RICO Claims Against Abortion Foes on Thin Ice

SAN FRANCISCO (CN) — A federal judge may hand a victory to both Planned Parenthood and the anti-abortion activists who sparked a nationwide furor last year after they posted doctored videos online accusing the women's health organization of selling aborted fetuses.

At a hearing Wednesday, U.S. District Judge William Orrick questioned whether Planned Parenthood would prevail on its racketeering claims against the Center for Medical Progress and several of its activists, but said he would likely throw out the defendants' anti-SLAPP motion to dismiss the suit.

Planned Parenthood sued the anti-abortion activists in January, claiming they had cost it millions of dollars by setting up a fake fetal tissue procurement company called BioMax to infiltrate its conferences and secretly record its doctors discussing the sale of fetal tissue.

The activists then turned those recordings into a series of smear videos, which Planned Parenthood claims were edited to create the impression that the health care provider sells the tissue. Planned Parenthood says it donates fetal tissue for medical research with the consent of its patients and does not profit from the donations.

Orrick questioned on Wednesday whether Planned Parenthood had alleged under the Racketeer Influenced and Corrupt Organizations Act a direct relationship between the defendants' conduct and the injuries it suffered.

"If the claim was as a result of finding out your clients illegally accessed the conference, they had to change security protocols, those damages would be direct?" Orrick asked defendant attorney Peter Breen, referring to the increased costs Planned Parenthood incurred beefing up security to protect its clinics following the videos' release.

"Disagree," Breen responded. "Plaintiffs cited an increased cost of doing business for a RICO claim. Security issues are not the type of injuries RICO was intended to repair. There may be state law injuries to discuss but not under our nation's racketeering laws."

Breen added that the money Planned Parenthood spent responding to government investigations and addressing vandalism and arson at its clinics after the videos were posted online was not attributable to the defendants but instead to third parties.

Planned Parenthood attorney Jee Young You countered, "What were the intended consequences of the defendants' actions? In this case, direct harm to Planned Parenthood, interruption to services so our clients could not get their constitutionally guaranteed right to an abortion. There is a very direct correlation between who the intended victims were and the injuries they suffered."

Last November, a gunman killed three people at a Planned Parenthood clinic in Colorado Springs, and the organization's California clinics experienced a five-fold increase in security incidents after the videos were published, according to the complaint.

Orrick also echoed the defendants' argument for dismissing the racketeering claim, saying Planned Parenthood may have fallen short of establishing that the activists had intended to defraud it of money or property when they posed as Biomax employees.

Instead, Planned Parenthood claims the defendants had sought to obtain intangible assets such as confidential information and access to its doctors, which only constitute "property" under certain state statutes, according to the defendants.

However, You told the court the intangible property rights Planned Parenthood asserted in its contracts are recognized property rights, and that the defendants had violated certain other tangible property rights, though she did not say what those property rights were.

Orrick said he was inclined to deny the defendants' anti-SLAPP motion seeking to dismiss the suit on the basis that it denied them their free speech rights, because Planned Parenthood would likely succeed on its claims.

"A central argument of the defendants was that the plaintiffs failed to put up any evidence of the argument, but that wasn't the basis of the motion," Orrick said. "With respect to the pleading deficiencies identified, I just don't think they're well taken."

The defendants contend their activity as "investigative journalists" was protected under the First Amendment. But Planned Parenthood says the defendants had sought to entrap their interviewees rather than conduct legitimate investigations.

At one point, Center for Medical Progress CEO and defendant David Daleiden told defendant Susan Merritt to talk with a particular doctor "now that she's been drinking," according to Planned Parenthood.

Planned Parenthood argues the defendants waived their First Amendment rights to publish the videos by signing confidentiality agreements prohibiting them from recording inside conferences and disclosing confidential information. And filming its doctors without their consent was illegal and not protected under the anti-SLAPP statute even if it was done in the pursuit of free speech, Planned Parenthood says.

You is with Arnold & Porter in San Francisco. Breen is with the Thomas Moore Society in Chicago.

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