SAN FRANCISCO (CN) - It seemed like a typical business lunch at a bustling restaurant in Century City. A woman dressed appropriately for 90-degree heat approaches a table and greets a man and another woman who are already seated.
They’re from BioMax Procurement Services, a company that provides medical researchers with organs. They’re new to the fetal tissue selling game and looking to expand their reach. They’ve arranged a meeting with a physician who works for Planned Parenthood to get some advice on how to connect with its affiliates, and possibly do business.
“I wanted to pick your brain,” says Susan Tennenbaum, the woman from BioMax.
Pleasantries are exchanged. There’s some discussion about the type of wine the doctor prefers. She says red.
“All girls are white!” Tennenbaum jokingly exclaims. A server ultimately brings a bottle of red.
The conversation lasts more than two hours. A year later, an eight minute video surfaces on YouTube, and the doctor’s life upends. Susan Merritt and her subordinate Robert Sarkis are actually Sandra Merritt and David Daleiden, the founder of the anti-abortion organization Center for Medical Progress.
In 2017, Merritt and Daleiden were each charged with one count of invasion of privacy and 14 felony counts of recording people without their consent. Wednesday was the second day of a nine-day preliminary hearing that will determine whether Merritt and Daleiden will be put on trial.
Posing as representatives of BioMax, the pair infiltrated the National Abortion Federation’s 2014 meeting in San Francisco, where they covertly recorded conversations with abortion providers.
That’s where they met Doe 9, the Planned Parenthood doctor.
She said she agreed to meet Merritt and Daleiden, or Tennenbaum and Sarkis, at CRAFT LA on July 25, 2014, after exchanging emails with Daleiden.
“The business we are in is generally discussed in confidential settings,” Doe 9 said under direct examination by Deputy Attorney General Johnette Jauron.
When Jauron asked why, she said “Because it makes people uncomfortable.”
In the video played in court Wednesday, Doe 9 can be heard divulging the names and locations of some Planned Parenthood affiliates who might be willing to work with BioMax. Sarkis and Tennenbaum were interested in fetal tissue with a gestation period of at least 18 weeks, though 20 was preferable for medical research.
There wasn’t much that could be done in California - the market was saturated by other companies. Stem Express had pretty much cornered Northern California.
“We have an affiliate in Orlando that goes to 20 weeks,” Doe 9 told them.
She said they could expect to pay $30-$100 “per specimen,” emphasizing throughout the conversation that for perception reasons Planned Parenthood affiliates weren’t interested in money. She said most were operating on razor-thin budgets and would be happy to break even.
“It’s much, much less about money,” she said. “This is not a service they should be making money from.”
The appeal for abortion providers, she said, was that the fetal tissue was being used for important research on diseases like Alzheimer’s. It also meant that they didn’t need to dispose of the tissue themselves.
“It’s less tissue they need to worry about,” she said.
She added, “There’s not a provider that doesn't want to do this.”
On cross examination, Merritt’s attorney Horatio Mihet asked Doe 9 whether she cared that the tape had been made public. When Doe 9 answered yes, he impeached her with a transcript of her deposition from Planned Parenthood’s civil case against the Center for Medical Progress, where Doe 9 said, “I haven't done anything wrong in the videos. It doesn't matter to me if they're released publicly.”
He also asked her whether she thought their conversation could be overheard by the server and other restaurant staff who could be seen passing by.
California’s penal code excludes from a confidential communication any conversation that can be reasonably overheard or recorded; an important aspect of Merritt’s and Daleiden’s defense.
Attorney Nicolai Cocis, who also represents Merritt, spent the morning grilling Doe 3, another abortion provider Daleiden filmed at the NAF conference, on whether passersby could hear their conversation. He played a clip of that video, pausing every time a stranger entered the frame.
Doe 3 insisted that that ambient noise in the room made it almost impossible to overhear a conversation, but did say that some people walking past may have been close enough to hear snippets.
Doe 3, a well-known retired physician and abortion provider who worked for the Southwestern Women’s Options clinic, said she did not feel the need to lower her voice or take privacy precautions at the 2014 conference.
“NAF is a very secretive conference. People who go are abortion providers in the field or are vendors to abortion providers," she said.
Doe 3, who appeared in the documentary “After Tiller” about doctors who provide late-term abortions, isn't shy about her work.
But Jauron asked Doe 3 if she saw a difference in her expectation of privacy between the documentary and the conference.
“Yes,” she said. “Everyone in the world can see the film. The only people at the conference were people we could trust. Obviously that’s not the case.”
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