There’s no question that anti-abortion activist David Daleiden surreptitiously recorded healthcare and biomedical services employees across the state of California with the intent of discrediting the healthcare provider, Planned Parenthood — something his heavily edited videos failed to do. There’s also no question that it’s against state law to record confidential conversations without the consent of all the parties involved.
But that doesn’t mean that California Atty. Gen. Xavier Becerra should have charged Daleiden and his co-conspirator, Susan Merritt, with 15 felony counts — one for each of the 14 people recorded, and a 15th for conspiracy. It's disturbingly aggressive for Becerra to apply this criminal statute to people who were trying to influence a contested issue of public policy, regardless of how sound or popular that policy may be. Planned Parenthood and biomedical company StemExpress, which was also featured in the videos, have another remedy for the harm that was done to them: They can sue Daleiden and Merritt for damages. The state doesn’t need to threaten the pair with prison time.
The videos — recorded in California and elsewhere — were published online nearly two years ago by Daleiden’s organization, the Center for Medical Progress. They caused an uproar, energizing anti-abortion activists and prompting threats against abortion providers. Officials of Planned Parenthood, whose staff members were seen on some of the recordings, denied any wrongdoing and were outraged that the tapes appeared edited to make it sound as if they were selling fetal tissue.
Daleiden describes the effort as journalism, although his methods were decidedly not those employed by respectable reporters. He and Merritt allegedly concocted fake identities and business records to dupe Planned Parenthood officials into taking the pair into their confidence, and misrepresented themselves throughout. Nevertheless, as misguided as they were, their aim was to change people’s views on important and controversial issues — abortion and fetal tissue research.
In similar cases, we have denounced moves to criminalize such behavior, especially in the case of animal welfare investigators who have gone undercover at slaughterhouses and other agricultural businesses to secretly record horrific and illegal abuses of animals. That work, too, is aimed at revealing wrongdoing and changing public policy.
That’s why the state law forbidding recording of conversations should be applied narrowly, and to clear and egregious violations of privacy where the motive is personal gain.
In this case, we don’t believe the videos revealed any wrongdoing on the part of Planned Parenthood. Nothing in the activists’ recordings proved that anyone was trafficking in fetal tissue. Nor is there any public policy that needs to be changed. A woman’s right to an abortion is well established, even if some like Daleiden continue to wish it away. And important research into the science of numerous illnesses and diseases is done with stem cells obtained from fetal tissue. The public policy in the U.S. on the use of this tissue is sound. Fetal tissue may not be sold or bought.
Still, the online posting of the edited tapes triggered more than a dozen different state investigations — all of which ultimately found Planned Parenthood not guilty of any wrongdoing — and several now concluded congressional investigations into whether fetal tissue was being sold. Even without evidence of wrongdoing, the tapes and the subsequent investigations have had an unfortunate chilling effect on the use of fetal tissue for groundbreaking scientific research.
There are avenues in civil courts for officials of Planned Parenthood and the biomedical service providers to strike back. And, in fact, Planned Parenthood has filed a lawsuit in federal court accusing Daleiden and his organization of fraud, breach of contract, and several other offenses.
But Becerra’s attempt to take this to the level of a criminal felony is misplaced here.