Planned Parenthood Video Maker Appeals Gag Order to U.S. Supreme Court

HOUSTON, TX - FEBRUARY 04: David Daleiden, a defendant in an indictment stemming from a Planned Parenthood video he helped produce, speaks to the media after appearing in court at the Harris County Courthouse on February 4, 2016 in Houston, Texas. Daleiden is facing an indictment on a misdemeanor count …
Eric Kayne/Getty Images

The undercover journalist who released the scandalous series of videos exposing Planned Parenthood’s alleged illegal profiteering from the sale of the body parts of aborted babies has appealed a federal judge’s gag order to the U.S. Supreme Court.

David Daleiden and the Center for Medical Progress (CMP) filed their petition for a writ of certiorari at the U.S. Supreme Court, claiming the gag order – issued by San Francisco Judge William Orrick III – is unconstitutional. The order prohibited publication of undercover video footage of high-level Planned Parenthood officials during the National Abortion Federation’s (NAF) annual trade shows.

The appeal comes days after CMP released a new video in which a Planned Parenthood medical director appears to be informing Daleiden and his colleague, posing as biomedical company buyers, that abortionists skirt the federal partial birth abortion law through a “checkbox” on a form.

CMP states in a press release:

According to [Dr. Suzie] Prabhakaran, Planned Parenthood abortion doctors can certify compliance with the law by using a feticide like digoxin to kill the fetus before the abortion, or they can simply “document” their “intent” to do a “dismemberment” abortion where the fetus is pulled apart with forceps rather than extracted intact.

Prabhakaran says in the video, “I’m not doing digoxin, and we’re just going to document and there’s never been a problem.”

“So some people train to just document that like, you know to comply with the Partial-Birth Abortion Ban, you basically have to say, ‘I intend to utilize dismemberment techniques for this procedure,’” Prabhakaran explains. “So every time you do a procedure, that’s how you document. So, like, there’s like a checkbox.”

In the first video released by CMP, Planned Parenthood’s chief medical officer Dr. Deborah Nucatola says about the Partial-Birth Abortion Ban:

The Federal [Partial-Birth] Abortion Ban is a law, and laws are up to interpretation. So there are some people who interpret it as it’s intent. So if I say on Day 1 I do not intend to do this, what ultimately happens doesn’t matter.

In their petition to the Supreme Court, Daleiden and CMP argue that no federal court has upheld a gag order like Orrick’s, one that suppresses free speech that is vital to the public’s interest:

At issue in this appeal is a gag order, a preliminary injunction imposed specifically for the purpose of hiding information from the public, precisely because the information is of such significant public interest and concern—the procurement and sale of aborted fetal body parts.

Daleiden said in a statement:

Judge Orrick’s gag order, issued at the behest of Planned Parenthood and the National Abortion Federation, is an unprecedented attack on the First Amendment by a clearly biased federal judge. Judge Orrick even wants to press his gag order in the California Attorney General’s bogus criminal case against me—though he, NAF, and Planned Parenthood insist the gag order only applies to my defense, and not to the Attorney General’s sham prosecution.

In June, Daleiden and CMP filed a motion – which is still pending – that requests the disqualification of Orrick “on the grounds that there is evidence of bias in favor of the plaintiff and prejudice against the defendants.”

In an interview with Breitbart News, one of Daleiden’s attorneys, Peter Breen, special counsel with the Thomas More Society, explained:

Some of the evidence we’ve brought forward is that as recently as September of 2015 – several weeks after entering the temporary restraining order in the NAF case – we’ve learned that the Good Samaritan Family Resource Center, which is interlinked with a Planned Parenthood affiliate that is a member of the National Abortion Federation – that they are holding out Judge Orrick as an emeritus member of their board.

The National Abortion Federation – their allegations were there would be harm to their members – and, so, you’ve got an entity that is in partnership with a member that actually hosts one of the NAF members. Now you’ve got the judge being held out by that entity as part of the organization, as connected to it.

The motion also contained an affidavit by Daleiden noting information about Orrick’s wife, who posted public comments, along with a photo of her and her husband, that indicate support for Planned Parenthood and criticism of Daleiden and CMP.

In addition, according to the document containing Orrick’s responses to the Questionnaire for Judicial Nominees, in June of 2009, Orrick introduced now-Sen. Kamala Harris (D-CA) at a fundraiser for her campaign at the time for her bid for the post of California’s attorney general. In addition, he states, “I raised money and sponsored an event for the campaign of Kamala Harris for Attorney General in 2009, before I joined the Department of Justice.”

Democrat Harris was elected California attorney general in 2010, barely defeating then-Los Angeles district attorney Steven Cooley, a Republican, whose firm, Steven Cooley & Associates (SCA), now defends Daleiden and his colleague, Sandra Merritt, who had been charged with 15 felony counts under California’s law protecting “confidential” conversations.

In September 2016, emails obtained by the Washington Times showed that then-California AG and U.S. Senate candidate Harris’s office collaborated with Planned Parenthood to produce legislation that specifically targeted Daleiden.

The emails, according to the Times, were accessed through a public records request, and revealed conversations between officials of Harris’s office and Planned Parenthood regarding legislation that criminalizes undercover journalists for publishing and distributing recordings of private communications with abortion providers.

In July, the NAF filed a lawsuit to prohibit Daleiden and CMP from releasing video footage from its 2014 and 2015 annual conventions, based on the premise the release could endanger their abortionists. Orrick granted an “emergency” gag order barring release of the tapes. He then entered a preliminary injunction that extended the gag order indefinitely, and the Ninth Circuit Court of Appeals in San Francisco affirmed it.

Tom Brejcha, President and Chief Counsel of the Thomas More Society, said in a statement that the Supreme Court appeal “is an historic effort to protect the classical ban against prior restraints of free speech about an issue of paramount public importance, as our Congress is even now debating whether the abortion industry ought to be subsidized by millions of dollars in tax revenues.”

He continues:

Our First Amendment represents a foundational premise of our democracy that citizens ought to be trusted to make up their own mind about such basic issues of public policy. The notion that government needs to filter the truth and wield the censor’s scissors is anathema here in our United States, and we trust that the Supreme Court will not abide this unprecedented suppression of truth and will soon let it be shared openly with all of our fellow citizens. First Amendment does not permit anybody to be insulated against the scrutiny of law enforcement or freed from political embarrassment.

Brejcha further explained: “This lawsuit was brought against Mr. Daleiden by National Abortion Federation, the abortion industry’s trade group, because he dared to expose the truth about their members’ profiting from an illegal trade in the remains of human beings. But what is ultimately at stake here is whether those who ‘blow the whistle’ on illegal or inhumane misbehavior in any industry may be silenced and even punished for telling the truth to the public at large and to those charged with enforcing criminal and regulatory bans on nefarious practices.”


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