By Lauren Fink
Day one of the preliminary hearing for pro-life activist David Daleiden kicked off Tuesday morning at the San Francisco Superior Court with testimony from an abortion technician, a third-trimester abortionist, and a vice president of the National Abortion Federation, who testified she doesn’t know what a human tissue procurement company is or does.
NAF Vice President of External Affairs Melissa Fowler also testified she recognized StemExpress—a human tissue procurement lab exposed in Daleiden’s undercover videos that is now under federal investigation—as a repeat vendor of her for-profit organization. NAF is a third-party abortion trade group.
The nine-day hearing is the first time Planned Parenthood leaders and affiliates have publicly gathered and testified in court since Daleiden’s Center for Medical Progress published 11 undercover videos featuring Planned Parenthood leaders discussing—and in some videos displaying—the harvesting and selling of aborted fetal organs and tissues.
Daleiden and his colleague Sandra Merritt face 14 criminal felony counts of eavesdropping and one count of conspiracy. The case marks the first time charges of eavesdropping have ever been made in California. During this hearing the judge will determine if there is probable cause Daleiden and Merritt committed a crime, and if so, will schedule a date for trial. Separately, the hearing for the civil case against Daleiden and Merritt will be held Sept. 30.
What Happened on Day One
Most of day one was devoted to examining Fowler, the prosecuting attorney general’s primary witness. In it, the AG focused almost entirely on the security and application process for NAF trade shows. Daleiden attended trade shows in disguise and secretly recorded conversations with Planned Parenthood employees.
Fowler admitted no responsibility for NAF security or trade show management, but refused to acknowledge video recording was never mentioned in the Rules and Regulations presented to exhibitors at the time of application. She also testified that pro-life activists are violent.
Fowler testified she met with the attorney general’s office in April to discuss questions the prosecutor would ask in the preliminary hearing, and that she was being paid as an employee of NAF to attend and testify, including travel expenses.
After Fowler, Doe 7 took the stand, a non-physician who performed surgical abortions for Planned Parenthood Northern California. She testified she regularly provided fetal tissue from the abortions she did and heard of money exchanges with StemExpress. When presented video evidence of her conversation with Daleiden, Doe 7 testified that numerous third parties could overhear the conversation, an important point of debate in the charge of eavesdropping.
In the final minutes of Tuesday’s hearing, Doe 3, a third-trimester abortionist, took the stand, at which time the AG’s office played a nearly 20-minute, never-before-released undercover video of a conversation between her and Daleiden, described by some in the courtroom as “shocking.”
Presidential Candidate Defends Human Organ Trafficking
“Planned Parenthood abortion providers appeared under oath in court today and admitted supplying the body parts of children in the womb to for-profit brokers like StemExpress,” Daleiden said Tuesday. “Meanwhile, the vice president of the National Abortion Federation denied any knowledge of the gruesome trafficking of fetal body parts, despite hosting StemExpress as a major vendor at the trade shows. The first day of testimony confirmed what we have been saying all along: this is a biased attack on First Amendment civil rights and a political prosecution to shield Planned Parenthood from accountability for their crimes against women and children.”
Daleiden says U.S. senator and presidential candidate Kamala Harris, who was California’s attorney general when he was charged, used her law enforcement and political power to destroy him. He says Harris’s office ordered a raid on his apartment, during which 11 agents tore through his belongings and took expensive camera and video equipment. Daleiden on Monday in a tweet called the charges “bogus” and an “attack on free speech to punish dissenting thought.”
Daleiden also notes that although it’s been four years since his undercover videos revealed what the abortion industry does with the human remains it generates, the federal government has not canceled contracts and grants for work that uses body parts obtained from deceased human children.
“It’s unconscionable for the Health and Human Services department of a pro-life administration to be every month basically setting these abortion quotas, having a number of orders of fresh fetal body parts, these are their own words in their own contracts, that they’re ordering and expecting to receive from abortion clinics every month for taxpayer-funded experimentation,” Daleiden said in January. “They spend over $100 million each year in taxpayer money [on this], and that number has increased in the past two years, it hasn’t gone down.”
