Diane talks with Mary McCord, Legal Director at the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center.
Guest Host: Indira Lakshmanan
A grand jury in Texas investigating Planned Parenthood instead indicted two abortion opponents who made undercover videos of the organization. We discuss what makes an undercover investigation criminal and the ongoing political battle over Planned Parenthood’s role and funding.
- Julie Rovner Senior correspondent, Kaiser Health News; author of "Health Care Policy and Politics A-Z"
- Deborah Nelson Associate professor of investigative journalism, Phillip Merrill College of Journalism, University of Maryland
- Sharon Finegan Professor of law, South Texas College of Law
- Mallory Quigley Communications director, Susan B. Anthony List
- Gloria Totten Founder and president, Public Leadership Institute.
MS. INDIRA LAKSHMANANThanks for joining us. I'm Indira Lakshmanan sitting in for Diane Rehm. A grand jury in Texas that was investigating alleged misconduct at Planned Parenthood, this week, cleared the organization of any wrongdoing. Instead, in a move that surprised some observers, it indicted two abortion opponents who made controversial undercover videos purporting to show the reproductive rights group selling fetal tissue.
MS. INDIRA LAKSHMANANJoining me today to talk about the charges against the two who made the videos and the ongoing efforts by abortion opponents to defund Planned Parenthood, Julie Rovner, a reporter with Kaiser Health News and Deborah Nelson of the University of Maryland, a professor of journalism. We're also joined by phone from Houston by Sharon Finegan, professor of law with the South Texas College. Welcome.
MS. SHARON FINEGANThank you. Thanks for having me.
LAKSHMANANAnd thanks also to our listeners for joining us. We'd like to hear your questions and your comments. You can call us anytime during the hour, 1-800-433-8850. You can send us an email at email@example.com. You can also join us on Facebook or send us a tweet. So Sharon, I'd like to start with you. Many have called the circumstances of this indictment highly unusual. Tell us why.
FINEGANWell, it's unusual because usually the grand jury is presented with a particular target of an investigation by the prosecutor and the result, if the grand jury indicts, is usually to indict that target. But it's not actually unheard of for the grand jury in the course of its investigation to discover evidence leading to different criminal charges or charged of different criminal suspects, as they did here.
LAKSHMANANHum. And so the criminal defense attorney in Houston who was a former federal prosecutor was the one who called it highly unusual. He wasn't actually involved in this case, but is it likely then that the grand jury uncovered new evidence in the course of their investigation? There target was originally Planned Parenthood, but they come up with other evidence in the course of looking into that? Is that what likely happened?
FINEGANThat's exactly right. And that is common. I mean, the grand jury is, in part, an investigatory body, right, so the prosecutor will come to them with evidence, but they also have the power to subpoena witnesses and investigate them. They have the power to gather documents together. So here, the attorney for Planned Parenthood provided information to the prosecutor and the grand jury and in the course of examining that evidence, they found that different criminal charges needed to be brought.
FINEGANAs long as there's probably cause to establish those criminal charges, they have the power to indict regardless of whether the prosecutor wanted them to do so or encouraged them to do so.
LAKSHMANANYou know, we all know that old saying about how a grand jury could indict a ham sandwich. Why don't you tell us a little bit about how the grand jury process works for those of us who are not lawyers? What is involved and why do people say that a grand jury could indict almost anybody?
FINEGANYeah. So that saying comes from this idea that the grand jury really is just an arm of the prosecutor, that the prosecutor goes to the grand jury with the evidence that it wants the grand jury to look at and so the result is that the grand jury will indict whomever the prosecutor wants them to indict because they're the ones who've presented the evidence. So that is, in fact, often the case where the grand jury ends up indicting those suspects that the prosecutor brings to them.
FINEGANBut that said, particularly in Texas, they do have this ability to investigate on their own and they clearly are looking at documents in this case and we don't know because grand jury proceedings are secret, but they could've also interviewed witnesses. And so once they do that, actually, really, the grand jury process is not adversarial so there's no defense attorney there for Planned Parenthood who is arguing the other side. It's just the prosecutor who's there.
FINEGANAnd once the grand jury deliberates, they start to discuss whether they're going to indict, the prosecutor has to leave the room. It's only the grand jury members who are allowed to be there. So they really are supposed to be an independent body. They're more so independent now than they may have been in the past because we just changed the rules in Texas on how grand jury members are selected.
FINEGANAnd so now, grand jury members are selected just like regular jurors are selected, from a cross section of the community. And so, perhaps a bit more independent now than they would've been in the past when they were selected by judges.
LAKSHMANANUm-hum. So it's a regular jury of our peers. It's not a group of law enforcement or anyone from the prosecutor's office. It's just so striking because there was a call for the probe of the videos and of supposedly was this Texas branch of Planned Parenthood selling fetal tissue by the Texas governor, Gregg Abbott, back in July. And so he was pointing a finger and then suddenly we end up with these charges instead against the two who made the antiabortion video. Tell us what happened.
