Update 1/25/16 at 3:30 p.m.: Prosecutors today announced that a Harris County grand jury has indicted both David Daleiden and Susan Merritt on charges of tampering with a government document, a second-degree felony. In addition, Daleiden was charged with violating a state law that prohibits the buying and selling of human organs, a Class A misdemeanor.
Both activists, who were named in a federal racketeering lawsuit filed by Planned Parenthood earlier this month, went undercover to infiltrate closed-door conferences for abortion providers and Planned Parenthood clinics, including one in Houston. While the Harris County District Attorney's Office launched an investigation into the allegations that the local Planned Parenthood affiliate illegally profited from fetal tissue donation, prosecutors say that investigation has wrapped with no charges against the organization's staff. It's the first investigation to result in criminal charges against the activists involved in making the undercover videos.
“We were called upon to investigate allegations of criminal conduct by Planned Parenthood Gulf Coast,” Harris County District Attorney Devon Anderson said in a prepared statement. “As I stated at the outset of this investigation, we must go where the evidence leads us. All the evidence uncovered in the course of this investigation was presented to the grand jury. I respect their decision on this difficult case.”
To hide that the newly formed company was a front for activists tied to a radical strain of the anti-abortion movement, they filed incorporation papers using pseudonyms and fake IDs. Next the activists aggressively marketed “Biomax Procurement Services, LLC” as a legitimate company that transfers donated fetal tissue from abortion clinics to medical researchers (a legal process that has, unsurprisingly, been condemned by anti-abortion activists).
Eventually, the fake company gained access to private conferences for abortion providers held by Planned Parenthood and the National Abortion Federation, gatherings they surreptitiously recorded. Leveraging contacts they made while hobnobbing with abortion providers, the undercover anti-abortion activists set up meetings across the country to talk with doctors about fetal tissue donation. They showed up for one such meeting at a Houston Planned Parenthood Gulf Coast clinic on April 9, 2015, flashing IDs with the names of people who do not exist. Their real names — David Daleiden and Susan Merritt — would probably have been flagged as soon as clinic staff ran them against a database of names tied to the radical anti-abortion movement.
Months after visiting the Houston clinic, the activists posted undercover footage that they claim is proof the abortion provider illegally profited from fetal tissue donation. It was among a series of undercover “sting” videos released last summer that triggered widespread condemnation from conservatives and anti-abortion activists, numerous state and federal investigations, and led to “incalculable and irreversible” damage to the women's health provider, according to a racketeering lawsuit the Planned Parenthood Federation of America filed against the activists in a California federal court Thursday.
Texas health officials cited those videos when, in October of last year, they announced Planned Parenthood would be dropped as a Medicaid provider in the state — something federal regulators say Texas cannot legally do. According to the lawsuit filed Thursday, the anti-abortion activists who lied their way into conferences, meetings with top Planned Parenthood staff, and ultimately abortion clinics in Denver and Houston used fake IDs, “stole one woman's identity,” and signed nondisclosure agreements they had no intention of keeping to gain that access.
As Planned Parenthood says in the opening lines of its lawsuit against the activists (you can read the full filing at the end of this post):
“This complaint details a complex criminal enterprise conceived and executed by anti-abortion extremists. The express aim of the enterprise—which stretched over years and involved fake companies, fake identifications, and large-scale illegal taping—was to demonize Planned Parenthood, harass and intimidate its dedicated staff, and interrupt its operations, all with the ultimate goal of interfering with women’s access to legal abortion.”
In addition to Daleiden and Merritt, the two activists who secretly recorded meetings with Planned Parenthood staff, the lawsuit names as a plaintiff Troy Newman, one of three board members with the Center for Medical Progress, the organization that released the videos after a years-long campaign to infiltrate Planned Parenthood. Newman's the man behind Operation Rescue, which, as the lawsuit puts it, “operates a website that includes photos and home addresses of abortion doctors across the nation so they get targeted and harassed.”
