The anti-choice Center For Medical Progress (CMP) has secretly and possibly illegally recorded footage of abortion providers that was subsequently deceptively-edited to smear Planned Parenthood. The resulting videos have been heavily promoted by Fox news, which even went so far as to suggest CMP should qualify for a Pulitzer Prize. However, CMP has been embroiled in a lawsuit with the National Abortion Federation based in part on the violation of confidentiality agreements it signed in order to participate in NAF's conferences under false pretenses.
On December 9, RHRealitycheck's Imani Gandy reported on the lengths CMP has gone to hide the funders and supporters of its campaign to smear Planned Parenthood, despite a court's determination that this information is necessary to determine if the anti-choice group was part of an illegal conspiracy.
[A]ny possibility that [Planned Parenthood] will be found to be in violation of policies regarding fetal tissue donation seems to be flickering out.
What remains, then, are questions about whether or not David Daleiden himself and the organizations he created--CMP and BioMax Procurement Services, the fake tissue procurement company--broke federal and state laws in connection with their crusade against Planned Parenthood, and who coordinated with Daleiden to perpetrate this alleged fraud.
These questions have been teed up in federal court in San Francisco, where a discovery battle has been raging between the National Abortion Federation (NAF) and Daleiden for several months.
“Discovery” is the process in litigation whereby parties to a lawsuit have to, essentially, lay their cards on the table and turn over information that the other side might need to support their claims or defense. And in the lawsuit that NAF filed against CMP, discovery is the process that could unravel a conspiracy involving multiple players all acting in concert to take down Planned Parenthood. Such players may include anti-choice extremists connected to groups like Live Action and Operation Rescue, in addition to some of the anti-choice politicians who jumped at the opportunity to hold congressional hearings and form investigative committees about Planned Parenthood's supposed dastardly deeds.
Within weeks of the first video release, NAF filed a lawsuit in federal court against CMP, BioMax, David Daleiden, Troy Newman (the founder of radical anti-choice extremist group Operation Rescue), and a number of thus far unidentified alleged other parties. Among other civil and criminal allegations, the lawsuit alleges a conspiracy to defraud NAF, perpetrated for the purpose of intimidating and harassing abortion care providers.
Days after NAF filed its lawsuit, it won a temporary restraining order (TRO) blocking CMP from releasing additional footage or other materials that NAF alleges CMP fraudulently acquired at NAF meetings. The judge who issued the temporary restraining order, William Orrick, also ordered CMP and Daleiden to provide responses to NAF's discovery requests: testimony, documents, and other evidence that NAF needs in order to prove its case that the temporary restraining order should be converted into a preliminary injunction continuing to block the video release.
The most important information sought by NAF is probably the video recordings themselves, many of which were surreptitiously recorded at private NAF events in violation of the explicit nondisclosure agreement that CMP members were required to sign before they could gain entrance into NAF's annual meetings in 2014 and 2015. The confidentiality agreements are one piece of an extensive security protocol that NAF put in place to protect attendees from anti-choice terrorism.
Daleiden and CMP maintain that the TRO and any preliminary injunction that the court might issue constitutes “prior restraint,” or pre-publication censorship, in violation of the First Amendment. Daleiden believes that the confidentiality agreement that he signed is invalid because in his mind, NAF is an accomplice in Planned Parenthood's baby parts trafficking scheme.
NAF has countered, and thus far Judge Orrick seems to agree, that First Amendment rights can be waived by contract, which is exactly what Daleiden did. And considering that no federal or state agency has found Planned Parenthood guilty of anything, Daleiden's continued insistence that he's an investigative journalist on a crusade to expose the illegal sale of aborted fetal tissue has begun to ring rather hollow.