Architect of Planned Parenthood Smear Campaign Tries to Avoid Jury Trial

David Daleiden faces prison time if a judge greenlights a jury trial based on the footage from his 2015 propaganda videos targeting Planned Parenthood.

[Photo: David Daleiden looks on nervously in a courtroom.]
David Daleiden claims to be a journalist, while prominent journalists have said the anti-choice activist did not act as a journalist in his campaign against abortion care providers. Eric Kayne / Getty Images

Raw footage from videos deceptively edited as part of a smear campaign against Planned Parenthood were played for the first time last week in open court during a preliminary hearing for anti-choice activists accused of felony invasion of privacy.

David Daleiden and Sandra Merritt are each charged with 15 counts of felony invasion of privacy after posing as workers of a fake fetal tissue procurement company called Biomax Procurement Services in 2014. The anti-choice activists accused Planned Parenthood of illegally profiting from the sale of fetal tissue in the videos released in 2015. In a related suit brought by the National Abortion Federation, U.S. District Judge William Orrick III in February 2016 concluded there was no evidence that Planned Parenthood staff had agreed to illegally sell fetal tissue for profit.

The nine-day hearing before Superior Court Judge Christopher Hite will determine whether the case goes to a jury trial. Testimony in the criminal case continues September 10-13, 16, and 17 in the San Francisco County Superior Court.

Daleiden and Merritt’s videos advanced two prime goals of the anti-choice movement: defunding Planned Parenthood and further stigmatizing abortion and medical research that uses fetal tissue. The smear campaign, released through an anti-choice front group called the Center for Medical Progress (CMP), did extensive political damage to Planned Parenthood, offering pretext for anti-choice lawmakers to use the power of government against the health-care provider.

The 2015 release of the CMP propaganda videos spurred investigations and attempts to block Medicaid funding to Planned Parenthood affiliates in states with Republican-majority legislatures. Republicans launched similar efforts in Congress, demonizing abortion care providers and attacking researchers who use fetal tissue. Planned Parenthood has since been forced out of the Title X family planning program after the Trump administration implemented anti-choice restrictions for clinics receiving Title X funds.

Daleiden declined to speak with Rewire.News. Daleiden and his lawyers are trying to show that Planned Parenthood officials engaged in criminal behavior, as charged in CMP’s heavily edited videos. A ruling in favor of Daleiden and Merritt might suggest the activists are vindicated in their claims of acting as “investigative journalists.” However, some of the nation’s foremost journalists and journalism scholars said in a 2016 court filing that Daleiden was not acting as a journalist in secretly recording Planned Parenthood officials and physicians.

Planned Parenthood representatives did not respond to a request for comment.

Planned Parenthood officials have said the organization only donates fetal tissue for medical research with the consent of patients and that Daleiden’s videos were doctored to smear the reproductive health-care provider. But it would be years of the doctored CMP videos gaining political traction before Orrick ruled they were in fact forgeries in a lawsuit brought by the National Abortion Federation.

Planned Parenthood’s reputation was damaged, according to its lawsuit before Orrick. The 2016 suit, which goes to trial September 30 in San Francisco, claims the videos cost Planned Parenthood millions in security costs following an increase in violence at its clinics that culminated in the shooting death of three people at a clinic in Colorado Springs. The shooter repeated talking points popularized by the deceptive anti-choice videos.

The violence that followed the release of the propaganda videos has not stopped Daleiden and Merritt’s attorneys from questioning the medical community on its routine practices. Last week the defense team tried to portray the process of obtaining fetal tissue as a violation of abortion patients’ rights.

In footage played in court, a Planned Parenthood physician known as Doe 9 tells Daleiden and Merritt during a business lunch that steps can be taken during an abortion to obtain intact organs for tissue donation. Brenton Ferreira, an attorney with Steve Cooley & Associates, which represents Daleiden, attempted to prove the physician had committed medical battery on her patients.

“You believe you can do that even if the patient is not notified of the switch on the consent form,” he said. “You also believe you can place the forceps wherever without changing the procedure to obtain intact tissue.”

Exasperated, Doe 9 corrected Ferreira: “We don’t tell them about where I’m going to grasp the tissue whether we’re procuring tissue or not.”

Planned Parenthood’s civil trial against Merritt, Daleiden, and CMP begins September 30 in federal court in San Francisco.