May 26, 2022

US State AGs wade into abortion video fight

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Federal District Judge William Orrick III, photographed in his courtroom and chambers in San Francisco. Photo S. Todd Rogers 12/03/2013 063-2013

Federal District Judge William Orrick III, photographed in his courtroom and chambers in San Francisco.
Photo S. Todd Rogers

By Ross Todd, From The Recorder

SAN FRANCISCO — U.S. District Judge William Orrick III found himself in the crossfire of competing interests Tuesday morning when asked to interpret his own temporary restraining order blocking an anti-abortion group from releasing hidden-camera videos.

A handful of state attorneys general have asked the defendants in the case to hand over videos to investigators who are looking into whether Planned Parenthood illegally profited from the supply of fetal tissue to researchers. Meanwhile, California Attorney General Kamala Harris has said her office will review whether the Center for Medical Progress and two individuals named as defendants violated state law when recording the videos at the National Abortion Federation’s annual conferences in 2014 and 2015. Further clouding the situation, defendants have invoked their Fifth Amendment right against self-incrimination.

Orrick said Tuesday that he found it “a little interesting” that the defense was raising the Fifth Amendment in his courtroom, while willingly handing over information to certain law enforcement agencies. “It doesn’t add up, but maybe the law is that way,” Orrick said. “It seems odd to me.”

Saying he wanted to “tread carefully” because of the competing law enforcement and privacy interests in the case, Orrick held off on clarifying just what defendants could hand over to investigators. He asked both sides for further briefing on the Fifth Amendment issues.

Lawyers from Morrison & Foerster sued the Center for Medical Progress in July on behalf of the National Abortion Federation (NAF). The suit accused the anti-abortion group of devising an elaborate conspiracy to infiltrate its network to secretly film Planned Parenthood executives discussing supplying fetal tissue to medical research facilities. In August, Orrick granted NAF’s request to bar further release of video gathered at the conferences. Orrick found that NAF was likely to succeed on its claims that the defendants violated nondisclosure agreements attendees signed upon entering the conferences.

At Tuesday’s hearing, the defendants’ lawyer D. John Sauer said the contracts at question in the case likely would be found “facially unenforceable” under California state law if they forced his clients to warn a party suspected of wrongdoing before handing over material to law enforcement. Arguing on behalf of NAF, MoFo’s Derek Foran said that his client hadn’t sought a blanket ban on the defendants handing over material to investigators. “All we are looking to do is to have some sort of process in place” to know what’s being handed over, Foran said.

Arizona Assistant Attorney General Maria Syms, who filed an amicus brief on behalf of Arizona AG Mark Brnovich as well as attorneys general in Alabama, Michigan and Oklahoma, said during the hearing that she was happy to hear the judge say that he would respect the interest of law enforcement.

As for Syms’ point about the states seeking justice, Orrick said, “that’s also what we’re doing in this case.”

IMAGE: U.S. District Judge William Orrick III, Northern District of California.

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