OAKLAND, Calif. (CN) – A federal judge indicated Thursday she won’t order Planned Parenthood to turn over information about the costs of its fetal tissue donation program that anti-abortion activists say would show it profits from aborted fetal tissue.
The issue is just one component in a bitter lawsuit that accuses the activists of smearing Planned Parenthood as a “Little Shop of Horrors” in their attempt to hamper abortion access.
In the Oakland hearing, U.S. Magistrate Judge Donna Ryu said she would review a 2016 Congressional report and raw footage anti-abortion activists David Daleiden and Sandra Merritt secretly shot inside abortion conferences purporting to show its doctors haggling over the price of fetal tissue to evaluate their request for the information.
Daleiden and his co-defendants say they have evidence that four California Planned Parenthood affiliates profited from fetal tissue donations by taking in more money than they spent facilitating the donations. The affiliates denied that the payments exceeded their reimbursement costs.
After the affiliates denied the allegation, the activists challenged them to identify the facts, documents and witnesses supporting their response.
But Ryu cautioned Thursday that the information may not be relevant enough to warrant discovery.
“If it turns out that this is a rabbit hole, that this is not particularly relevant, or even if it’s marginally relevant to something that is not going to be a big issue in the case, then there may be no further discovery or limited discovery,” she said.
Planned Parenthood sued in 2016, claiming Daleiden and Merritt endangered the safety of its doctors and patients and cost it millions of dollars in increased security costs after they posted doctored videos online making it seem as if Planned Parenthood sells aborted fetal tissue.
The videos led to a near-shutdown of the women’s health organization in 2015, after GOP lawmakers threatened to pull its funding.
Daleiden and Merritt separately moved to dismiss the suit and strike state claims of fraud, trespass, invasion of privacy, nonconsensual taping and contract. The pair insists the First Amendment protects their activities as “investigative journalists” – which included using fake driver’s licenses to gain access to the conferences. They said Planned Parenthood failed to adequately plead its claims or marshal enough evidence to support them.
On Thursday, Ryu appeared to side with Planned Parenthood, repeatedly stating that the defendants are entitled only to “things that are relevant and proportional.”
In an interview outside the courtroom, Daleiden disputed that the information he seeks is irrelevant.
“You heard the plaintiffs say multiple times at the podium today that a core part of this case is that they think I smeared them,” he said. “If it is the case of Planned Parenthood that I smeared them, then I think that I’m entitled as a defendant to prove nothing I said was a smear, that it was all true.”
In the hearing, Daleiden’s attorney Peter Breen with the Thomas More Society in Chicago referred Ryu to a Republican report issued by the Senate Judiciary Committee in December 2016 for a discussion of findings that Planned Parenthood made more money than it spent facilitating tissue donations.
According to the report – which Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, posted on his website – three fetal tissue procurement companies had since 2010 paid Planned Parenthood affiliates “substantially” more for aborted fetal tissue than it cost.
Moreover, the report found, although Planned Parenthood had a policy to ensure its affiliates were only reimbursed for the costs of facilitating donations, its affiliates failed to follow it. When the organization learned in 2011 that the affiliates had failed to comply with the policy, it canceled the policy rather than bring them back into compliance.
“[C]ontrary to the intent of the law, companies have charged thousands of dollars for specimens removed from a single aborted fetus; they have claimed the fees they charged only recovered acceptable costs when they had not, in fact, conducted any analysis of their costs when setting the fees; and their post hoc accounting rationalizations invoked indirect and tenuously-related costs in an attempt to justify their fees,” the report states.
Arnold & Porter Kaye Scholer attorney Amy Bomse countered that the report to which Breen had referred was the Republican majority’s report, and that a Democratic minority report had made different conclusions.
“There were people on that committee committed for years and years to defunding Planned Parenthood,” she told Ryu of the Republican-led committee.
She acknowledged that Planned Parenthood did “not always” follow its reimbursement policy. But she pointed out that a cost analysis it prepared at Grassley’s request showed a “significant” loss to the affiliates.
“It’s true that Planned Parenthood Federation of America had its own, more strict policy that was not always followed, but that is not evidence that anyone was intending to profit,” she said. “If you want to profit, you need to know what it’s costing you.”
In an interview after the hearing, Bomse expressed puzzlement over why Daleiden and his co-defendants want information from her client about its tissue donation program.
“Now they’re saying they need discovery to prove what they uncovered in their investigation,” Bomse said of the defendants, having noted in court that they initially stated they had gathered sufficient evidence at the conferences to prove Planned Parenthood sells fetal tissue. “Either they found it [the evidence], or they lied about the fact that they found it. And if they lied, that was a smear.”
Planned Parenthood wants the court to bar the defendants from entering its conferences and clinics without disclosing their true identities and to bar them from recording private conversations with its staff without their consent. In March 2017, a different Ninth Circuit panel upheld Orrick’s injunction in a similar lawsuit brought by the National Abortion Federation, an abortion providers’ trade group, blocking the publication of videos the defendants filmed at its annual meeting.
In that case, Orrick ruled that the pair waived their First Amendment rights when they signed confidentiality agreements to enter the meeting, an argument also made by Planned Parenthood. Orrick said he found no evidence – after reviewing hundreds of hours of recordings – that abortion providers had agreed to sell fetal tissue.
Also in March 2017, California prosecutors charged Daleiden and Merritt in San Francisco with 15 felony counts of conspiracy and invasion of privacy for surreptitiously recording more than a dozen people affiliated with Planned Parenthood.
Daleiden acknowledged creating fake driver’s licenses and business cards to enter the conferences by using an email password to access the confidential documents of StemExpress, according to an affidavit filed in the case.
He and Merritt used the materials to pose as exhibitors at conferences organized by the National Abortion Federation, according to the affidavit. They secretly recorded speakers and attendees, and set up supposedly private meetings at restaurants to record conversations with doctors and clinicians.
In April, the U.S. Supreme Court rejected a request by the defendants to publicly release the secret recordings they made at National Abortion Federation meetings in San Francisco and Baltimore.
Despite that, Daleiden believes he did the right thing.
“The way that Planned Parenthood’s abortion business commodifies the body parts of unborn children when they sell them, that’s a direct assault on our core values as Americans and as human beings about human equality and human dignity,” he said in an interview. “The body parts are only valuable for Planned Parenthood to sell precisely because they’re human, just like us.”