Abortion foes appeal $2 mln verdict over secret Planned Parenthood videos

A imaging table inside Missouri's sole abortion clinic in St. Louis
A imaging table inside the Reproductive Health Services of Planned Parenthood St. Louis Region, Missouri's sole abortion clinic, in St. Louis, Missouri, U.S. May 28, 2019. REUTERS/Lawrence Bryant
  • Activists say fake IDs, secret recording protected by 1st Amendment
  • Planned Parenthood says damages necessary to prevent future harm

(Reuters) - Lawyers for anti-abortion activists on Thursday urged a federal appeals court to throw out a $2 million verdict by a jury that found they broke the law by secretly recording Planned Parenthood employees, arguing that what they did was protected free speech.

"Defendants did nothing that 20/20, Dateline or animal activists haven't done," Heather Hacker of Hacker Stephens, a lawyer for the anti-abortion group Center for Medical Progress and its founder David Daleiden, told a panel of the 9th U.S. Circuit Court of Appeals.

William Perdue of Arnold & Porter Kaye Scholer, representing Planned Parenthood, said Daleiden and other activists engaged in a criminal conspiracy by creating a fake company and fake identities to infiltrate Planned Parenthood conferences and secretly film employees.

The Center for Medical Progress released videos in 2015 purporting to show Planned Parenthood employees illegally offering to sell fetal tissue, sparking outrage from abortion foes. The organization has denied the accusation, and congressional and state investigations have not substantiated it.

"This case is not about abortion, it's not about fetal tissue donation and it's not about free speech either. It's about a long-running conspiracy to ... 'destroy the evil Planned Parenthood empire,'" Perdue said, quoting an email from one of the activists sued in the case.

Chief Judge Mary Murguia, Circuit Judge Ronald Gould and visiting District Judge Nancy Freudenthal of Wyoming did not clearly indicate how they would rule.

Planned Parenthood sued Daleiden, the California-based Center for Medical Progress and others in 2016 in San Francisco federal court, accusing them of conspiracy and wiretapping violations under federal law, as well as claims under California law for fraudulently gaining access to the conferences.

The defendants argued that their activities were protected free speech under the 1st Amendment of the Constitution and asked U.S. District Judge William Orrick to dismiss much of the case. The judge rebuffed that bid, as did the 9th Circuit and U.S. Supreme Court, allowing the case to go to trial.

In 2019, a jury ordered the defendants to pay $2 million in damages. Orrick later awarded Planned Parenthood more than $13 million in fees, which are the subject of a separate appeal. On appealing the verdict, the activists renewed their free speech defense, and further argued that the jury had improperly awarded money damages when Planned Parenthood had not suffered any monetary harm.

Perdue, however, said the money was necessary to pay for security measures to prevent future infiltrations by the defendants.

Daleiden and another activist are also facing criminal charges in California over the videos.

The case is Planned Parenthood Federation v. Center for Medical Progress, 9th U.S. Circuit Court of Appeals, No. 20-16068.

For Daleiden and the Center for Medical Progress: Heather Hacker of Hacker Stephens

For Planned Parenthood: William Perdue of Arnold & Porter Kaye Scholer

Read more:

Supreme Court rebuffs anti-abortion activists in Planned Parenthood suit

Activists who filmed Planned Parenthood workers charged in California

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.