Pro-life activist David Daleiden is in the middle of a federal civil jury trial facing charges brought by the nation’s largest abortion provider, Planned Parenthood, over his undercover videos, initially released in 2015, which allegedly show the organization trafficking in unborn baby body parts.
The civil trial almost immediately followed a nine-day preliminary hearing in the criminal case last month over 15 felony charges of invasion of privacy brought by California Attorney General Xavier Becerra.
Over the course of the civil trial this month, gruesome details about the harvesting and sale of unborn baby body parts have been highlighted, despite attempts by the judge to avoid discussion of the content of the undercover videos.
Planned Parenthood’s lawsuit alleges that Daleiden and his associates at the Center for Medical Progress (CMP), Troy Newman, Albin Rhomberg and Gerardo Adrian Lopez, violated the Racketeer Influenced and Corrupt Organization Act (RICO Act), engaged in wire fraud, mail fraud, invasion of privacy, illegal secret recording and trespassing. Planned Parenthood is seeking nearly $600,000 in damages resulting from increased security costs that its representatives argued are necessary because of an increase in violence against abortion providers following the undercover videos.
The defendants are being represented by various pro-life attorneys and legal groups, including the Thomas More Society and the Life Legal Defense Foundation.
Daleiden’s attorneys with the Thomas More Society argue that he was acting as an undercover journalist attempting to expose trafficking in unborn baby body parts by Planned Parenthood. California law allows the recording of confidential conversations without consent if it is done to obtain evidence of a violent felony.
Daleiden’s legal team is also arguing that Daleiden and the Center for Medical Progress should not have to pay for security upgrades on the part of Planned Parenthood, as they did not cause the problems that necessitated security upgrades.
Allegations of Bias
Peter Breen, vice president and senior counsel at the Thomas More Society, told the Register about some of the difficulties Daleiden is facing in the civil case.
Breen said that the judge in the case, U.S. district court Judge William Orrick, “tied our hands on the evidence presentation,” pointing out that he is excluding the testimony of medical experts like Dr. Forrest Smith, a practicing abortionist and OB-GYN, who testified in the criminal preliminary hearing last month that Planned Parenthood appeared to be modifying abortion techniques to result in live births and more intact organs.
“The judge is still going to allow a lawyer to get on the stand and talk about all sorts of violence against abortion providers over the last 40 years,” he pointed out. “We think that’s outrageous; we fought that ruling. We’re going to continue to challenge it, but, again, that’s where we are. In the civil case we are much more limited in our evidence presentation than we were in the criminal case.”
Thomas Brejcha, the president and founder of the Thomas More Society, also told the Register that Orrick has excluded a great deal of evidence in the case, including the undercover videos, because “the opposition objected that it would be prejudicial to Planned Parenthood and the other plaintiffs. The prejudice would outweigh any probative value.”
“It really is an anomaly,” he emphasized. “The anomaly is that while the other side testifies to the impact of the videos on Planned Parenthood — that they were scary, they were upset — our jury wasn’t allowed to see them.”
Daleiden’s attorneys made an unsuccessful attempt to have Orrick removed from the case, based on his wife’s apparent support for Planned Parenthood on social media and the fact that Orrick is a founder and officer of the Good Samaritan Family Resource Center (GSFRC), an organization that partners with Planned Parenthood and had a Planned Parenthood business incorporated on its premises while Orrick served as secretary and counsel to the organization.
“Despite all these adverse rulings — the judge is no fan of ours; we moved to have him recused earlier — we are achieving breakthroughs that are having an impact on the jury,” Brejcha said. “While it’s an uphill struggle, we’re not without hope that some degree of justice might be accomplished here.”
Hearts and Scalps
Over the course of both Daleiden’s civil trial, which will continue at least through mid-November, and the preliminary hearings in the criminal case, which wrapped up last month, some gruesome testimony surfaced regarding the alleged practices of abortion providers involved in harvesting fetal body parts for research.
Last week, Life Legal Defense attorney Katie Short cross-examined Albin Rhomberg, a pro-life activist who is being sued by Planned Parenthood for his role as then-CMP board treasurer. In the course of discussing his research into alleged trafficking in fetal tissue, Rhomberg referenced the use of the scalps of aborted babies in one study.
“We realized that one, for example, was a research being done on baldness,” he testified. “That could be just vanity. On the other hand, we do know that patients receiving therapy — there’s many reasons for baldness. And they were attempting — they were using fetal — they were scalping the babies and taking their scalps and grafting them on to immune-suppressed mice, and then using various pharmaceuticals on these humanized mice to test the effect upon preventing or, I suppose you might say, treating baldness.”
Brejcha told the Register that Daleiden consulted with Theresa Deisher, a stem-cell researcher with a Ph.D. from Stanford University, who told Daleiden, regarding a 2012 study that used hearts supplied by the fetal-tissue procurement company StemExpress, that, “in fact, to harvest hearts the hearts had to be beating or they were without scientific research value and they had to be moved quickly to a Langendorff perfusion machine.”
“He [Daleiden] really felt that there was ample evidence that not only did physicians change the abortion methods to enhance the quality of the fetal organs, bodily organs, but Deisher’s testimony indicates that, indeed, they had to be born alive, some of them, at least for heart organs,” Brejcha emphasized.
“I handled aborted fetal tissue at two Planned Parenthood clinics during this undercover project, and I handled the actual individual body parts and organs,” Daleiden testified last Monday.
