The Scandal Planned Parenthood Cannot Evade: Latest Perspective, Latest Development

CMP Video Dermish 3Michael Marcus

If you want to assess how the activities of David Daleiden and the Center for Medical Progress (CMP) have altered the landscape on the abortion issue nationwide, just survey the online news for three or four days. You will see a few testimonials from aborting mothers—all designed to justify their decisions. You will see stories about all the wonderful things Planned Parenthood does aside from abortion. You will see accounts of celebrities who have endorsed Planned Parenthood and maybe made financial contributions to America’s premier purveyor of fine baby parts.

Why is this good news? Because it indicates that Planned Parenthood—and its allies in the mass media—are on the defensive. They need to circulate self-consciously “positive” accounts of the abortion experience. They need to call upon their celebrity endorsements. They need to advertise their financial contributions—which have been made at the same rate for decades, but which were in the past always kept under the table.

A story that appeared just recently exemplified this nervous, foot-shifting trend. Planned Parenthood tweeted that Joss Whedon, director of The Avengers: Age of Ultron, was matching each private monthly gift to PP with a $50 gift of his own. Those who know Hollywood will tell you that this was not Whedon’s first contribution to the pro-abortion cause. But the story online wasn’t even about Whedon’s less-than-newsworthy support for the child-killing mega-corporation. It was about the flurry of outraged tweets that answered PP’s boast. No organized campaign was required. Ordinary people out there on Twitter, young and old, were furious that Whedon was contributing to baby part profiteers—and weren’t afraid to say so.

Planned Parenthood’s dirty little secrets are not secrets anymore.

But if the National Abortion Federation has its way, at least some of those secrets will stay buried, forever. Shortly after CMP released its first videos last summer, NAF, the trade association for the abortion industry, filed a lawsuit to prevent David and CMP from releasing videos recorded at its 2014 and 2015 annual meetings.

On July 31, the day the lawsuit was filed, San Francisco federal district court judge William Orrick granted NAF a temporary restraining order preventing the defendants from disclosing to third parties any recordings or other “confidential” information they learned at the meetings. According to NAF, and the court’s order, anything and everything that happened at its meetings is confidential. This viewpoint is in keeping with NAF’s claims that its meetings are held under the strictest conditions of secrecy and security out of fear of “militant anti-abortion extremists’—a term NAF frequently deploys against those who work to expose the horrors of abortion. The fact is that the NAF’s lawsuit targets multiple defendants, in the hope that all dissent can be eventually be labeled criminal and silenced once and for all.

With Life Legal’s Katie Short acting as lead counsel for David Daleiden, the four months since the lawsuit was filed have seen intense activity, including discovery, multiple hearings, thousands of documents exchanged in discovery, reams of briefing, and two writs to the Ninth Circuit. In October, some of the enjoined NAF videos also found their way into the hands of an Internet journalist and onto YouTube, leading to yet more litigation.

Finally, on December 18, the court heard oral argument on NAF’s motion for a preliminary injunction that would, for the remainder of the lawsuit, prohibit disclosure of the material gathered at the NAF meetings. Also on the docket was NAF’s motion to have David and CMP held in contempt for sending too much information to a congressional committee in response to a subpoena from the House Committee on Government Oversight and Reform.

Life Legal’s opposition brief revealed for the first time that, contrary to NAF’s preferred narrative of CMP “sneaking into” the meetings, “stealing” NAF’s secret materials, and putting NAF members “in harm’s way,” NAF employees went out of their own way to ensure that BioMax Procurement Services, the tissue-dealing company David set up in conducting his investigation, was an exhibitor at the meetings. Knowing full well that BioMax proposed to pay clinics for fetal tissue, NAF’s personnel made sure BioMax had full access to its members.

Unfortunately, at the December 18 hearing, the district court was more interested in finding that NAF’s members would suffer “irreparable harm,” in the form of “hate speech” and threats from unrelated third parties, if the videos were released, than in recognizing the demonstrable public interest in the information CMP gathered at the meetings. The court appeared to take a very narrow view of the public interest, addressing only whether the material would be of interest to law enforcement, and, if so, how to get it to law enforcement officials without allowing more general disclosure to the public.

David Daleiden, the CMP, and Life Legal are currently awaiting a decision from the district court. Considering the drift of the court’s inquiries and expressions, we are not readying our pom-poms to cheer for this decision. But we do expect a forthright expression of the court’s reasoning to create an opportunity for response—and even for appeal. When David set out to expose the dirty secrets of the abortion industry, he knew that he would not be traveling an easy road, and he counted on Life Legal to stick with him to the end. We are fully committed to his defense. We mean to walk that road with him, however great and difficult the distance.

As we go to press . . . Planned Parenthood has finally come out from behind the skirts of its allies to fight its own battle, filing suit against David Daleiden, CMP, and other defendants in the same federal district court where NAF has enjoyed, so far, so much success. There is a piling-on quality to PP’s suit: clearly, PP thinks it has found a sympathetic judge and wishes to exploit the opportunity. Ominously, the PP suit is filed under RICO.

Aside from that, the only new slant in PP’s suit is an emphasis on protesting that CMP’s videos were “misleading” and that PP is not peddling baby parts for filthy lucre. In other words, the text of the complaint repeats much of PP’s PR from the past several months.

PP is represented by a major international law firm, but Life Legal has faced down major international law firms before. PP’s decision to join the fray directly does not, of course, alter our commitment to David’s defense. It just gives us—and our supporters—a whole lot more to do.


Originally published in Lifeline Vol. XXV, No. 1 (Winter 2016)