Victory for Planned Parenthood in Video Saga

     SAN FRANCISCO (CN) – Planned Parenthood won a major victory Friday in an ongoing saga against anti-abortion activists who nearly shut it down last year after posting doctored videos online accusing the organization of selling aborted fetuses.
      The Center for Medical Progress, which recorded and published the videos in what pro-abortion rights activists are calling a “smear campaign,” sought to dismiss Planned Parenthood’s suit. The Center also separately attempted to strike 15 claims against it, which included charges of racketeering and violations of California law.
     But U.S. District Judge William Orrick tossed both motions entirely in a 56-page ruling issued Friday. Although he acknowledged that the anti-abortion activists had raised “serious arguments” regarding some of the claims, he found Planned Parenthood had adequately addressed them.
“Defendants have raised a number of arguments that may cause the claims in this case to be narrowed after discovery on summary judgment,” Orrick said in the order. “However, plaintiffs have alleged sufficient facts to plausibly state their claims at this juncture.”     
     Beth Parker, lead counsel for Planned Parenthood Affiliates of California, said she was pleased with the ruling.
     “It reinforces our thought that we have a very strong case against the Center for Medical Progress and the other anti-abortion individuals who orchestrated this smear campaign,” Parker said in an interview. “We know there is a long road ahead before trial, but this is an excellent first step.”
     Planned Parenthood sued the anti-abortion activists in January, claiming they 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 organization sells the tissue. Planned Parenthood says it donates fetal tissue for medical research with the consent of its patients and does not profit from it.
     A key bone of contention in the case is Planned Parenthood’s RICO [Racketeer Influenced and Corrupt Organizations Act] claim alleging that the activists’ conduct directly harmed its business and property.
     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 Planned Parenthood’s complaint. Its doctors began receiving death threats, necessitating tighter security to protect them and its patients.
     Planned Parenthood says the money it spent beefing up security, responding to government investigations and addressing vandalism and arson at its clinics after the videos were posted constituted an injury to its business and property as required under RICO.
     The activists argue in their motions that the racketeering claim fails because Planned Parenthood only suffered reputational harm. And at a hearing in July, Center for Medical Progress attorney Peter Breen told Judge Orrick the money Planned Parenthood spent responding to its injuries wasn’t attributable to activists but instead to third parties.
     Orrick disagreed, ruling Friday that the increased expenses Planned Parenthood incurred after the videos were published constitute a direct relationship between the activists’ conduct and the RICO injuries it alleged.
     And although Orrick recognized that some of Planned Parenthood’s injuries, such as having its website hacked, were caused by third parties, he affirmed that injuries like its increased security costs “are much more directly tied to defendants’ conduct and do not raise the problem of intervening actions of third parties.”
     Breen did not return a request for comment on the judge’s ruling Friday.
     The Center’s activists fared no better on their motion to strike Planned Parenthood’s state anti-SLAPP claim.
     SLAPP stands for “strategic lawsuit against public participation,” and anti-SLAPP laws are meant to curtail frivolous or malicious lawsuits that have the potential to chill free speech.
     The Center’s activists turned the argument around, contending the anti-SLAPP claims denied them their free speech rights. But despite their insistence that their activity as “investigative journalists” is protected under the First Amendment, Orrick said Planned Parenthood would likely succeed on the claim and that the activists hadn’t presented any evidence to show otherwise.
     Planned Parenthood also says the defendants sought to entrap its doctors when it secretly recorded undercover conversations with them rather than conduct legitimate investigations.
     At one point, Center for Medical Progress CEO and defendant David Daleiden told defendant Susan Merritt to speak with a particular doctor “now that she’s been drinking,” according to Planned Parenthood.
     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, Planned Parenthood adds. It further argues that 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.
     Parker said she is optimistic about Planned Parenthood’s chances at trial.
     “We think we’ve put together an excellent case to show this group conspired and put together a major scheme to infiltrate health centers,” she said. “We believe we’ll be able show that, and its responsibility for the tremendous amount of harm inflicted on our health providers and patients.”
     Planned Parenthood is represented by Amy Bomse, Sharon Mayo and Jee Young You of Arnold & Porter in San Francisco.
     Peter Breen is with the Thomas More Society in Chicago.

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