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Center for Medical Progress lead investigator David DaleidenAmerican Life League

SAN FRANCISCO, California, October 19, 2016 (LifeSiteNews) — A federal appeals court in San Francisco heard from judges, pro-life investigators, and the abortion industry on a dispute over videos that exposed Planned Parenthood’s criminal activity.

Justices Consuelo María Callahan, Andrew D. Hurwitz, and Donald W. Molloy of the Ninth Circuit heard the National Abortion Federation (NAF) vs. the Center for Medical Progress (CMP) on Tuesday in San Francisco’s James R. Browning U.S. Courthouse. The decision before the court was whether or not to make permanent an injunction issued in July suppressing undercover videos recorded at two NAF conventions.

At one point during the hearing, Justice Hurwitz inadvertently revealed his personal feelings about what he perceived as the public’s interest in the abortion industry's profiteering from “fresh” and “intact” aborted baby parts. “Frankly, more people care about the iPhone than anything we're talking about today,” he said.

Toward the end of the hearing, under questioning, the NAF attorney acknowledged that the NAF non-disclosure consent form was very broadly worded.

After the hearing, the CMP issued the following statement: “Planned Parenthood's proxy group, the National Abortion Federation, continued their unprecedented and extreme attack on the First Amendment today as they argued to keep the undercover videotapes of NAF's annual meetings secret. Planned Parenthood and NAF are trying to suppress the freedom of the citizen press and the public's right to know, in order to keep clear evidence of their coordinated criminal sale of aborted baby body parts from being revealed.”

In the press release, CMP noted Congress' expressed concern about NAF marketing baby parts for StemExpress. “The House Energy & Commerce Committee's Select Investigative Panel recently revealed that NAF and StemExpress negotiated an agreement to market StemExpress fetal tissue sales as a 'value added service' to abortion clinics —and now StemExpress has gone into criminal contempt of Congress rather than produce its financial records in response to subpoenas.”

“The justice system must cut the Gordian knot of the unconstitutional prior restraint blocking the release of the videos,” the CMP statement reads. “And we will not stop until our First Amendment rights, and those of all Americans, are vindicated.”

In Tuesday's hearing, 14 attorneys general who filed an amicus brief in the case were represented and allowed to address the court, asking that the undercover videos be released at least to law enforcement in order to determine if criminal activity indeed had occurred and to take proper action.

However, before one of the judge’s legal counsel could get out his first sentence, he was interrupted by Hurwitz. In fact, within the first few minutes he was interrupted 14 times by Hurwitz, who in the early going literally did not allow him to finish a sentence.

Callahan took over, clarifying that the judges’ argument is that as law enforcement officials they have a unique interest in finding if criminal activity has taken place.

Hurwitz then interrupted Callahan and continued to argue, asking why so many judges would have “prejudice” to see the videos. He continued to interrupt numerous times.

Throughout the hearing, Molloy was silent. His representative was grilled for 16 minutes and 10 seconds.

Attorney Katherine Short of the Life Legal Defense Foundation (LLDF) spoke on behalf of Daleiden, saying no federal court has upheld an order favoring private agreements over releasing information that is clearly in the public interest. She was asked by Callahan to clarify CMP's position and then was interrupted repeatedly by Hurwitz, arguing that the injunction was fair to NAF.

Hurwitz and Callahan both asked about the NAF claim that releasing the videos would or could incite violence and endanger the lives of NAF affiliates. Short responded that NAF's claim of “irreparable harm” involved nothing more than internet social media comments and that the public has a right to know if the abortion industry is involved in illegal activity.

In an ironic twist, the NAF attorney argued that the preliminary injunction keeping the undercover videos from judges and other law enforcement should be upheld, in part because CMP did not go to law enforcement right away. 

The NAF attorney also misrepresented CMP's position, repeatedly stating CMP “waived their First Amendment rights,” when in fact CMP admitted they signed a confidentiality agreement but with the exposure of criminal activity, the public interest overrides the signed confidentiality agreement.

“Abortion is an extremely safe procedure in this country, and part of the reason it is so safe is that members of the industry can gather together to discuss issues they can't discuss with the public,” the NAF attorney argued.  “We have a First Amendment right to exclude members of the public.”

The thrust of the NAF attorney and Hurwitz and Callahan's comments centered around Judge William H. Orrick's determination last year that there is no evidence of criminal activity on the undercover videos, therefore suppressing the videos is reasonable. “The District Court (Judge Orrick) found no evidence of criminal activity,” Hurwitz said, arguing that whether or not criminal activity was revealed in the videos is “critical to our decision here.” 

Short had reserved three minutes to respond to the NAF attorney's charges. “No one can waive the public's right to know,” Short rebutted. She was summarily interrupted by Hurwitz, who challenged her with, “But can one waive your client's right to speak?”

In final Q&A, the two judges sparred with Short on what information discovered and to what degree that information might be in the public interest would constitute overriding  a confidentiality agreement in favor of the public's right to know. 

