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Tuesday, May 28, 2024 | Back issues
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Abortion Foe Must Tell Before Show in House

SAN FRANCISCO (CN) - A federal judge on Tuesday ordered an anti-abortion group to show an organization whose meetings were secretly taped what videos and documents it plans to turn over to Congress.

Last week, Republican Congressman Jason Chaffetz of Utah sent a letter demanding full and immediate compliance with a congressional subpoena seeking videos and other materials obtained by the Center for Medical Progress, a group of self-described citizen journalists.

In July, U.S. District Judge William Orrick issued a restraining order barring the center from releasing the video hours after the National Abortion Federation sued the group for fraud, conspiracy, privacy invasion and breaching signed confidentiality agreements.

The foundation, an abortion-provider trade group, claims the center falsely posed as a biomedical company to infiltrate and secretly record its meetings.

In recent months, the center has released at least six videos of Planned Parenthood officials and others discussing the preservation and transfer of fetal tissue for research.

A study commissioned by Planned Parenthood in August found four of those videos were deceptively edited to imply wrongdoing and that the videos showed no evidence that the nation's largest abortion provider sold fetal tissue for profit as alleged.

In his Sept. 30 letter, Chaffetz claimed Congress' power of inquiry trumps any court's restraining order and that no judge can interfere with the legislative branch's constitutionally protected power to investigate issues.

The subpoena, issued by the House Committee on Oversight and Government Reform - which Chaffetz chairs - seeks all unedited video footage, documents and other materials relating to the acquisition, preparation and sale of fetal tissue the center has in its possession.

On Monday, the foundation urged the court to block the center from complying with the subpoena, arguing Chaffetz' letter specified no deadline for compliance and that full House authorization is required to enforce such a subpoena.

In his Oct. 6 ruling, Orrick said the foundation failed to present an argument that the subpoena falls outside the sphere of the House committee's legitimate legislative activity.

"Absent an attempt to exceed that sphere, the Speech and Debate Clause provides immunity to allow Congress to independently perform it legislative duties through subpoena powers," Orrick wrote.

The judge said he issued the restraining to protect foundation members' privacy rights and because the center had clearly breached a nondisclosure agreement it signed "under false pretenses."

"I remain concerned about the threat of irreparable injury to the privacy rights of the foundation's members, shown by the foundation through the history of violence against providers of abortion care and the specific acts of intimidation against members, including death threats, harassment and reputational harm, apparently caused by the release of defendants' videos prior to the temporary restraining order," Orrick wrote.

However, Orrick also agreed with the center that disclosure of materials to Congress is not the same as "public disclosure."

Orrick said courts must presume congressional committees "will exercise their powers responsibly and with due regard for the rights of affected parties," citing the D.C. Circuit's 1978 decision Exxon Corp v. Fed. Trade Com.

At the same time, the judge also recognized how the center seeks to expeditiously provide information to Congress while at the same time devising a variety of methods to avoid disclosing the same information to the foundation.

Orrick has denied multiple requests by the center to stay discovery or to allow the defendant to claim Fifth Amendment immunity to avoid responding to the foundation's discovery requests.

Last month, the Ninth Circuit also rejected the center's mandamus petition seeking to stay discovery in the case.

Orrick ordered the anti-abortion group to deliver "a true and correct copy" of everything it plans to provide to Congress, including video footage and documents requested in the subpoena.

The judge further ruled the center must file a request with the court explaining how it has the right to assert privilege in not turning the materials over to the foundation before complying with the subpoena.

"I will not countenance a game of hide-the-ball with respect to these documents, video footage and communications, that interferes directly with these proceedings," Orrick wrote.

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