FINEGANYeah, well, I mean, that is what's unusual, right? So grand juries may end up pursuing charges against other individuals, but for the very people who were making these accusations were the ones who ended up charged, that is pretty unusual. As I said, we don't know the evidence that they examined, but it's clear from the results they did not find enough evidence to establish probably cause, which is pretty low standard for any criminal allegations against Planned Parenthood.
FINEGANBut in the course of looking at the documents, and we can see from the indictment, they saw these forged California driver's licenses and they looked at an email and they made a determination that crimes had been committed just by people other than Planned Parenthood.
LAKSHMANANAll right. So what are the specific charges against the two who made the antiabortion video?
FINEGANYeah. So it actually really isn't anything to do with the videos themselves. The charges against Daleiden and Merritt are that they provided -- they made a false document, a false government document by providing these faked California driver's licenses in order to commit fraud. And then, the second charge...
LAKSHMANANSo that's a felony, isn't it?
FINEGANThat is a felony charge, yes.
LAKSHMANANTampering with a government record.
FINEGANThat's exactly right. And because they produced it to a Planned Parenthood office here in Houston, that's what makes it a charge in Houston, right, a Texas criminal violation. And then, the other charge is actually a misdemeanor charge. It's a violation of the prohibition of the purchase and sale of human organs. So the allegation is that Daleiden sent an email to Planned Parenthood last summer seeking the purchase of fetal material.
FINEGANAnd even though they didn't respond, that very act of sending that email to try to receive that fetal material is a violation of the law.
LAKSHMANANSo David Daleiden is accused of having tried to set up Planned Parenthood by emailing them and saying that he wanted to buy human tissues. And even though they never responded or much less sold it to him, he is now facing a misdemeanor count for seeking to buy human tissue. Is that right?
LAKSHMANANAll right. Now, what happens next? What's the DA going to do?
FINEGANSo, well, I mean, it's up to the DA to make that determination. So Devon Anderson, the DA here in Harris County, she doesn't have to proceed with prosecution just because the grand jury indicted. And so she'll probably spend the next few months, I would guess, evaluating the evidence and determining whether this is a case that will succeed and to go forward with the prosecution. The next steps now are arrest warrants have been issued for the two defendants.
FINEGANAnd they can either turn themselves in or they'll be arrested, be informed of the charges. They'll probably be put out on bail and then, we'll see, over the next couple of months, whether the DA here in Harris County decides to go forward with the prosecution.
LAKSHMANANSo the DA has about 90 days and she can decide whether or not to press charges. She is not necessarily going to.
FINEGANYeah. And that's -- there's so strict a time limit, honestly, on that. I mean, felony charges, it's usually within 180 days, misdemeanor 90 days, but there are certainly cases where it can take a lot longer than that for the trial to move forward.
LAKSHMANANBut about Devon Anderson, the female district attorney in Harris Country, Texas, because she's a quite interesting story in her own. She calls herself a proud, prolife Texan and she's leading this prosecution against the antiabortion activists, right?
FINEGANYeah. I mean, so she was requested to bring these suspects or Planned Parenthood, specifically to the grand jury. But really, it is the grand jury that makes the determination of what crimes, if any, have been committed and who committed those crimes. And she has indicated that she respects the grand jury process and she respects their decision.
LAKSHMANANSo even though she was the one seeking charges against Planned Parenthood, she may find herself in the situation of, instead, prosecuting these people from the antiabortion center for medical progress.
FINEGANThat's exactly right.
LAKSHMANANVery interesting. Thank you so much, Sharon Finegan, professor of law with South Texas College of Law in Houston.
LAKSHMANANSo Deborah Nelson, I want to turn to you now. This Center For Medical Progress, the antiabortion group that produced the videos, said that they used the same undercover techniques that investigative journalist has used for decades or even longer. You, yourself, won a Pulitzer Prize for your investigative reporting. You've edited Pulitzer Prize-winning projects at national newspapers. Is this group right? Are they conducting themselves in the same way that would be rewarded and even given prizes in other circumstances?
MS. DEBORAH NELSONWell, I think one important point to make about that statement, you know, when I heard that statement, I immediately thought, wait, something's wrong with that. You know, there's hard and fast definition for investigative reporting, but it's not defined by the techniques you use. I mean, heck, undercover cops, terrorist, you know, use hidden microphones and undercover techniques, right? That doesn't make them investigative journalists.
MS. DEBORAH NELSONWhat matters is what your intent is. You know, if your intent is to document what's really going on without fear or favor, then that's journalism. But if your intent is to advance an agenda, that's not. The second thing, though, is that it's interesting that they're using investigative journalism as sort of a shield because, you know, against the law, because in fact, whether you're a journalist or not, you know, you're not really protected.