In 2000, Newman co-authored a book with Operation Rescue's current senior vice president, Cheryl Sullenger, who served two years in federal prison for her role in the attempted gasoline bombing of a California abortion clinic. In the book, Newman and Sullenger write that abortion providers should be executed as convicted murderers “in order to expunge bloodguilt from the land and people.” In November, Republican presidential contender Ted Cruz trumpeted an endorsement from Newman, whom Cruz called “a driving force in the recent effort to expose Planned Parenthood's alleged sale of baby parts in a series of undercover videos.”
So far none of the state or federal investigations into Planned Parenthood have turned up any evidence the organization broke the law in donating fetal tissue for research; experts who have analyzed the footage provided by activists have discredited the videos as deceptively edited, and some ten state investigations have already wrapped after finding no evidence of any wrongdoing. Meanwhile, according to the lawsuit, death threats and harassment against Planned Parenthood staff increased ninefold the month activists first began to release the undercover videos. Between July and August 2015, Planned Parenthood clinics across the country reported 849 incidents of vandalism, the lawsuit states.
The lawsuit also details some of the blowback for the individual doctors whose conversations were filmed (and, according to Planned Parenthood, twisted) by the undercover anti-abortion activists. “Dr. Deborah Nucatola should be summarily executed. I'll do it myself if no one else does,” read one anonymous commenter cited in the lawsuit, while another had this to say: “I'll pay ten thousand dollars to anyone in need of a defense fund for the murder of Dr. Deborah Nucatola.” Another doctor surreptitiously filmed by activists received grisly postcards in her mailbox at home; her neighbors got the postcards in their mailboxes, too.
Among the videos released by activists was one filmed at a Planned Parenthood Rocky Mountain clinic in Denver, according to the lawsuit. Months after that video was filmed, Robert Dear allegedly shot and killed three people outside one of the affiliate's clinics in Colorado Springs; Dear reportedly told police “no more baby parts” upon arrest, and during his first court appearance referred to himself as “a warrior for the babies.”
The lawsuit filed Thursday underscores some of the strict security measures clinics have adopted because of past and current threats of violence. According to the filing, Planned Parenthood Gulf Coast, in addition to having security officers at clinic entrances, requires all visitors to pass through metal detectors upon entering. Clinic staff also screen IDs against what the lawsuit calls “a database of known anti-abortion extremists and harassers.” Visitors are also asked to sign what the organization describes as an airtight non-disclosure and confidentiality agreement before they can even enter the clinic and meet with staff.
While the activists have yet to file a response in court, CMP on Thursday issued a statement claiming the "frivolous lawsuit" is in "retaliation for CMP’s First Amendment investigative journalism." Daleiden told BuzzFeed News by email yesterday, “Game on." (*See an update from Daleiden's attorneys at the end of this post.)
Depending on the merits of Planned Parenthood's case, the lawsuit could become yet another barometer for how the courts balance the privacy and security of abortion providers with anti-abortion activists' freedom of expression. "In this case, the defendants will claim that the alleged illegal acts themselves were all expressive — in other words, there was no illegal conduct, just allegedly illegal forms of expression, and the First Amendment protects that," Charles "Rocky" Rhodes, who teaches constitutional law at the South Texas College of Law, told the Houston Press in an email. "So the issue will likely come down to whether the defendants actually performed illegal acts separate from their expression."
You can read the full lawsuit here:
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Update 1/21/16 at 11:00 a.m.:
Daleiden's attorneys with the Thomas More Society, a non-profit legal aid group that has in the past defended anti-abortion groups against racketeering and extortion charges, in a statement yesterday accused Planned Parenthood of attempting "to shut down free speech and to cover up evidence of the abortion industry’s crimes in aborted baby parts trafficking."
"[E]qually as any other investigative journalist working for ABC, NBC, CBS, Fox News, or your local print or electronic media outlet may regularly resort to undercover journalism tactics to ferret out hidden crime, so too David Daleiden should have the right to penetrate the criminal underworld of America’s abortion providers and report all the evidence he has uncovered of criminal wrongdoing to law enforcement and to members of the public," said Tom Brejcha, Thomas More Society President and Chief Counsel, in a prepared statement.
So far none of the state or federal investigations into Planned Parenthood, investigations triggered by Daleiden's undercover videos, have led to any criminal charges.