Abortion foe told it can’t hide material

An antiabortion group that secretly entered meetings of abortion providers must give details of the recordings and information it obtained, and where else they may have been distributed, so that a judge can decide whether to allow the group to release the material to the public, a federal appeals court ruled Wednesday.

The antiabortion group, the Center for Medical Progress, gained access to the annual meetings of the National Abortion Federation in San Francisco in 2014 and in Baltimore this year by posing as a fetal research company called Biomax Procurement Services. The abortion federation holds its meetings behind closed doors, for members and their guests, and says disclosure of attendees’ names and discussions at the sessions could subject them to harassment or violence.

The Center for Medical Progress is also the group that surreptitiously recorded discussions at Planned Parenthood offices and released heavily edited videos purporting to show discussions of selling fetal parts.

In the abortion federation case, the center says its members were acting as investigative journalists and have a constitutional right to report on the proceedings. But U.S. District Judge William Orrick of San Francisco issued a temporary restraining order July 31, barring the antiabortion group and its members from disclosing any information, and noted that they had signed promises of confidentiality before entering the meetings.

Orrick will next consider an injunction that would extend his order indefinitely. In preparation, the National Abortion Federation wants to ask Center for Medical Progress members what information they obtained and where they may have relayed it, so that a court order would effectively keep the information confidential. The center has resisted disclosure, claiming both a First Amendment right of free expression and a Fifth Amendment right against self-incrimination.

But Orrick ruled Friday that the Fifth Amendment covers only individuals and not corporations like the Center for Medical Progress. And on Wednesday, the Ninth U.S. Circuit Court of Appeals said the center must answer questions about its actions at the abortion federation meetings so that Orrick can make an informed decision on whether the information should remain sealed.

Because the center won’t say what information it has, Orrick can’t determine “whether the information the center seeks to disclose may result in potential harm to (abortion) federation members,” or even whether it was obtained at a meeting covered by promises of nondisclosure, the three-judge panel said. The judge will also be unable to weigh the antiabortion group’s claims of free speech against the confidentiality pledges, the court said.

Representatives of the antiabortion group were unavailable for comment.