LAKSHMANANAnd you're not allowed to forge federal documents or forge a driver's license.
LAKSHMANANAll right. Well, we will talk more about that after our break. We're going to take a short break now, but coming up, more about the Planned Parenthood case. Stay with us.
LAKSHMANANWelcome back. I'm Indira Lakshmanan, sitting in for Diane Rehm. We're talking this hour about Planned Parenthood, the investigation in Texas and the surprise indictment of the two anti-abortion activists who had made apparently tampered-with videos that were trying to frame Planned Parenthood and now have found themselves indicted. Joining me in the studio, Julie Rovner, senior correspondent at Kaiser Health News, author of "Health Care Policy and Politics A-Z," and Deborah Nelson, a Pulitzer Prize-winning journalist and associate professor of investigative journalism at the University of Maryland.
LAKSHMANANBefore the break, Deborah, we were talking about these anti-abortion activists who have been indicted compare their own methods in making these videos to investigative journalism, saying that they had the public interest in mind and were trying to expose wrongdoing. Make it clear for us. What is legally permissible, and what is ethical when it comes to investigative journalism?
MS. JULIE ROVNERWell, I notice that they also invoke the First Amendment, so journalist and the First Amendment, and kind of held that up. And however, the Supreme Court has said that the First Amendment doesn't provide a lot of protection for illegal activity, for journalistic methods that break the law. If a law is otherwise constitutional, we stand in the same shoes as any other member of the public. So forging a driver's license to do an undercover operation, you're no better off than a 17-year-old with a forged license trying to get into a bar.
LAKSHMANANSo no matter what the reason is, the means do not justify the ends?
NELSONFrom a legal standpoint.
LAKSHMANANFrom a legal standpoint, just because you're trying to do journalism, you can't take illegal actions to get your goal. What about dressing up as a doctor or a nurse? I know that, you know, and making your way into a hospital to try to expose wrongdoing, for example?
NELSONWell again, you know, you take the risk. If it's a worthy investigation, and undercover work is warranted, and I could talk a little bit about that if you'd like, but if it's a worthy investigation, and undercover work is justified, then you still have to take the risk of being arrested or charged or sued because you've broken the law.
LAKSHMANANAnd impersonating someone would be breaking the law, I suppose.
NELSONIt may be breaking the law, depending on who you're impersonating and where you've gone. It certainly would subject you to trespassing if you gained access to someplace that you wouldn't otherwise gain access to by lying about who you are.
LAKSHMANANCan you give us some examples of other -- of undercover investigations that led to criminal charges? I'm thinking maybe of Food Lion. Tell us about that case.
NELSONYeah, Food Lion didn't lead to criminal charges, but it did lead to a huge judgment against Food Lion initially. Food Lion involved -- sued ABC, "Primetime Live," after two reporters went undercover for just a couple weeks, but they got jobs at Food Lion and got jobs in the meat department and while there did undercover video that showed that meat was -- bad meat was being sold, old meat was being dressed up and bleached and put out on the shelves, and cheese gnawed by rats was being sold. And after they did their piece...
LAKSHMANANSo it seems like a worthy investigation, to expose unsafe food that was being sold to the public.
NELSONYeah, perhaps, but Food Lion sued them for trespass, a whole range of issues, trespass, disloyalty to employers, fraudulent misrepresentation, and what's interesting is that the jury found against the undercover reporters and not only hit them with damages for -- to -- you know, for costs, for profits lost by Food Lion due to the report but also hit them with a $5 million settlement, which back in the '90s as a large -- I mean punitive damages, which back in the '90s was a large amount of money.
LAKSHMANANMeaning that ABC had to pay that money as a settlement.
NELSONABC had to pay it. But when it reached the U.S. Court of Appeals Fourth Circuit, the U.S. Court of Appeals threw all that out and essentially left Food Lion with a $2 damage settlement, damage judgment. The reason it was thrown out was, you know, the U.S. Court of Appeals said you are, you were guilty of trespass, you were guilty of fraud, but your fraudulent misrepresentation didn't lead to the harm to Food Lion. That was caused -- you know, your story was true. Harm...
LAKSHMANANMeaning ABC News told a true story.
NELSONThe harm was caused by Food Lion's own practices, and that distinguishes, I think, that case from the one at hand because in the one at hand, there's a significant amount of evidence that the stories that they've presented are not accurate.
LAKSHMANANAnd that the video was edited in a way to mislead the viewers.
LAKSHMANANSo in other words, the point is they're not protected by those same rules because they were actually presenting a fraudulent report is the bottom line.
NELSONAnd actually they have been sued by Planned Parenthood in a very similar case. Planned Parenthood has thrown in racketeering, but trespass and fraudulent misrepresentation are part of that case.
