ACLJ Files Rehearing Petition With Ninth Circuit in Major Abortion Case Against Planned Parenthood

Litigation sometimes takes years before completion. This is especially true in highly contested cases involving abortion when incorrect lower court decisions that favor the abortion industry are eventually overturned by the United States Supreme Court, sometimes multiple times in one case. For instance, the NOW v. Scheidler litigation began in the 1980s, lasted over two decades, and reached the Supreme Court three different times.

Since early 2016, the American Center for Law and Justice (ACLJ) has been representing Troy Newman, a former board member of the Center for Medical Progress (CMP), in a federal lawsuit filed by Planned Parenthood. The abortion giant sued after CMP had released videos from its undercover investigation that exposed some of Planned Parenthood’s horrendous abortion practices. The videos led to congressional investigations and congressional referrals for criminal prosecutions over the sale of aborted babies’ body parts.

From 2016 through 2019, the case worked its way through the trial court and included a nearly two-month trial in San Francisco. Evidence at trial included an abortion doctor admitting the use of specific techniques during abortion procedures to keep certain baby organs intact, and another stating that she “wanted a Lamborghini” during discussion of prices for the sale of those organs.

Despite this testimony, the trial court repeatedly instructed the jury to ignore any evidence of Planned Parenthood’s illegal and unethical acts. The court instead instructed the jury to focus only on the Defendants’ investigative techniques and methods. The jury ultimately found the Defendants liable to Planned Parenthood and returned a verdict of more than $2 million in damages, even though the truth of the videos was not challenged and Planned Parenthood did not assert a defamation claim.

The jury’s verdict and various rulings issued by the trial court are contrary to the law and the evidence. The ACLJ appealed the unjust verdict to the United States Court of Appeals for the Ninth Circuit on behalf of our client. Over the last couple of years, we have filed appellate briefs advancing our client’s claims and responding to Planned Parenthood’s arguments. Multiple friend-of-the-court briefs (amicus briefs) were filed in support of the arguments that we and the other Defendants have made. Oral argument was held in the case during the spring of this year.

This past October, a three-judge panel of the Ninth Circuit ruled in Planned Parenthood’s favor (aside from one issue). In response, we have now filed a rehearing petition requesting the court to correct its erroneous decision. As we did in our previous briefing and at oral argument, we focus on the absurd finding that the undercover investigators were part of a racketeering enterprise under the RICO statute, which was enacted to help the federal government combat organized crime families. Owing to this incorrect finding, the amount of damages awarded to Planned Parenthood was tripled. In our petition we are asking the three-judge panel to reconsider its ruling and, if not, for the full Ninth Circuit (en banc) to correct this injustice.

Just days after we filed our rehearing petition, the Ninth Circuit Court of Appeals entered an order requiring Planned Parenthood to file a response to our petition for rehearing en banc as well as to the similar petitions filed by our co-Defendants. Planned Parenthood was not required to file a response absent such an order.

Although this case has been pending for almost seven years, it is far from over. We will continue to pursue justice on behalf of our client, including eventually filing with the United States Supreme Court if necessary. We ask for your continued support as we move forward in this important case, which will set an important precedent for the future of investigations of illegal abortion practices, and other pro-life advocacy and activities.