Witness Against Anti-Choice Activists Says She Was Harassed After Testifying

The witness had been surreptitiously filmed in 2015 by anti-choice activists David Daleiden and Sandra Merritt as part of a smear campaign against abortion providers and fetal tissue researchers.

[Photo: A witness speaks during a trial.]
Doe 12 first testified against Daleiden and Merritt on September 5 during a preliminary hearing in San Francisco Superior Court meant to determine whether the case should proceed to a jury trial. Shutterstock

A witness who testified against the anti-choice activists behind deceptively edited videos smearing abortion providers says she was followed and harassed by an unidentified driver filming on her phone after leaving the courtroom last week.

The witness, known as Doe 12, the head of a Northern California-based fetal tissue procurement company, had been surreptitiously filmed in 2015 by David Daleiden and Sandra Merritt, who posed as workers of a fake fetal tissue procurement company. Through an anti-choice front group called the Center for Medical Progress (CMP), Daleiden and Merritt released heavily edited videos in 2015 to falsely accuse Planned Parenthood of illegally profiting from the sale of fetal tissue. The pair now face 15 charges of felony invasion of privacy and could go to prison.

Doe 12 first testified against Daleiden and Merritt on September 5 during a preliminary hearing in San Francisco Superior Court meant to determine whether the case should proceed to a jury trial.

With Doe 12 scheduled to resume her testimony Wednesday morning, California prosecutors requested a gag order late Tuesday prohibiting the defense from discussing witness testimony with the public. The motion was denied Wednesday in court, where Daleiden also narrowly dodged a criminal restraining order on behalf of Doe 12.

The motion alleged Doe 12 was targeted by an unidentified person in retaliation for her testimony in a road rage incident after she left the courthouse on September 5. The state claims the driver may have been incited by tweets posted by the Center for Medical Progress and by false information about her testimony that defense attorneys provided to an anti-choice website called LifeSite News, the state claims.

“There is this fringe element out there that will accept anything they read,” California Deputy Attorney General Johnette Jauron argued in court Wednesday, adding that Doe 12 now fears for her life.

“To the witness it is terrifying,” Jauron said.

Superior Court Judge Christopher Hite denied the state’s motion for a gag order, citing First Amendment concerns and insufficient evidence linking the alleged incident with comments made by the defense.

The witness also says she received “threats and or disparaging comments” through her company’s telephone number and website after she testified last week, according to an investigative report included in the prosecution’s court filing.

Hite suggested issuing a restraining order prohibiting Daleiden from coming within close range of Doe 12 or contacting her directly or through third parties, based on inflammatory tweets CMP published during her September 5 testimony. The CMP Twitter posts, now deleted, “essentially identified the Does, if not by name then by title and organization,” according to the motion filed by prosecutors.

The CMP tweets used the kind of graphic language that was commonplace in the front group’s coordinated smear campaign against Planned Parenthood and the National Abortion Federation.

Daleiden’s attorneys denounced a restraining order as “extremely insulting.”

His attorney Brentford Ferreira argued they are typically issued for people who abuse their children or spouse.

Daleiden declined to comment Wednesday.

Horatio Mihet of Liberty Counsel, the conservative legal group representing Merritt, argued that LifeSite News published its article on September 6, a day after Doe 12’s testimony and the alleged road rage incident, and therefore could not have influenced the assailant. Mihet said the scenario alleged by Doe 12 meant the perpetrator would have had to have been in the courtroom during Doe 12’s testimony.

To avoid a similar incident, “you would have to shut down the preliminary hearing and hold it in secret,” Mihet said.

Doe 12 claims someone pulled up next to her car on the highway after she crossed the Carquinez Bridge into Vacaville, about 55 miles north of San Francisco. She says the driver tried to swerve into her car, then cut her off and slammed the brakes while screaming and appearing to film the incident with a camera phone.

On Wednesday, lawyers representing the anti-choice activists questioned Doe 12’s credibility because she reported the incident to state prosecutors instead of calling 911.

Meanwhile, Doe 12’s attorney, Jeffrey Einsohn, requested a ban on tweets from the courtroom about the sensitive topics in his client’s second round of testimony Wednesday morning. “My client has a constitutional right to be free from harassment and intimidation and abuse,” he told the judge.

Hite demurred. “I can’t stop the general public from tweeting about the court proceedings, and you know that,” the judge said.

The fallout from the CMP videos’ 2015 release spurred investigations and attempts by GOP-held state legislatures to block funding to Planned Parenthood affiliates. Congressional Republicans also used the deceptive videos to go after Planned Parenthood, demonizing abortion care providers and attacking researchers who use fetal tissue. In February 2016, U.S. District Judge William Orrick III concluded there was no evidence that Planned Parenthood officials had illegally sold fetal tissue for profit, and Planned Parenthood has denied all allegations stemming from CMP’s videos.

Doe 12 resumed her testimony in court on Wednesday after the motion for a gag order was denied.

A representative for Planned Parenthood did not return a request for comment late Wednesday.