Brejcha reflected that abortion advocates often use the word “stigma.” “Stigma is a big concern of the abortion lobby,” he said. “That’s what they’re really afraid of. They don’t want these details about the barbarity and grisliness of what they do becoming openly discussed and recognized, because it’ll just turn your stomach.”
The gruesome testimonies regarding the harvesting of fetal body parts during the civil trial caused Phelim McAleer, author and producer of the Gosnell movie, to recall his past coverage of the case of abortionist Kermit Gosnell. Gosnell was convicted in May 2013 of the first-degree murder of three infants born alive after attempted abortions and the involuntary manslaughter of one woman during an abortion.
“It’s kind of Gosnell 2.0, in some ways,” McAleer told the Register in a phone interview shortly after attending the trial in San Francisco.
He noted that the media was largely ignoring the trial, as they did with Gosnell.
“At the beginning of the trial somebody mentioned the name Gosnell and the judge almost had a heart attack and shut them down,” he said. “Gosnell was convicted: There was a trial; there was evidence. It’s not like he’s some tabloid person who there’s no evidence about — there’s evidence coming out of everywhere about Gosnell. I don’t see why he couldn’t be used as an example, or as a reason for Daleiden to do the work he did.”
McAleer was physically pushed last week as he was attempting to question Planned Parenthood medical director Dr. Mary Gatter, featured in the undercover videos joking that she wanted a Lamborghini from fetal-tissue sales.
“Did you ever get your Lamborghini?” he asked Gatter as she left the courthouse. “In the tape you said you asked surgeons to change the method of abortion. Is that legal or ethical?” He was then pushed by someone who appeared to be a security guard for Gatter.
“They’re so used to journalists asking them softball questions, or when it’s really difficult, asking no questions, so I decided to ask every Planned Parenthood witness hard questions,” he told the Register about the incident. “They don’t like it, and they get really, really violent because they’re so unused to being asked difficult questions.”
Alexandra Snyder, executive director at the Life Legal Defense Foundation, told the Register that, in recent testimony, abortionists have revealed that Planned Parenthood’s security measures were not prompted by any real danger caused by the undercover videos.
Life Legal Defense’s Short cross-examined Gatter over her claim that she felt violated, and “that’s why she needed security or that’s why Planned Parenthood thought she needed security,” Snyder said.
However, Short “was able to get her [Gatter] to admit that by feeling violated it meant that she was uncomfortable with the way she was portrayed in that video; and she admitted that, yes, that’s what she meant — not that she was fearful, but that she didn’t like how she was portrayed; it ‘made her look bad,’ in her words.”
Snyder emphasized that the case “is all about the security upgrades and the damage that supposedly Planned Parenthood abortionists incur as a result of feeling threatened by the videos, and so we’re showing that they did not feel threatened. They are used to this; they’re out in the public.”
Jennifer Castle, Planned Parenthood’s director of clinical services, and Jen Gupta, the group’s director of medical standards, also were cross-examined by Short this week. Castle and Gupta acknowledged that they never received any threats and did not incur any expenses due to increased security because of the videos.
Brejcha emphasized that Castle had written an article titled, “Why I’m Proud to Provide Safe and Legal Abortions: Abortion Providers Are Heroes.” Planned Parenthood is “claiming that privacy is paramount,” he noted, but “she’s out there publishing how proud she is to do what she does. It’s hypocritical.”
A key video that was permitted in the trial this week was “Body Parts for Sale,” produced by 20/20 and hosted by Chris Wallace. It aired on March 9, 2000, and featured a 20/20 producer posing as a potential investor and secretly recording an abortionist talking about the massive profits he made from the sale of body parts he harvested from the bodies of babies he aborted.
Daleiden testified that he first saw this video in 2010 and was inspired by it to found the Center for Medical Progress and begin his own undercover project investigating the illegal sale of aborted baby body parts in California.
“I think for the first time since the beginning of this trial three weeks ago the jury was able to see the potential for greed to come into play and then the absolute callousness with which people who are involved in this tissue trafficking trade” exhibit, Snyder said regarding the video.
Brejcha pointed out that the video showed Gloria Feldt, the president of Planned Parenthood at the time, “on camera saying that, well, these laws [about tissue trafficking] are on the books, and this is terrible; they should be enforced.”
Brejcha said that the video “really got” to Daleiden when he saw it as a young boy, and “he couldn’t understand why there was never any follow-up” investigation. “There was a congressional hearing; but apart from that, nobody in the media, no government action — nothing — and that’s why he started his work.”
An Uphill Battle
Daleiden’s attorneys face many obstacles, as they are in the midst of the civil trial at the same time as they are waiting to hear, following last month’s criminal preliminary hearing, whether Daleiden and his associate Sandra Merritt will have a trial before a jury on any or all of the 15 felony charges brought by the California attorney general.
Breen noted that “they’re putting incredible burdens on David and our legal team that no one else would ever have to bear. Forcing a group of lawyers to go into a six-week civil jury trial right on the heels of a criminal preliminary hearing is unheard of. We opposed it, we tried to keep the proceedings separate and stayed, but that was rejected.”
He also noted that Planned Parenthood has “one of the biggest law firms in the country representing them, and they’re doing everything possible to stick it to us; but we’ve been giving it as good as we’re getting it, at this point.”
“We are going to be able to be victorious and vindicate the truth of what the Center for Medical Progress videos show, and we’re going to be able to vindicate the rightness and correctness of what David and his team did,” Breen concluded. “It’s the most consequential undercover investigation of the abortion industry in history.”
Staff writer Lauretta Brown writes from Washington, D.C.