Abortion foes lose again on recordings

Antiabortion activists who posed as researchers and secretly recorded conversations at meetings of abortion providers absorbed their second legal setback in two days Wednesday when a federal appeals court said they had obtained confidential information by fraud and must not release it to the public.

In a 2-1 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco upheld a federal judge’s injunction that barred a group called the Center for Medical Progress from disclosing recordings or any other information its members obtained by infiltrating the annual meetings of the National Abortion Federation in San Francisco in 2014 and in Baltimore in 2015.

Before the injunction, the group had posted videos of some of the conversations on its website. The court said one of the secretly recorded subjects was affiliated with a Planned Parenthood clinic in Colorado Springs that was attacked in November 2015 by an antiabortion gunman. Three people were killed.

The ruling came a day after California Attorney General Xavier Becerra filed felony charges against David Daleiden, leader of the Center for Medical Progress, and an employee, Sandra Merritt. Becerra accused them of violating state laws against recording private conversations without consent at the National Abortion Federation meeting in San Francisco and later meetings with physicians and Planned Parenthood representatives.

Vicki Saporta, president of the National Abortion Federation, said Wednesday’s court ruling would help to protect the federation’s members.

“The smear campaign launched by the defendants has put abortion providers at risk,” she said.

The Center for Medical Progress called the ruling “an attack on the First Amendment.” The group said the secretly recorded videos were “information the public is entitled to” and would reveal wrongdoing that would help in the defense of Daleiden and Merritt on criminal charges.

Daleiden and his colleagues gained access to the abortion providers’ conventions by posing as a fetalresearch company called BioMax Procurement Services, using false names and driver’s licenses. They used the same methods to record conversations with Planned Parenthood representatives, resulting in edited videos that purported to show Planned Parenthood discussing the illegal sale of fetal parts.

Before entering the conventions, the BioMax representatives signed confidentiality agreements prohibiting the recording of any meetings or discussions or the disclosure of any information obtained at the sessions.

In arguing for release of the videos, Daleiden and his colleagues said they had been acting as investigative journalists and had uncovered criminal conduct. But U.S. District Judge William Orrick III of San Francisco found no evidence of lawbreaking by convention participants and said the BioMax entrants had violated their agreements.

The appeals court majority upheld Orrick’s ruling Wednesday.

“One may not obtain information through fraud, promise to keep that information confidential, and then breach that promise in the name of the public interest,” said Judges Andrew Hurwitz and Donald Molloy, a federal judge from Montana temporarily assigned to the appeals court.

In dissent, Judge Consuelo Callahan said the court should allow the videos to be released to law enforcement agencies for possible investigations of crimes by participants at the conventions.

“Our system of law and order depends on citizens being allowed to bring whatever information they have, however acquired, to the attention of law enforcement,” Callahan said.