Whistleblowing Needed, But Also May Not Be Protected
Daleiden compares his undercover work to the Project Dakota Flyer, a sting operation by Fish and Wildlife Services that unveiled a black market for eagle feathers and body parts leading to a Department of Justice investigation of 15 defendants.
“You would think harvesting, trafficking, and selling human body parts was just as much of a concern as the harvesting, trafficking, and selling of bald eagle body parts,” Daleiden said in January.
Legal minds warn against pro-lifers believing Daleiden will be cleared of charges because he was acting as a citizen journalist.
“Generally speaking, journalists have to follow the law in investigating their stories,” wrote Eugene Volokh, a University of California at Los Angeles law professor, in a Wall Street Journal blog discussion on the case. “If the law bans using false documents or offering to buy fetal tissue or recording conversations without all parties’ consent, journalists are bound by that no less than anyone else.”
In the same discussion, Harvard constitutional scholar Noah Feldman warns, “Daleiden’s amateur activism may or may not have crossed ethical lines. But if he crossed legal lines, he can legitimately be prosecuted.”
The Los Angeles Times published an editorial on March 30, 2017 criticizing Harris’s successor Attorney General Xavier Becerra, who took over the case: “It’s disturbingly aggressive for Becerra to apply this criminal statute to people who were trying to influence a contested issue of public policy, regardless of how sound or popular that policy may be,” read the March 30 editorial.
- July 14, 2015: First undercover video shows Planned Parenthood doctor bargaining over baby parts.
- August 21, 2015: A circuit judge reverses a previous court order that prohibited CMP from releasing videos featuring any StemExpress employees recorded May 22, 2015.
- July 24-October 28, 2015: Second through 11th undercover videos released.
- September 15, 2015: Daleiden’s legal team files a Mandamus petition to the U.S. Court of Appeals for the Ninth Circuit to overturn a district court ruling that would force them to defend against meritless claims brought by the National Abortion Federation. However, the Ninth Circuit ruled against the Mandamus. Therefore, the defense must produce discovery—an extremely time-consuming and expensive process to defend against NAF’s claims.
- October 2015: Despite being challenged, a federal court rules CMP can send all released and unreleased undercover videos to Congress.
- January 14, 2016: Planned Parenthood files a second “RICO” lawsuit against Daleiden.
- January 25, 2016: Daleiden and his fellow undercover investigator Susan Merritt are indicted by a Texas grand jury for alleged criminal activities. Thomas More Society is working to defend Daleiden.
- March 28, 2017: The attorney general of California charges Daleiden and Merritt with 15 felony charges under California law. Fourteen of the charges are based on claims the pair recorded alleged “confidential communications” between strangers at public conferences and at public restaurants. The 15th charge alleges Daleiden and Merritt conspired together to commit the crime of recording confidential communications.
- January 2018: FBI and DOJ open investigation of some of the largest Planned Parenthood affiliates, including StemExpress, as a result of the undercover videos.
- April 6, 2018: The Supreme Court upholds a gag order preventing Daleiden from publishing more investigative videos he recorded while undercover, sending the case back to trial court, where it had been stayed since Daleiden appealed the gag order two years ago, allowing the National Abortion Federation a sigh of relief: “We are grateful.”
- April 19, 2019: California Supreme Court issues a stay, delaying the preliminary hearing in felony trial for Daleiden in which his attorneys would present a defense including unseen undercover videos of abortion providers.
- June 8-11, 2019: Ninth Circuit Court of Appeals rules to let stand the $195,000 fine ordered by a federal judge to cover the legal fees and costs of the National Abortion Federation to cover legal fees and costs for added security due to the videos’ release; Daleiden starts a GoFundMe page.
- July 19, 2019: Federal judge rules to trim down damages alleged in Planned Parenthood’s lawsuit from about $20 million to less than $100,000.
- September 3, 2019: Preliminary hearing begins.
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