Second Trial Unlikely Over Activists’ Invasion of Abortion Industry Conferences

David Daleiden, an anti-abortion activist who was charged with invasion of privacy for filming attendees at National Abortion Federation conferences in California.

SAN FRANCISCO (CN) — A federal judge signaled his intention on Wednesday to rule in favor of the National Abortion Federation and enter a permanent injunction barring the release of videos taken surreptitiously by anti-abortion activists at industry conferences years ago.

The ruling would avoid a trial over whether the recordings were made in pursuit of a scheme to fraudulently infiltrate the professional association for abortion providers around the country.

Using fake credentials, David Daleiden and fellow activist Sandra Merritt gained entrance to NAF-sponsored conferences 2013 to 2015. Posing as fetal tissue purveyors for a fake company called Biomax, the pair secretly recorded conversations with abortion providers that were posted online.

Planned Parenthood and the National Abortion Federation took Daleiden and his associates to court, accusing them in separate federal lawsuits of trespassing, fraud and breach of contract. 

Planned Parenthood’s case went to trial in 2019, resulting in a $2 million jury verdict

But NAF agreed to dismiss most of its claims and move for summary judgment on its lone breach of contract claim to resolve the case quickly.

At a hearing held by video Wednesday, U.S. District Judge William Orrick said the Planned Parenthood case established that Daleiden and Merritt had breached the federation’s exhibitor and confidentiality agreements. 

He then turned his focus on whether the injunction he entered years ago should be made permanent.

“The real question I’m interested in is the scope of the injunction,” Orrick said. “I think the general arguments that the defendants have raised against injunctive relief aren’t persuasive.”

In a 2016 order, Orrick found the safety and privacy of the federation’s members outweighed the center’s First Amendment right to disclose information obtained under false pretenses, which the Ninth Circuit Court of Appeals upheld a year later.

The National Abortion Federation wants Daleiden and company barred from ever attending another abortion industry conference hosted by NAF.  Orrick issued a similar injunction last year in favor of Planned Parenthood. 

The federation’s proposed injunction also demands that Daleiden hand the recordings over to his attorneys.

NAF attorney Spencer McManus reminded Orrick that Daleiden had violated his orders in the past.

“There have been breaches of the preliminary injunction the past and we didn’t want Mr. Daleiden to have control over the tapes,” he said.

McManus said a barring order was also necessary given Daleiden’s history of acting through agents.

Representing Daleiden, attorney Peter Breen urged Orrick to allow the recordings to be part of the public record, as Daleiden’s defense attorneys will need to review them for an upcoming criminal trial. 

Limiting stewardship of the tapes to Breen, he said, would make Daleiden’s defense “unwieldy.”

He also argued that the recordings should be available to law enforcement and other government officials, who might want to use them to investigate abortion providers.

“There’s nothing inconsistent with the court saying ‘I don’t see it but others do’ and certainly the court would not  want o stand in the posture of a censor over something that has First Amendment value and public interest value,” Breen said.

He analogized the case to the ongoing fight to block videos of a landmark trial that overturned California’s ban on same-sex marriage from being made public. Orrick unsealed the tapes last summer, but the Ninth Circuit stayed his decision pending appeal.

While Orrick found proponents of the ban had no valid reason for withholding the videos, such as a fear of retaliation or harassment that might result from the release, he said Wednesday that federation staff do have legitimate security concerns.

“I think they’re different,” Orrick said. “Because of the ongoing, very passionate views of people in this arena, I think we’re in a different place.”

Orrick took the matter under submission.

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