Short pointed out the inconsistency between what is now the NAF’s claim that lives could be endangered if the undercover videos were released and NAF's practice of holding a convention open to outside venders and exhibitors, as well as hotel staff and others who could leak discussions and information.

“Having done (their convention) that way, then to turn around and say, 'If any of this information leaks out, our people are in danger of death' — those two things don't go together,” she argued.

The court then led a private hearing to discuss the suppressed videos. LifeSiteNews spoke with the Ninth Circuit public information officer, who explained that the court's ruling will be handed down after the judges meet to discuss their decision, assign who will write the court's opinion, meet again to agree on the written opinion's wording, and then issue their ruling.

Background on the case

In April 2013, pro-life investigators David Daleiden and Sandra Merritt secretly recorded the annual meeting of the National Abortion Federation along with other abortion industry meetings to obtain information about possible criminal activity in the sale of aborted human body parts for profit.

The Center for Medical Progress released some of their undercover footage, showing Planned Parenthood officials eager to make profits off the sale of baby parts, talking about the illegal modifying of abortion procedures to obtain “intact” babies for sale, and the delay of procedures to obtain “fresh” specimens to pay for luxury cars for Planned Parenthood representatives.

The National Abortion Federation sued to prevent the Center for Medical Progress from releasing any footage from their 2014 or 2015 conventions. NAF said Daleiden and Merritt signed a confidentiality agreement not to reveal anything that took place at their trade expos.

“No non-disclosure agreement is valid in the face of illegal activity,” Daleiden said. His legal counsel argues that the lawsuit amounts to an unlawful attempt to suppress information, threatening undercover journalists.

Daleiden's attorney, Thomas Brejcha of the Thomas More Society, has vowed that all of the NAF footage will be released, even if they have to appeal all the way to the Supreme Court.

The CMP undercover videos created a national controversy. They not only offered evidence that Planned Parenthood trafficks in human body parts for profit, but show Planned Parenthood officials making shocking statements such as abortionist Dr. Lisa Harris telling her colleagues that “killing” is “the most important thing I could do with my life,” and abortion business owner Renee Chelian saying that burning aborted babies' bodies to generate electricity is “a great idea.”

In July 2015, Judge William H. Orrick III of the Northern District of California granted NAF a preliminary injunction because, in Orrick's words, this was not a “typical ‘newsgathering’ case.” Orrick concluded that Daleiden and Merritt “engaged in repeated instances of fraud” by investigating undercover.

Orrick dismissed the revelations of the CMP videos — of the sale of baby parts, the illegal modifying of abortion procedures to obtain “intact” babies, and the delay of procedures to obtain “fresh” specimens to pay for luxury cars for Planned Parenthood representatives — by saying they “have not been pieces of journalistic integrity but misleadingly edited videos and unfounded assertions.”

CMP filed a response, asking that the preliminary injunction be lifted and not made permanent. They argued that the case “raises the question whether a private confidentiality agreement can justify enjoining the disclosure of evidence of criminal activity obtained through investigative journalism on matters of national public interest.”

CMP reminded the court that they used the same procedures “standard for investigative reporting” and that their “goal was not to obtain money, property, goods, or services but to gather information about illegal and unethical practices.”

The CMP filing, sharing their side of the story, cited a case in the very same circuit presiding (Ninth Circuit's ruling in Animal Legal Defense Fund v. Otter) that  ruled definitively that “deceptive tactics to procure information in undercover investigations is not 'fraud' and is fully protected by the First Amendment.”

The CMP also issued a statement on “the censorial lawsuit” against them, providing five pages of examples of criminal and unethical admissions from NAF and Planned Parenthood abortion providers documented at NAF meetings, redacted from the public filing, and prevented from release by court order.

“The National Abortion Federation and Planned Parenthood continue to trample on the First Amendment freedoms of the American people, even as these two halves of the abortion industry are under state and federal investigation for their criminal sale of baby body parts,” the CMP statement concludes.

Tom Brejcha, Thomas More Society president and chief counsel, explained, “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.”

Brejcha concluded, “NAF’s lawsuit, charging David with ‘fraud’ and ‘racketeering’ is nothing less than illicit censorship.”

It is one case that has many members of the media on the pro-life side, albeit indirectly.  The U.S. Reporters’ Committee filed a ‘friend of the Court’ brief arguing that if the court upholds its injunction against undercover investigation videos, such a ruling “has the potential to significantly affect the First Amendment rights of the news media and the public at large.”

As Brejcha summarized, “If NAF wins this case, criminals will rejoice and journalists will weep.”

CMP's footage of the NAF conventions is suspected to be the most damning and incriminating footage of Planned Parenthood and their abortion industry cohorts that CMP has, though it is currently under preliminary injunction and suppressed.

In July, a Houston-area grand jury dismissed all charges against Daleiden and Merritt.

In September, California Gov. Jerry Brown signed a law punishing anyone who records a “confidential communication with a health care provider” with up to one year in prison.