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David DaleidenAmerican Life League

SAN FRANCISCO, California, October 4, 2019 (LifeSiteNews) — After an eight-hour day of jury selection Wednesday, the Planned Parenthood lawsuit against the pro-life journalists whose undercover operation exposed its trafficking in baby body parts began Thursday before U.S. District Court Judge William Orrick.

Nine men and three women make up the jury for what is arguably the biggest pro-life trial in decades, which will run six weeks.

Planned Parenthood Federation of America and ten affiliates are suing five defendants from the Center for Medical Progress (CMP) on several counts, the most serious of which is a Racketeer Influenced Corrupt Organization (RICO) charge in connection with CMP’s secretly recording conversations at Planned Parenthood and National Abortion Federation meetings in 2014 and 2015.

The defendants are David Daleiden, CMP project lead and one of its three founding board members; CMP founding board members Albin Rhomberg and Operation Rescue president Troy Newman; and CMP undercover journalists Sandra Merritt and Geraldo Adrian Lopez. CMP and BioMax, the fictitious company CMP created for its sting operation, are also being sued.


Pro-life lawyers argued in opening statements that Daleiden and his undercover investigators “were looking for evidence of fetal tissue being sold for profit, and babies being born alive, and of course, we know they found that evidence,” lead defense attorney Peter Breen, vice president and senior counsel at the Thomas More Society, told LifeSiteNews.

“The case was framed clearly for the jury today, and it really is, do you buy Planned Parenthood’s story that David and his team are a criminal conspiracy, or, in the alternative, do you say hey, these folks did an undercover journalism project in good faith that shocked the nation with its disclosures?” he said.

“So if it’s the latter, there are no legal damages that you can claim from this good faith, legitimate, and fruitful undercover investigation,” Breen pointed out.

The pro-life defense is “at its heart a First Amendment defense,” he said. The First Amendment prevents public reaction to truthful information from being actionable.

“Any of the alleged harm that Planned Parenthood suffered stemmed from the public reaction to Planned Parenthood’s wrongdoing. It was not because of [CMP’s undercover journalists] being admitted into conferences, or the mere act of recording,” Breen explained. “It’s only because the videos were so damaging to the Planned Parenthood brand that they have hauled us into court.”

Moreover, “the plaintiffs have from day one have done everything possible to try to silence the truth of what was revealed in the investigation,” he said.

That included Planned Parenthood dropping claims on the eve of trial “to desperately try to avoid disclosure to the jury of the public interest motivating David and his team.”

Planned Parenthood has also “been successful in getting a significant amount of really strong and compelling evidence excluded” from the trial, Breen said. For example, “we had an expert who had calculated the profit that was being made by Planned Parenthood in their fetal tissue sales. That is not going to be coming in right now, unless something changes in the trial.”

“They are fighting us at every turn,” he added.

Moreover, Orrick “has issued a gag order, at the behest of the National Abortion Federation, preventing David from releasing hundreds of hours of hidden-camera footage, thereby impeding the defense’s ability to accurately portray the truth of the investigation,” Breen noted in an earlier press release.

Orrick was on the board of Good Samaritan Family Resource Center in San Francisco, which houses and partners with the Planned Parenthood Wohlford abortion center. CMP asked Orrick in June 2017 to recuse himself from the case, but he refused, and in May 2018, the Ninth Circuit Court tossed out CMP’s request to have Orrick replaced.

Nevertheless, “we believe we have strong defense,” Breen told LifeSiteNews. “We think these jurors are going to see this evidence, understand that this is a legitimate undercover journalism project, and that any harm was caused by the appropriate reaction of the public for these terrible disclosures,” he added.

Life Legal Defense Foundation’s Katie Short, who is defending Rhomberg, told the court in her opening remarks of his decades of pro-life advocacy, including Rhomberg’s role in the 1982 discovery of over 16,000 aborted preborn children packed into a shipping container at a pathologist’s home in southern California, according to a Life Legal report.

Short argued the defendants had to infiltrate Planned Parenthood and its allies because “it’s hard to get at the truth from a distance.”

Planned Parenthood attorneys tried to portray the pro-life defendants as “extremists,” citing Rhomberg’s statement that “we must destroy the evil Planned Parenthood empire” and calling abortion a “holocaust” as an example of such extreme anti-abortion views, Life Legal reported.

Jenna Tosh, president and CEO of Planned Parenthood California Central Coast, also testified and “confirmed what we had understood, which is that there were no damages until after the public reaction to the videos,” Breen said.

Life Legal reported that when Tosh was asked whether she was bothered that a Planned Parenthood abortionist said she could use a “less crunchy” technique to obtain more intact baby body parts, she evaded the question. Tosh has worked for Planned Parenthood for more than a decade but said she was “confused” and that she “didn’t understand” the videos.

According to Breen, Planned Parenthood’s base claims for damages have been cut to around $700,000, “but under RICO you triple that damage, and you can get attorneys’ fees, and the attorneys' fees would easily be in the millions of dollars in this case.”

Defendants Merritt and Rhomberg are scheduled to testify Friday.

CMP groundbreaking undercover videos released in 2015 reveal Planned Parenthood executives haggling over the prices of baby body parts and discussing how to alter abortion methods to obtain more intact body parts for harvesting.

The videos sparked public outrage and investigations in both the House and Senate, which released reports documenting evidence of criminal actions by abortion providers and fetal tissue procurement companies, and referred the matter to the U.S. Department of Justice, which is now investigating Planned Parenthood, Operation Rescue reported.

Senators Lindsey Graham and Chuck Grassley sent a letter to Attorney General William Barr in June asking for an update on the investigation’s progress, and a response is expected soon, it reported.

Planned Parenthood also lost $6 million annually in taxpayer funding under the Protect Life Rule that bans organizations that conduct or refer for abortions from receiving Title X family planning grants, a rule credited to the CMP videos, Operation Rescue noted.

The size and scope of the pro-life legal team underscores the trial’s significance.

Dalieden is represented by the Chicago-based Thomas More Society, as well as Charles LiMandri’s California-based Freedom of Conscience Defense Fund, and the Dhillon Law Group, which also represents CMP and BioMax. The Freedom of Conscience Defense Fund is also defending CMP, BioMax, and Lopez.

Merritt is represented by Horatio Mihet of the Florida-based Liberty Counsel and California attorney Nicolai Cocis. Rhomberg is represented by Short and California attorney Michael Millen, and Newman is represented by the Michigan-based American Center for Law and Justice and California law firm Myall Hurley.

Daleiden and Merritt are also facing a California state prosecution on 14 felony counts of illegally taping confidential information.

The preliminary hearing ended September 19, and Judge Christopher Hite of San Francisco Superior Court is expected to release a judgment by October 22 whether or not there are sufficient grounds to move to trial.