Update on Friday, Oct. 6, 2023: On Monday—the first day of the new Supreme Court term—the high Court rejected calls by anti-abortion groups to review a 2021 ruling from the U.S. District Court for the Northern District of California in a lawsuit against David Daleiden and the Center for Medical Progress for releasing recordings and materials they obtained illegally when they infiltrated National Abortion Federation and Planned Parenthood meetings and conferences.
The 2021 ruling was reaffirmed in August 2022, after the U.S. Court of Appeals for the Ninth Circuit upheld the permanent injunction. The defendants then asked the Supreme Court to hear an appeal, which the Court refused this week. This means the defendants have exhausted all appeal routes and must pay the $2.4 million in damages they were ordered to pay Planned Parenthood.
“After 8+ yrs in court, our case against the co-conspirators who infiltrated our meetings, targeted abortion providers, and released misleading videos is over,” said NAF on X (formerly Twitter).
The National Abortion Federation (NAF), an international professional association of abortion providers, won a major victory in a lawsuit against anti-abortion extremist David Daleiden and his front companies—the Center for Medical Progress (CMP) and BioMax Procurement Services, a fake biomedical research company. Using false identification, Daleiden and his associates infiltrated and illegally recorded NAF meetings. On April 7, a federal court in California entered a permanent injunction against Daleiden, CMP and BioMax prohibiting them from releasing any of the illegally obtained recordings.
“Today’s ruling is a long, long time coming and a major victory for NAF and our members,” said Talcott Camp, NAF’s chief legal and strategy officer.
We give tremendous thanks to our brilliant legal team at @MoFoLLP who took on this case and defended our members through multiple appeals over the last six years! 👏👏👏
— NAF (@NatAbortionFed) April 7, 2021
Daleiden and his associates used similar tactics to infiltrate and record Planned Parenthood meetings and then released heavily edited and misleading footage online claiming they showed providers discussing the illegal sale of fetal tissue. These videos led to severe harassment and violence against reproductive health care providers and were fodder for sham congressional hearings designed to gut federal and state family planning funding.
“This permanent injunction is incredibly important to the safety and security of our members,” said The Very Reverend Katherine Ragsdale, NAF president and CEO. “Without a permanent injunction, there is no question that David Daleiden would continue releasing footage from our meetings, which would result in cycles of harassment and violence against NAF, our members, and other abortion providers as we have seen repeatedly and consistently happen with each video release since 2015.”
Subterfuge and Misrepresentation
In 2014 and 2015, Daleiden gained access to the NAF meetings by creating a front company—BioMax—that claimed to be a vendor, and using fake IDs to register for the events on behalf of BioMax. While at the meetings, Daleiden surreptitiously recorded people in direct violation of a confidentiality agreement he signed affirming he was truthfully and accurately representing his business at the meetings and would not make video or audio recordings. He also agreed to keep information learned at the event confidential.
“David Daleiden and his co-conspirators engaged in subterfuge to secretly and improperly record NAF members,” attorney Liz Saxe told Ms. (Saxe is a senior associate at the Washington D.C.-based law firm of Covington and Burlington, which advises the National Clinic Access Project of the Feminist Majority Foundation.) “The defendants used fake names and lied about their purpose to gain access to NAF meetings after knowingly signing confidentiality agreements that required them to be forthright about their identities and purpose and prohibited making recordings.”
Daleiden originally registered CMP with the IRS as a tax-exempt biomedical charity, but later re-registered CMP as a journalism organization. Before founding CMP in 2013, Daleiden worked for the anti-abortion organization Live Action, known for taking undercover videos at Planned Parenthood clinics and then editing them in an intentionally misleading manner. Live Action has been restricted or blocked from several social media platforms, including Pinterest, which permanently banned the organization Live Action in June of 2019 for spreading harmful misinformation, including “medical misinformation and conspiracies that turn individuals and facilities into targets for harassment or violence.”
Despite the confidentiality agreement, Daleiden and CMP leaked their illegally obtained and misleadingly-edited recordings on social media beginning in July of 2015, alleging they showed Planned Parenthood personnel and others affiliated with NAF illegally selling fetal tissue—claims later disproven by numerous investigations by federal, state and local agencies. According to Slate, “More than a dozen states conducted investigations that cleared Planned Parenthood of any wrongdoing or have declined to investigate altogether, citing a lack of evidence.” The videos also led to six separate congressional investigations, which found no wrongdoing.
Daleiden’s Lies Spur Violence
Shortly after release of the videos, clinics reported a surge of anti-abortion violence and harassment, including protestors blocking access to clinics, invading clinics, stalking clinicians and staff, and making death threats and bomb threats. In November of 2015, a gunman—Robert Lewis Dear—opened fire on a Colorado Springs clinic featured in the videos, shooting three people dead and injuring nine others.
“There was an astronomical increase in violence and harassment within the months that followed the release and publication of these videos,” said duVergne Gaines, director of the National Clinic Access Project at the Feminist Majority Foundation. “The Robert Lewis Dear murders in Colorado Springs were one of the most violent shootings against an abortion provider ever in the country. And he shouted the slogans of the Center for Medical Progress: ‘No More Baby Parts.’”
