SAN FRANCISCO (CN) – The Ninth Circuit on Monday seemed poised to lift a court order blocking an anti-abortion activist’s access to public information about people associated with a University of Washington fetal-tissue research lab.
This marks the second time the appeals court has reviewed the order handed down by a Seattle federal judge prohibiting the university from releasing documents without first redacting all personally identifying information.
At issue is the question of whether the First Amendment protects academic research.
“I think if we affirm the district court’s position…we would recognize there’s some First Amendment protection for researchers,” Senior U.S. Circuit Judge A. Wallace Tashima, a Clinton appointee, said in a hearing in San Francisco Monday. “To me, that’s an extension. I was worried about this the first time around.”
Anti-abortion activist David Daleiden made headlines in 2015 when he released a series of undercover videos shot inside abortion conferences purporting to show Planned Parenthood sells aborted fetal tissue for profit.
The following year, Daleiden filed a public-records request with the University of Washington for documents related to the purchase of human fetal tissue, including tissue obtained via abortion, at its Birth Defects Research Laboratory. He also asked for communications between the lab and clinics that provide abortion services in Washington state and Idaho.
The University of Washington birth defects research lab collects and distributes fetal tissue to nonprofit research and academic facilities around the United States, collaborating with clinics and hospitals in Washington to collect fetal tissue for research, according to court records.
Before the university released the information to Daleiden, eight anonymous plaintiffs employed by the University of Washington, various Washington hospitals and Planned Parenthood filed a putative class action against Daleiden and the university seeking to redact their personal information from the request.
They argued research and advocacy related to fetal-tissue research and donation is protected First Amendment activity because disclosure of information revealing their connection to this field would endanger their safety and have a “chilling effect” on their work.
Daleiden clarified in response that names and personal contact information should be redacted, but he insisted on access to job titles. The plaintiffs pushed back, arguing some people could be identified from their job titles alone.
In November 2016, U.S. District Judge James Robart issued an order temporarily prohibiting the university from releasing documents without first redacting all personally identifying information, including job titles.
Daleiden appealed to the Ninth Circuit, which found Robart erroneously relied on a “blanket finding” that the entire proposed class was engaged in protected First Amendment activity. It remanded the case and left the preliminary block on non-redacted documents in place for 120 days to allow Robart time to further investigate the claims.
But Robart reissued the block in November 2017, restating his earlier First Amendment holding and adding a state law privacy ground.
On Monday, the same three-judge panel that reversed Robart in 2017 again appeared skeptical of the proposition that the First Amendment protects research and related tasks.
“Why is collection and delivery of fetal tissue a First Amendment activity? That’s almost beyond me,” Tashima said. “It’s like delivering lunch to someone at the laboratory.”
Class attorney Vanessa Power of Stoel Rives replied the “controversial” and “politicized” nature of abortion in the United States qualifies fetal-tissue research as advocacy, a protected activity. That, plus the associated risk of harm to the plaintiffs if their activities were revealed to the public, warrants redaction of job titles, she said.
Tashima was not persuaded.
“What you’re saying is any connection with a controversial topic entitles the person on the other end of the connection to constitutional protection,” he replied, before challenging Power to summon supporting case law.
Power offered Planned Parenthood Ass’n of Utah v. Herbert, in which the 10th Circuit found in 2016 that associating with organizations for political, social and education reasons involving abortion services is protected activity.
But Daleiden’s attorney Peter Breen countered his case isn’t like Herbert, in which a state official violated the doctrine of “unconstitutional conditions” by blocking funding to Planned Parenthood based on the official’s anti-abortion politics.
“We don’t take people’s political views into account when we make decisions,” Breen,who practices with the Thomas More Society, said about Washington’s Public Records Act.
To further distance his client’s case from Herbert, Breen noted the Supreme Court “appropriately” denied review of Herbert Monday morning. Conduct like that of the Herbert official, he said, “should be condemned.”
Addressing Power’s argument about controversial research, Breen told the panel he “might urge that controversy is a reason for sunlight, not a reason for cloaking activity.”
In his opening remarks, Breen revealed that despite suing anonymously, at least two plaintiffs have voluntarily identified themselves in connection with fetal-tissue research in national publications like The New York Times and Politico.
“How in the world can you say you’re being chilled when you’ve put yourself out there on this contentious issue?” Breen said.
Arguing for the University of Washington, Washington Deputy Solicitor General Jeffrey Even said that while the university had no opinion on whether research is protected activity, it “would be concerned about the academic freedom of its researchers.”
U.S. Circuit Judges M. Margaret McKeown, a Clinton appointee, and Jacqueline Nguyen, an Obama appointee, also sat on the panel, which did not indicate when it will rule.
The issue of access to information about fetal-tissue donation is also unfolding in a lawsuit filed against Daleiden in San Francisco federal court.
Planned Parenthood sued Daleiden and his anti-abortion Center for Medical Progress in 2016 after GOP lawmakers threatened to pull its funding based on the videos Daleiden published.
Planned Parenthood claims the videos were doctored to make it seem as though the organization sells aborted fetal tissue when it actually only donates it for research purposes with the consent of patients.
In July, Daleiden asked U.S. Magistrate Judge Donna Ryu to order certain local Planned Parenthood affiliates to produce information about the costs of their fetal tissue donation programs, saying it would show they profit from the programs by taking in more money than they spend facilitating donations.
Ryu signaled she would deny the motion because the requested information likely isn’t relevant enough to warrant discovery. Returning to the motion in late November, Ryu called it “confusing and convoluted.”
Daleiden’s lawyers refiled the motion, and a hearing on the matter is scheduled for January 2019.