LAKSHMANANAll right, well Julie, I mean, based on this video, a number of states have launched investigations, Texas included, but I'm wondering, what is the status of these investigations, and what is the sort of level of proof for saying these videos have been altered, they're not real, and yet we have something like five congressional committees and a number of states investigating.
ROVNERWell, I would suggest that this question that we were just talking about, about how accurate the videos are, will probably be litigated in the case that Planned Parenthood brought in California week before last. But in the meantime, as you mention, a number, a large number of states, have actually started to look at this, and, you know, so far 11 states have looked at it and cleared Planned Parenthood of any wrongdoing. Eight states refused to -- said there wasn't enough evidence even to look at it.
ROVNERWhat's important to realize about all of these state investigations is that Planned Parenthood in -- only in four states ever donated fetal tissue. So all of the other states, in fact some of the states were investigating Planned Parenthood in states where Planned Parenthood doesn't do abortions, like Louisiana. So, I mean, so they were looking specifically at fetal tissue when there was nothing to look at because Planned Parenthood didn't do -- didn't donate fetal tissue in any of those states. So it was not -- it was complete expected that they would be cleared.
ROVNERInterestingly in Florida, they came up, they said, well, they have -- they aren't, you know, trafficking in fetal tissue, but they found one clinic that they said was doing abortions later in pregnancy than they were allowed, until it was pointed out to them that they were miscounting, that the way you date weeks of pregnancy is not what they were saying. So in fact the clinic had not been doing anything wrong. So that had to get cleared up in the process of this, but...
LAKSHMANANSo in fact there's no state that is still currently investigating this?
ROVNEROh, there are a couple of states that are still, I mean, Texas, in fact, where the governor said, despite what happened in Houston, we're going to continue our investigation, and Texas is one of the states where formerly Planned Parenthood worked to donate fetal tissue but...
LAKSHMANANHad been donating it but not selling it.
ROVNERYeah, well, it -- what the law about fetal tissue says, and it's slightly different from the law about organs because this was something that Congress did in a very bipartisan way in the early 1990s, is that with informed consent, a woman having an abortion can donate her tissue for research. She can't direct it to anything in particular. They were concerned about women getting pregnant in order to use fetal -- to have an abortion and use that fetal tissue for an existing child.
ROVNERAnd they did say that the facilities that donate can recoup costs because it does cost money to, you know, isolate and package and, you know, make the fetal tissue available. So they are allowed to recoup costs, and that's been some of what's gone on about the issues of...
LAKSHMANANBut recouping costs is different from selling it for a profit.
ROVNERYou are not allowed to sell it for a profit, that's right.
LAKSHMANANAnd so there has not been any evidence found that they were selling it for a profit, and so that is why Planned Parenthood has filed a civil lawsuit against this organization, right? Can you tell us more about the lawsuit?
ROVNERThat's exactly right. The lawsuit was filed January 15 in the Northern District of California and charging, as we were talking about before, using the RICO, the racketeering statute, that there was a conspiracy, basically, they said, to smear Planned Parenthood, which seems -- which they have acknowledged was their intent, to, you know, basically get Planned Parenthood's funding pulled at the federal level, at the state level, at the local level, wherever Planned Parenthood is funded by, you know, governmental entity, they wanted that stopped, and Planned Parenthood is suing, saying that they used not only illegal means but that they -- what they purported to tell was a fundamentally untrue story.
LAKSHMANANAll right, well Deborah, in Texas, the DA has no obligation now to press charges, as we were discussing before with Sharon. Is there any kind of standard practice? What do you expect to happen next?
NELSONStandard practice in terms of the DA?
LAKSHMANANRight, now that they have not gotten the indictment that they were perhaps looking for and investigating, they've in fact got an indictment of two other people, the people who made the video. What is -- what is it that's expected to happen next?
NELSONThey've gotten the indictments, and so the cases will proceed. I read that the attorney for Mr. -- I can't pronounce his name.
NELSONThank you, that he's going to plead guilty. It's unlikely that they'll get jail time. You know, a lot of teenagers have been caught doing the same thing and...
LAKSHMANANIn terms of forging driver's licenses.
NELSONForging driver's licenses. And the other charge is, you know, under Texas law.
LAKSHMANANTrying to buy fetal tissue.
NELSONYeah, making an offer to buy fetal tissue, which apparently is against the law in Texas.
LAKSHMANANRight, although a misdemeanor.
NELSONAlthough a misdemeanor.
LAKSHMANANAll right. Julie, I also want to take this back to the whole question of how it affects the big picture of support for or pulling federal funding from Planned Parenthood. You know, what about this effort to block any federal funding for Planned Parenthood over these videos, even if the videos have been discredited and even though the organization is already barred from using any of its federal dollars on abortion services? Where do you see this fight going?