In January of 2015, a Texas grand jury cleared one of the clinics Daleiden targeted—the Gulf Coast chapter of Planned Parenthood—of wrongdoing, but indicted Daleiden on a felony count of tampering with governmental records by making and using a fake driver’s license, and a misdemeanor charge for emailing an offer to buy fetal tissue for $1,600. Ultimately, a judge dismissed the indictment on a technicality, but in March of 2017 California indicted Daleiden and a co-conspirator Sandra Merritt on 14 felony counts of eavesdropping and one count of conspiracy to invade privacy.
Planned Parenthood and NAF Sue Daleiden
In response to Daleiden’s subterfuge, Planned Parenthood Federation of America and NAF each filed separate federal lawsuits for fraud, breach of contract and other claims in July of 2015. NAF was represented pro bono by the law firm Morrison and Foerster. At the outset of NAF’s litigation, the court entered a preliminary injunction preventing further release of the recordings. In spite of this, Daleiden and his attorney ignored NAF’s federal injunction and in 2017 released videos taken at NAF’s meetings. In a scathing subsequent decision, the federal court held Daleiden and his criminal counsel in contempt of court and sanctioned $195,000 plus interest.
In November of 2019, Planned Parenthood won their case after a hard-fought trial. A jury found Daleiden and CMP broke multiple state and federal laws, including the Racketeer Influenced and Corrupt Organizations Act (RICO), fraud, trespass, breach of contract, and illegal secret recording. The jury awarded Planned Parenthood over $2 million for the injuries caused to them by Daleiden and his co-conspirators.
On April 7, Judge William Orrick entered summary judgment in favor of NAF and issued a permanent injunction, preventing Daleiden, CMP and BioMax from publishing or disclosing any recordings made at the 2014 or 2015 NAF meetings. The judge found past releases of the videos had resulted in harassment, threats, and violence directed at NAF, its members, and abortion providers generally.
“NAF marshalled significant evidence that, after Daleiden improperly released his secret recordings, doctors and staff faced a significant uptick in serious threats,” says Saxe. “This injunction is an important step to protect providers and staff from further threats. Daleiden has already been held in contempt once for releasing materials in violation of a temporary injunction and this permanent injunction will allow the court to hold him accountable for future violations.”
Happy Friday! Just a little end-of-the-week reminder that we LOVE abortion providers. #AbortionIsHealthCare #AbortionProvidersAreHeroes pic.twitter.com/yFEfGPhQOu
— NAF (@NatAbortionFed) April 9, 2021
Republicans Weaponize Daleiden’s Lies
Daleiden’s illegally obtained and misleadingly-edited videos played a significant role in the Republican push to defund Planned Parenthood and other reproductive health clinics across the nation. Conservative states used Daleiden’s smear campaign to justify stripping Planned Parenthood and other reproductive health clinics of federal family planning funds and Medicaid reimbursements. At the federal level, the Trump administration adopted a domestic “gag rule” in 2019, barring federal Title X funds from going to clinics referring patients for abortion health care.
Guttmacher Institute estimates that 981 U.S. clinics receiving Title X funding—approximately one-quarter of all sites receiving Title X funding as of June 2019—likely left the Title X network because of the gag rule, reducing the Title X network’s capacity by 46 percent nationwide and jeopardizing care for 1.6 million female patients nationwide. Six states lost all Title X services entirely since 2019. California’s participating sites dwindled by 36 percent, and New York’s 174 providers receiving Title X funding dropped to just two. Some of this money was redirected to anti-abortion groups, such as the coercive Obria Medical Clinics—a Christian, anti-abortion organization that opposes hormonal birth control and other contraceptives and offers training in the unreliable rhythm method. In a recent proposal to reverse the gag rule, the Department of Health and Human Services estimated the restriction may have resulted in 181,477 unintended pregnancies. These cuts in access to reproductive health care have had a devastating impact on women’s health and well-being that is likely to last for years.
Accountability for Harm Done
“It is noteworthy that Judge Orrick, who also presided over the case brought by Planned Parenthood against Daleiden and his associates, identified no criminal activity by any of the providers, staff or others featured in the recordings,” said Saxe. “The ultimate result of Daleiden’s subterfuge was not the uncovering of a criminal conspiracy by women’s health providers—because there isn’t one—but an increase in anti-choice extremists terrorizing doctors and staff, which should not be tolerated.”
The criminal case against Daleiden in California is ongoing. If found guilty, Daleiden could serve close to a decade in prison.
“After Daleiden’s deceptive videos targeting Planned Parenthood providers caught the reproductive rights community by surprise, NAF’s aggressive and immediate legal action made a big difference preventing the videos taken at NAF’s meetings from being released and protecting their providers,” said Gaines.
Gaines sees the two major legal victories for Planned Parenthood and NAF as a warning to anti-abortion extremists inclined to break the law.
“These decisions, hopefully, will stop these tactics and put these individuals on notice that they will be prosecuted to the fullest extent of the law,” said Gaines. “The people who played a central role in executing this horrendous initiative are being held accountable at long last.”
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