In Planned Parenthood fallout, each side sees the law differently

Protesters gather outside a Planned Parenthood clinic in Vista, California August 3, 2015. (Reuters)

After an anti-abortion group released surreptitiously recorded videos of Planned Parenthood personnel in discussions about providing fetal tissue for research, Texas Attorney General Ken Paxton, a pro-life Republican, pledged to "aggressively" investigate whether the women's health organization had violated the law.

California Attorney General Kamala Harris, a pro-choice Democrat, also promised an investigation, but with an entirely different focus. Her office, she said, would scrutinize the anti-abortion group that made the videos to see if it had "violated laws, including but not limited to, [California's] registration and reporting requirements."

The videos, which purport to show Planned Parenthood officials negotiating prices for aborted fetal tissue, raise a range of legal concerns. But, as with most abortion-related issues, opinion about the nature of those concerns is deeply polarized.

The Center for Medical Progress, which made the videos, sees one issue as paramount. It urges viewers to "hold Planned Parenthood accountable for their illegal sale of baby parts."

Under federal law, donated human fetal tissue may be used for research, but profiting from its sale is prohibited. Compensation for the tissue can cover only the costs of handlingit. Several states, including Texas, have similar laws.

Planned Parenthood, which provides healthcare services to millions of women at hundreds of centers nationwide, has denied any wrongdoing and said it has not profited from fetal tissue donation.

Neither CMP's attorney nor legal experts familiar with the field could identify any prosecutions that have arisen from the law, which leaves some aspects of it open to interpretation.

For instance, views could differ on what constitutes reimbursement of fetal tissue expenses, including whether payments can help support the operating overhead of a non-profit organization supplying tissue, said Henry Greely, director of the Center for Law and the Biosciences at Stanford.

"What does profit mean?" asked Greely, who noted that he donates to Planned Parenthood.

Planned Parenthood and its allies have focused on other legal concerns raised by the videos; specifically, on CMP's tactics in obtaining the footage.

The CMP videos were shot in different locales, with varying laws. Some footage was shot in states requiring only that one party in a conversation agree to being recorded, while some was produced in states requiring consent from anyone being recorded, making surreptitious filming more problematic.

In addition, CMP personnel also signed at least two confidentiality agreements with fake names in order to gain access to information.

Already, the National Abortion Federation and a tissue provider have won separate court injunctions prohibiting CMP from releasing videos involving meetings with their personnel.

In San Francisco on Monday, U.S. District Judge William Orrick cited a confidentiality agreement signed by the filmmakers in issuing one of the injunctions.

"That's the nub," Orrick said, adding that the plaintiffs also "had a reasonable expectation of privacy."

In an interview with Reuters, CMP attorney Brian Chavez-Ochoa said he does not believe CMP signed any other confidentiality agreements, and Orrick's order only applies to videos that contain NAF material.

Indeed, CMP released another video on Tuesday in which a Planned Parenthood official discusses fetal cadavers. The video was recorded in Texas, where individuals are allowed record someone else surreptitiously as long as one party to the taping agrees.

The courts have not so far required CMP to pull back any videos already published online, according to lawyers for both sides. Whether any future judge would block the release of more videos would depend on a variety of factors, including whether the recording occurred in a private setting like a home, as well as the content of the conversation.

Even in states with more lenient laws about videotaping, the issues are sometimes murky. "It's not the case that just because you have a one-party consent state, you can just tape whatever you want," said Rebecca Tushnet, a law professor at Georgetown University.

The tissue company, StemExpress, convinced a Los Angeles judge last week to stop CMP from releasing footage it clandestinely recorded during a meeting in a California restaurant.

StemExpress said its employee deliberately sat in a secluded part of the restaurant and stopped talking when the waiter approached, which shows she thought the meeting was private, according to court filings. California requires all parties to a private conversation to consent to being recorded. CMP disputes the tissue provider's description of the meeting.

Animal rights activists have used hidden cameras to advance their cause, posing as employees at commercial farms in order to record alleged abuse of livestock.

A number of states have passed laws aimed at criminalizing such actions. On Monday, however, a federal judge in Idaho struck down that state's law as a violation of the First Amendment, saying it specifically targeted speech that criticized farms.

"The effect of the statute will be to suppress speech by undercover investigators and whistleblowers concerning topics of great public importance," U.S. District Judge B. Lynn Winmill wrote.

When it comes to the Planned Parenthood videos, David Marburger, a lawyer at Baker Hostetler and an expert in media law, said: "This is clearly speech of great interest to the public."

Last Update: Wednesday, 20 May 2020 KSA 09:46 - GMT 06:46