ROVNERWell, you know, I've been covering this fight since the late 1980s. It was one of the early stories that I did about the fight to defund Planned Parenthood. It actually dates back to 1982, so this is nothing new, the idea that Republicans would want to defund Planned Parenthood. They have always been -- the anti-abortion forces have always been very unhappy about the idea that an entity that performs abortion gets federal funding, even though they don't get federal funding for the abortions.
ROVNERThat -- so this is something that goes way back before Mr. Daleiden was born, and this is just the latest effort, and obviously, you know, the media has changed in that time, so, you know, accusations like this can get out more and, you know, they did -- apparently this was incredibly highly orchestrated how these videos were released, and indeed it got all of these states excited. You had a number of states, a number of governors tried to cut off funding, Medicaid funding for Planned Parenthood, and of course they were informed, often after legal action, that they can't cut off Medicaid funding for Planned Parenthood, that only Congress can cut off Medicaid funding for Planned Parenthood because written into the original Medicaid statute is a requirement that patients have free choice of providers.
ROVNERSo if a Medicaid patient wants to go to Planned Parenthood for birth control, that would be her choice, and the state can't stop that. Congress last year did -- the Republicans, particularly in the House, did try to do that by basically waiving that portion of the Medicaid statute, which they could do. And in fact there is language to that effect in the budget reconciliation bill that President Obama vetoed a couple of weeks ago, citing the defunding of Planned Parenthood as one of his reasons. It also basically repealed most of the Affordable Care Act.
ROVNERBut the House is expected to vote on that next week, and it's expected not to have enough votes.
LAKSHMANANI'm Indira Lakshmanan, and you're listening to the Diane Rehm Show. Deb, you wanted to say something.
NELSONYeah, this actually is out of the playbook of, you know, back in 2009, remember Hannah Giles and James O'Keefe, who did undercover videos that purported to show ACORN, that community organizing group that really, you know, advocated on behalf of low-income neighborhoods, against predatory lending, did a lot of voting registration drives. The undercover video turned out, you know, showing them trying to rent property to a prostitute and pimp that turned out to be fraudulent. The video was heavily edited, similar to this case. But you know what? It had a lasting impact. The results were almost identical.
LAKSHMANANSo it was basically smearing, though, because the video was not, in fact, correct.
NELSONThe video was heavily edited, and numerous investigations took place on the state and federal level afterwards. None of them found any wrongdoing. And yet the organization was defunded for a while, and it's really never recovered from that operation.
ROVNERThat -- those same people also went after Planned Parenthood in 2011, went in and basically posed, and I think one of them posed as a pimp, tried to arrange for, you know, for underage girls to get abortions without...
LAKSHMANANWithout parental consent or knowledge.
ROVNERYes, without parental consent or knowledge, which in some cases is allowed, but it was the idea that there was sex trafficking going on.
LAKSHMANANAnd what happened as a result of that? They were trying entrap Planned Parenthood into doing something illegal, and what did Planned Parenthood do?
ROVNERAnd that -- and those again, there were allegations about the videos being, you know, selectively edited, and in the end, there was a big stir, and nothing really ended up happening. But it did, I think, plant some more of the seeds of, you know, particularly on the right about we hate Planned Parenthood and how dare Planned Parenthood be getting any federal or any government funding.
LAKSHMANANSo an image gets created even if the facts in the end turn out not to be what those videos have purported to be, that a certain image is set in the public mind, and it's impossible to change. I'm thinking of what Carly Fiorina said about those videos, and no matter how many people tried to tell her, well, those videos have been edited, they're not true, you know, nothing seemed to change the mind of...
ROVNERIt doesn't show what it purports to show, which is true. But it's also important to say that if you look at public opinion polls, Planned Parenthood still has very strong support in the public. You know, it's in...
LAKSHMANANInteresting, what percentage?
ROVNERIt's in the 60s, and I mean, it may be because as Planned Parenthood points out, one in five women will have visited a Planned Parenthood over her lifetime, and it is a -- you know, they serve about three million people a year. They serve a lot more men than they used to because the vast majority of services they provide are contraception and STD testing.
LAKSHMANANOkay, well, joining us now by phone from her office in Washington is Mallory Quigley with the Susan B. Anthony List, a nonprofit organization seeking to end abortion in America by supporting anti-abortion candidates and legislation. Mallory, thanks for joining us. And what, if anything, do these indictments of these anti-abortion folks mean for your legislative strategy and your overall effort?
MS. MALLORY QUIGLEYThank you so much for having me on. I would say that these indictments, they do not change the pro-life strategy, which you ladies have been discussing, and that is to expose Planned Parenthood as the nation's largest abortion provider and to educate Americans as to why they are undeserving of our taxpayer of dollars for a myriad of reasons, including their undisputed role in harvesting organs from aborted children.
MS. MALLORY QUIGLEYAnd as Julie was saying earlier, you know, the fight to defund Planned Parenthood in Congress, we're actually closer than ever to making that a reality and reallocating those federal funds to comprehensive health care centers do all of the preventative services that Planned Parenthood does offer but don't provide abortions. So we're close than ever before because of the reconciliation pathway that was laid out by Senate Republicans at the end of last year.
