Defending Those Investigating the Abortion Industry

A recent federal court hearing highlighted the importance of protecting the First Amendment rights of investigative journalists – in this instance, individuals exposing illegal and unethical acts of abortion providers and fetal tissue procurement companies and researchers – as well as the public’s right to contact law enforcement to report what they believe to be evidence of criminal activity.

As you likely recall, several videos released by the Center for Medical Progress (CMP) last summer gave the American public a behind-the-scenes glimpse into the gruesome world of buying and selling the body parts of aborted babies. For example, one Planned Parenthood doctor laughed while saying, “I want a Lamborghini” after haggling over the price of specific types of fetal organs and body parts, while another admitted that abortion clinics are “happy” to “do a little better than break even” when it comes to the sale of fetal body parts if they can “do so in a way that seems reasonable.”

Under federal law, it is a felony punishable by up to ten years imprisonment “to knowingly acquire, receive, or otherwise transfer any human fetal tissue for valuable consideration if the transfer affects interstate commerce.” Obtaining enough money to talk about buying a Lamborghini (which costs $200,000 or more), or obtaining enough money to do better than break even, is evidence of illegal profit (i.e., receiving more money than the cost of transporting, preserving, storing, etc. the fetal tissue). As such, the statements, in addition to being morally abhorrent, are admissions of criminal activity, drawing the attention of Presidential candidates along with numerous legislators, state Attorneys General, and other government officials across the country.

In light of the widespread public outrage over the specter of a commercial marketplace for babies’ body parts, the United States House of Representatives formed a Special Investigative Panel to investigate fetal tissue procurement and related abortion practices. An ACLJ colleague has summarized an 88-page report that the Panel issued about its shocking findings. And recently, a California district attorney’s office filed a lawsuit against two companies, alleging that they sold “fetal body parts for a profit of more than $1.5 million.”

Ever since the first CMP video was released, Planned Parenthood and the National Abortion Federation (NAF) have waged a legal and public relations battle against CMP, attempting to silence the group and discredit its work. This includes the filing of two federal lawsuits in which the American Center for Law and Justice (ACLJ) represents a former CMP board member.

In one of those cases, a federal court has – since last July – prevented CMP from revealing what it learned during its undercover investigation of NAF meetings. A recent oral argument at the court of appeals was divided into two parts: a public session that lasted 83 minutes, during which the attorneys were not permitted to discuss the specific details of what CMP learned while attending NAF meetings, and a session that was closed to the public during which such details could be discussed.

One of the main topics of discussion during the public part of hearing was CMP’s constitutional right to speak freely upon a topic of public concern. The Supreme Court’s Pentagon Papers case was mentioned frequently; there, the Court rejected the federal government’s request to enjoin the Washington Post and the New York Times from publishing a classified study concerning the United States’ decision-making concerning Vietnam and the conflict there. The Supreme Court in that case noted that “prior restraints” – gag orders that prohibit speech before it occurs – bear “a heavy presumption” of being unconstitutional. Such orders are rarely upheld, especially when they prevent speakers from talking about matters of great concern to the public, such as illegal and unethical practices within a regulated profession.

Another subject of debate at the hearing was the right of CMP (and the public in general) to freely share information about possible criminal activities with the police or other government investigators. For over fifteen months, the injunction has prevented CMP from giving what it believes to be significant evidence of crime, and a willingness to engage in it, to law enforcement. This prompted the Attorneys General of fourteen states to file a brief explaining the bad precedent that would be set by eliminating a private individual or group’s ability to freely communicate with law enforcement regarding potential wrongdoing, and an Assistant Attorney General appeared at the hearing to further address this argument.

We are hopeful that the court of appeals will vacate the injunction and allow CMP to speak freely – with the general public and with law enforcement – about what it uncovered during the course of its investigation.

We will continue to keep you updated as these cases progress and our advocacy continues.