Facing Felony Charges, Anti-Abortion Group Cites Free Speech Protections

The imminent legal battle over anti-abortion activists’ efforts to infiltrate a Planned Parenthood facility in Houston is morphing into a dispute over First Amendment protections.

With two of its videographers indicted by a Harris County grand jury on felony charges, the Center for Medical Progress — the group behind a secretly recorded video of Planned Parenthood staff discussing fetal tissue donations — is vowing to fight back.

“The Center for Medical Progress uses the same undercover techniques that investigative journalists have used for decades in exercising our First Amendment rights to freedom of speech and of the press, and follows all applicable laws,” the California-based group said in a statement posted to its website late Monday. The Center for Medical Progress identifies itself as a group of “citizen journalists.”

The timeline for the next steps in the case are unclear, but the group’s response came as details about the charges became public. On Monday, Harris County District Attorney Devon Anderson announced the indictments as a result of a criminal investigation into allegations that Planned Parenthood was illegally selling fetal tissue. That investigation was prompted by the release of covert recordings of staff at Planned Parenthood Gulf Coast in Houston discussing the administrative costs of harvesting fetal organs at various stages of gestation.

But instead of charging the women’s health organization of wrongdoing, the grand jury cleared Planned Parenthood of breaking any laws and handed down charges against anti-abortion activists David Daleiden, founder of the Center for Medical Progress, and Sandra Merritt. They are accused of tampering with a governmental record, a second-degree felony that carries a punishment of up to 20 years in prison.

Daleiden and Merritt of California used fake California driver’s licenses “with the intent to defraud and harm another,” according to the indictment documents filed with a Harris County criminal court. Daleiden presented an ID using the name Robert Daoud Sarkis, while Merritt posed as Susan Sarah Tennenbaum, the indictment documents said.

The alleged use of the falsified driver’s licenses was first reported in July when Planned Parenthood Gulf Coast confirmed to The Texas Tribune that two people “fraudulently representing themselves” as research executives toured a Planned Parenthood facility in April “under the guise of discussing tissue research with our clinic research staff.”

A Planned Parenthood spokeswoman said the two individuals identified themselves as executives with Biomax Procurement Services, a shell company created by the Center for Medical Progress.

The group's release of a series of undercover videos, including the Houston recordings, prompted an outcry by Texas Republican leaders who launched several investigations into Planned Parenthood’s practices.  

The Harris County district attorney’s investigation was launched at the urging of Republican Lt. Gov. Dan Patrick. Investigations by the Texas Health and Human Services Commission and Texas Attorney General Ken Paxton are still ongoing, and state officials have not provided a timeline for when they might be completed.

While the sale of fetal tissue is illegal, abortion clinics may donate fetal tissue with a patient’s consent for use in medical research. Federal law allows clinics to be reimbursed for costs “associated with the transportation, implantation, processing preservation, quality control, or storage of human fetal tissue” for research purposes.

Planned Parenthood health centers in Texas do not currently donate tissue for medical research, according to the organization. Planned Parenthood Gulf Coast participated in fetal tissue donation in 2010 when it partnered with the University of Texas Medical Branch at Galveston for a study on causes of miscarriages.

The Harris County grand jury also indicted Daleiden with a second charge for “prohibition of the purchase and sale of human organs," presumably for offering to purchase fetal tissue from the organization. That charge is a class A misdemeanor that carries a punishment of up to a year in jail.

In its statement, the Center for Medical Progress noted “that buying fetal tissue requires a seller as well” and insisted that Planned Parenthood officials admitted in the videos that they sell fetal organs for profit.

But Planned Parenthood denies those allegations, saying that the grand jury’s indictments show that “the only people who engaged in wrongdoing are the criminals behind this fraud.”

Disclosure: Planned Parenthood was a corporate sponsor of The Texas Tribune in 2011. The University of Texas Medical Branch at Galveston was a corporate sponsor of the Tribune in 2012. A complete list of Tribune donors and sponsors can be viewed here.