MS. MALLORY QUIGLEYWe were able to avoid a Senate filibuster on the legislation, got it to President Obama's desk, and, you know, as has been said before, that is pretty historic. It was the first time since Planned Parenthood began receiving federal funds that a bill defunding them got as far as it did. So it...
LAKSHMANANAll right, quickly Mallory, in the few moments we have left, though, do you worry, though, that these actions of these two anti-abortion campaigners who took illegal methods, you know, in any way can stain or harm your case when you're using legal methods, but they didn't?
QUIGLEYNo, I think that these videos were investigative journalism, and they're out there. And I know from talking to many pro-choice friends and even pro-choice reporters that I work with that they were changed as a result of watching it. You know, Planned Parenthood doesn't deny that those are their employees, that those are the words that they said, and even their own forensic analysis found that there wasn't any substantial audio or visual manipulation in the videos.
LAKSHMANANAll right, we're going to have to take a short break now. Thank you so much. Coming up, your calls and your questions on Planned Parenthood. We'll be back. Stay with us.
LAKSHMANANWelcome back. I'm Indira Lakshmanan sitting in for Diane Rehm. Joining me here in the studio, Deborah Nelson, a Pulitzer Prize-winning journalist, associate professor of investigative journalism at the University of Maryland, and Julie Rovner, senior correspondent with Kaiser Health News.
LAKSHMANANAnd joining us now by phone from her office in Washington, Gloria Totten, founder and president of Public Leadership Institute, a nonprofit, one of whose missions is to guarantee legal and safe abortion rights. Welcome, Gloria.
MS. GLORIA TOTTENThank you. Thanks for having me.
LAKSHMANANSo, Gloria, Planned Parenthood has said that the filmmakers broke the law to spread lies and that the organization is grateful that these two video makers are being held accountable. You have said that it is far past time that groups like Planned Parenthood or their allies should go on the offense with respect to improving women's access to abortion. Why?
TOTTENWell, the first reason is that states have passed more than 318 new abortion restrictions since January of 2010, when conservatives swept into power all across the country. And while that -- and so for five, six years now we've been largely on defense in the states. And so they've shown that this is gonna embolden their tactics, as these videos, I think, testify to.
TOTTENAnd so our approach now is to go on offense, to develop pro-active policies that actually expand access to abortion, guarantee medically accurate care and expose the other side's real intentions, which is to not just eliminate abortion, but to eliminate access to contraception and other forms of birth control.
LAKSHMANANSo how do you, in effect, go on the offense? What does that consist of?
TOTTENWell, we produced "A Playbook for Abortion Rights," which is 29 pro-active policies that we're distributing the public and to policymakers all across the country. We've got folks organizing in states now to take bills from that playbook. And I think you'll start to see many more of those move as a result of this being out there.
TOTTENAnd basically, policymakers are saying, we're not gonna just sit here and debate the anti-choice restrictions and have this debate on their playing field. We're going to push forward bills that are good for women, good public policy and fight the fight on that front, even if it means that we'll lose in many of these -- in many states.
LAKSHMANANAnd how do you respond to those on the other side, like Mallory Quigley, who we just spoke with, who said that nothing about these indictments changes their view that the videos were making a point about what she called the harvesting of organs, what Planned Parenthood talks about as the donation of fetal tissue? You know, that obviously has a great impact on people's minds. What is your reaction to what Mallory said?
TOTTENWell, I think that it, you know, I don't -- I'm not surprised that this isn't gonna change their strategy. I think you're, you know, the conversation that you were having before I came on the air, that this, you know, even when it's proven that these are heavily edited, that they're factually incorrect, I mean, now there's been a grand jury indictment. None of that is gonna slow them down because they are on a mission to eliminate abortion care for women in the United States, and frankly, throughout the world.
TOTTENAnd so that doesn't surprise me. I think that, you know, we will continue to see, you know, folks -- and they do this because they think that it is gonna make a difference in the debate. When you've got a presidential candidate standing up and repeating, you know, what we know as factually incorrect, you've got activists all across the country doing that, sure, that's gonna happen.
TOTTENBut I think in this case it's, you know, it will die down. And by moving an offensive strategy, by moving a strategy that is about guaranteeing medically accurate care, guaranteeing services for women, and really talking about what we want the experience for a woman to be like after she's decided to terminate a pregnancy, that's the conversation that we want to have.
LAKSHMANANOkay. All right.
TOTTENThey don't want to have that conversation.
LAKSHMANANGloria Totten, thank you so much for your time. Really appreciate it. I'd like to bring in some of our listeners who have been calling in and sending messages. We've got Ron, who's emailed in, "It seems like all these 'investigations' of Planned Parenthood are bogus. Clearly political witch hunts. Why can't Planned Parenthood get redress of grievances against prosecutors who are pursuing them? Can Planned Parenthood sue state governments?" Julie?
