Daleiden Wins Again!

Anti-abortion activist David Daleiden, famous for his surreptitious videotaping of conversations with abortion-giant Planned Parenthood officials about their dealings in fetal remains , just won his second court victory in a row affirming his right to learn about the identities of the Planned Parenthood employees arrayed against him in in civil and criminal court proceedings.

That sounds like a pretty basic right. And in fact, it is. The Sixth Amendment says explicitly that “the accused shall have the right … to be confronted with the witnesses against him.” And also “to be informed of the nature and cause of the accusation.” Yet Planned Parenthood seems to take the position that the right to an abortion is so sacrosanct and special that the Sixth Amendment—along with all other legal precepts mandating fairness to people accused of wrongdoing—just doesn’t apply to it. Fortunately for Daleiden, even on the ultra-liberal West Coast, judges haven’t agreed.

On Aug. 17 a three-judge panel of the notoriously liberal 9th U.S. Circuit Court of Appeals overruled an order by U.S. District Judge James Robart in Seattle barring the release of any identifying information on public records of about600 people who might be connected to transactions in fetal tissue between Planned Parenthood and the University of Washington’s Birth Defects Research Laboratory. A current and a former Planned Parenthood employee, together with three employees of the research lab and three employees of local hospitals, all using “Doe” pseudonyms, had filed a class-action suit against Daleiden and the university in August 2016 after Daleiden filed a request to the university under Washington’s public-records access law for documents pertaining to the lab’s purchase of fetal tissue, organ,s and cells and for communications between the lab and abortion clinics in the states of Washington and Idaho. Robart issued a temporary injunction in November 2016 that barred the university from releasing the documents without redacting all identifying information about all 600 of the people who the plaintiffs claimed might have been involved in or affected by tissue transactions. The idea—accepted by Robart in his written order—was that any disclosure of any identifying information, including job titles, university departments, names of entities involved, would expose all 600 to “threats, harassment and violence,” and thus impinge on their First Amendment right to advocate for abortion rights.

Daleiden’s lawyers said they had no problem with redacting names and personal-contact information from the documents, but that the full censorship reflected in Robart’s order would render the documents useless for investigative purposes. The unsigned 9th Circuit opinion agreed that Robart had issued an overly broad “blanket” injunction without ascertaining whether anyone connected to the alleged fetal trafficking—either the eight Doe plaintiffs or the rest of the alleged 600 class members—had made “the necessary clear showing” that any of them was engaging in First Amendment-protected activity or would likely be harmed by the release of the information Daleiden had requested. The 9th Circuit remanded the case to Robart’s courtroom for further proceedings.

On June 21 a San Francisco County Superior Court judgethrew out 14 of 15 felony counts lodged against Daleiden and his associate, Sandra Merritt, by California Attorney General Xavier Becerra over their widely circulated undercover videotapes of Planned Parenthood employees in California seemingly haggling over prices and delivery of fetal remains from Planned Parenthood abortion clinics. (A California invasion-of-privacy law makes it a crime to record conversations without the consent of all parties involved.) As in Washington, all the Planned Parenthood employees who were the alleged victims of those secretly videotaped conversations went by “Doe” names in Becerra’s charging documents, which, in apparent solicitude for their feelings, didn’t even identify which videos were involved. Lawyers for Daleiden and Merritt lawyers argued—convincingly—that it would have been impossible for them to mount a defense of their clients without knowing either the names of the alleged victims or with what specific acts of wrongdoing they were charged.

On July 7 Becerra refiled all 14 charges, this time identifying the videos by a numerical system (although he continued not to specify the conversations that allegedly violated the law), and his office said that they had provided the actual names of the alleged Doe victims to Daleiden’s lawyers. So at least Daleiden and Merritt will be able to confront the witnesses against them. On Aug. 24, there was a hearing on the pair’s affirmative defense that the Planned Parenthood employees had no reasonable expectation that the videotaped conversations, which took place in restaurants and other public places, would be private.) It remains to be seen what Judge Robart in Seattle will do with the 9th Circuit’s rebuff of his own apparent solicitude for Planned Parenthood and anyone connected with that organization. At least, Daleiden may be able to find out a few things about his legal opponents and their transactions in fetal remains that they would rather not be made public.

And that may be about best that Daleiden can do. On Aug. 31 another federal judge, U.S. District Judge William Orrick in San Francisco, ordered two lawyers representing Daleiden in the California state criminal case to pay nearly $200,000 in contempt-of-court fines in a civil lawsuit brought against him by the National Abortion Federation, at whose conventions Daleiden had made some of the undercover videotapes. The fines were for violating an injunction Orrick had issued earlier that bars Daleiden from releasing tapes made of conversations at that convention. Daleiden’s criminal defense lawyers, Steve Cooley and Brentford Ferreira, nonetheless posted links to the tapes (which Daleiden had circulated earlier and which had been widely copied) on their office website, arguing that they weren’t bound by the injunction in the civil case and that they had posted links in order to find witnesses who could support Daleiden’s defense that there was no reasonable expectation of privacy in the conventions’ public spaces. Cooley and Ferreira say they plan to appeal both the fine and Orrick’s contempt finding on the ground that it impedes their ability to represent a criminal defendant. Orrick, meanwhile, is reported to be considering whether to hold Daleiden himself in contempt.