later, PPGG argued, and the court of appeals agreed, that Mr. Foti’s failure to answer this question supported its ruling, because “partially due to this instruction, the record before us does not disclose the extent of nature of the involvement of [Mr. Foti and Mrs. Garibaldi] in the anti-abortion movement.”Thus, for the court of appeal, unless a pro-life plaintiff or defendant reveals all of his or her associations with the pro-life movement (which would necessarily include the activities of these associations as well), he or she must be presumed to have undesirable associations which justify denying routine discovery.

Worse still, the logical corollary of the court’s holding is that pro-life attorneys must also reveal all of their associations to Planned Parenthood. Failure to do so would lead to record which “does not disclose the extent or nature” of their association in the antiabortion movement, and thus justify denying discovery to these presumptively dangerous people.

Mr. Foti and Mrs. Garibaldi have filed a petition for review in the California Supreme Court, along with a request that the court of appeal’s decision be depublished. Because of the threat the decision poses to the due process rights of pro-life litigants and their attorneys, several other pro-life organizations also submitted depublication requests. A decision on the petition and depublication request is expected by the end of the year.