ROVNERI don't believe they can sue state governments. Although, it has been pointed out that the states, particularly in these states where they're investigating, you know, what they're calling the potential sale of fetal tissue, they're doing it in many states where there has never been any fetal tissue provided, you know, for sale or from donation from these Planned Parenthoods. So there's…
LAKSHMANANSo it's impossible to be selling it…
LAKSHMANAN…if it -- if they're not providing it.
ROVNERRight. So there is some suggestion that the taxpayers might have some redress about, you know, spending all this time and money. And in some of these cases that have tried to…
LAKSHMANANMeaning, the state governments themselves are spending money on these investigations.
ROVNERRight, right. And in cases where the states have tried to cut off funding for Medicaid for Planned Parenthood, even though it's fairly clear that they can't do that, and then they end up being taken to court and then spend more money on, you know, on legal defenses of the case that it's pretty clear they're going to lose.
LAKSHMANANThat's a spurious investigation, essentially.
ROVNERBut I don't -- I'm not sure that it -- yeah, I know, though, I guess Planned Parenthood also has it. You know, they're spending the money to actually take them to court. But there's also taxpayer money involved in this. And that -- this has come up an issue about why are these states, you know, they're clearly making political statements, but they're also spending taxpayer money.
LAKSHMANANOkay. Let's take a call from Todd, in Cleveland, Ohio. Todd, you're on the air. Welcome.
TODDIndira, Deborah and Julie, you hear me okay?
TODDI would like to know if any of you know if there's any pressure from the federal government being put on Planned Parenthood to structure the agency in a way where they actually do more planning of parenthood? And this is my motivation for asking this. I do recognize the importance of contraceptives. If you don't want to have a child, but you want to keep having sex, that's important. I do understand the significance of abortion on some occasions. You got pregnant, you didn't want to be pregnant. You want to get rid of it.
LAKSHMANANSo what's your question?
TODDBut the -- but that is my question. Is there some pressure being put on Planned Parenthood to actually spend this money that they get structuring the planning of parenthood more.
LAKSHMANANMeaning parental education or teaching people when they are ready to or helping people decide when they're ready to have children, is that what you mean?
TODDEducating on planning parenthood, educating on the health of your body to prep yourself for parenthood.
TODDThe cost of parenthood.
LAKSHMANANOkay. Good question. Thank you. Julie?
ROVNERThat's a lot of what they do now. I mean, that's, you know, for all of the talk about Planned Parenthood being the nation's, you know, largest provider of abortions, abortions account for 3 percent of the services that they provide. That in terms of funding. But birth control is actually 80 percent of what Planned Parenthood provides. And there are education services, as well. But it is, you know, the vast majority of what Planned Parenthood does is contraception, well-women visits, and STD testing and treatment.
ROVNERAbortion, in fact, only just a little more than half of Planned Parenthoods even do abortion. They are mostly women, and to an increasing extent, men's basic health care providers.
LAKSHMANANAnd family planning, in terms of, okay, future families. All right. Deborah, I want to ask you, both Gloria and Mallory, who we just spoke with, although they don't agree on reproductive -- they don't agree on abortion for one thing, what they did agree on was that the videos have had the effect that the videos wanted to have, in terms of motivating political action. Again, it comes down to the question of -- Mallory was using the term, once again, investigative journalism. She continued to refer to it as investigative journalism. What's your response to that?
NELSONThere is no question that the videos have had impact. However, I really get upset at the misuse of the word investigative reporting. Using that as, you know, the umbrella under which they are doing things that are really quite unethical. I mean, investigative reporting is methodically, independently, I'd say obsessively exposing what's really going on without fear or favor. And they've certainly got the first half of that equation down. The obsessively, you know, methodically exposing.
NELSONBut they've forgotten about the truth. They've left off the truth half of the equation. And that is essential to investigative reporting. As somebody who has spent my life, as many of my colleagues have, painstakingly documenting, you know, with records, with sources, with observation what's really going on, it really is heartbreaking to see these groups run off with those techniques and misuse them to advance agendas.
LAKSHMANANSo your point is that rather than seeking the truth, they've got a preconceived idea or in fact, they're trying to prove something which is not actually true. They're trying to selectively edit video to create a different impression, and that -- and you don't think they should be hiding behind the title of investigative journalists.
NELSONThat is what distinguishes advocacy from investigative journalism. But I'd also say that it also distinguishes good advocacy from advocacy. 'Cause even good advocates don't deceive. They muster the facts that support their, you know, agenda, but they don't make them up.
LAKSHMANANOkay. All right. Let's go to Donna, in Frankfort, Ky. Donna, you're on the line. Donna, are you there?
DONNAYes, I am.
LAKSHMANANPlease, go ahead. Hi.
DONNAThank you for taking my call.
DONNAThis is the first time I've ever gotten through.
LAKSHMANANOh, well, I'm so glad you did.
DONNAI just want to say that I believe that the altered tapes led pretty directly to the terrorist attack on the Planned Parenthood in Colorado. And it seems to me that inciting a criminal attack should have some legal repercussion. And I'll take your response off line.
LAKSHMANANAll right. Thank you very much, Donna. So she says that she thinks those videos put an idea in the mind of the man accused of the fatal shooting outside the Planned Parenthood in Colorado Springs. Julie?
ROVNERYes. And there has been -- there is some evidence that suggests that that might be the case. You know, he talked about saving the babies and talked about baby body parts. He hasn't said very much. And obviously, this is a seriously disturbed individual, so it's hard to know exactly why. But this could well have been a part of it. Whether, you know, this has been said for quite a long time. Abortion clinic violence is unfortunately also not a new thing. And there are questions about, you know, whether or not they are incited and by what.
ROVNERI'm not sure that has been, you know, probed legally, whether you could actually draw a line from here to there. But there certainly is an element of people who are willing to end abortion by any means necessary, including murdering abortion providers.
LAKSHMANANI'm Indira Lakshmanan and you're listening to "The Diane Rehm Show." So, you know, it is an interesting point that whether these videos were inciting the violent action. I think the caller wanted to know whether that in itself could be charged as a crime. I think we don't know the answer to that, but what they are going up against is this falsifying of the driver's licenses themselves.
LAKSHMANANAll right. Let's take another call, from Jose in Houston, Texas. Jose, go ahead.
LAKSHMANANHi. You're on the air.
JOSEYeah, I actually live about a mile from the Planned Parenthood clinic, you know, at the center of the Harris County indictment. And pretty much every day there is one of these crises or was a pregnancy crisis centers that parked out in front of it. And I'm not saying anything about them in particular, but I've heard in the past that sometimes that they aren't always representing the truth accurately when they're, you know, dealing with people that come in for a, you know, a consultation. And I'm wondering how that plays into, you know, what everybody's talking about now.
LAKSHMANANSo what is your understanding of what these pregnancy crisis centers, what sort of misinformation?
JOSEThat they essentially are, you know, it's literally parked in front of the front door of the Planned Parenthood clinic. And they're trying to divert people Planned Parenthood to go there. And, you know, I've heard in the past that they essentially provide information that sway potential pregnant women to not get abortions. And they sort of have an agenda to prevent abortions that way. But in doing so they don't always provide the truth. I mean, I've heard really absurd tales of the information that they provide. And I'm just wondering how that…
LAKSHMANANAnd you're wondering if there are legal repercussions for those people.
JOSEExactly. Exactly right.
LAKSHMANANOkay. All right. Thank you. Julie, do you know?
ROVNERWell, this could be whole another hour about pregnancy crisis centers. I mean one of the big, I mean, nothing that they do sort of -- specifically in terms of trying to convince women with unintended pregnancies to not have an abortion, nobody argues with that. The question is, as the caller mentioned, sometimes their tactics.
ROVNERFrequently, they will advertise in, you know, the abortion provider's section of, you know, the Yellow Pages or online. If you do a search for abortion providers, you'll get pregnancy crisis center. And they will imply that, you know, that they provide abortions, you know, in order to get women in the door and then try to convince them not to. And I think there is some concern about some of the tactics that some of them use. I'm not sure that any of them rise to the level of illegality. But there has been a lot, over many years, of charges on both sides about the activities of these pregnancy crisis centers.
NELSONIn fact, they have strong First Amendment protections. The First Amendment protects even lies. And so -- and there, you know, there are laws…
LAKSHMANANBut when you say the First Amendment protects lies, then it makes it sound like the First Amendment would also protect the videos themselves.
NELSONThe First Amendment would protect the videos themselves. If the videos were edited in a way that they were defamatory and somebody took them to court and proved liable, then it would lose that protection. Somebody could be punished -- they could punished for putting the videos out. But…
LAKSHMANANAnd that's what Planned Parenthood is trying to do.
LAKSHMANANTrying to take them to court and say they're defamatory.
ROVNERBut they have not charged them -- the lawsuit doesn't allege liable.
ROVNERYeah, it talks about reckless and malicious smear campaign.
LAKSHMANANAll right. Well, a smear campaign, liable, I guess, they're legal terms, but they're similar. Julie, in the short time we have left, you have said the battle for abortion access is being fought on the state level. But how big of an issue is this going to be in the presidential campaign?
ROVNERWell, it's always an underlying issue. It rarely rises to the very top. I mean, I've been covering this since the 1980s. And it has always been there. Frequently it comes out when people are concerned about the Supreme Court, who, after all, is the final arbiter of how and whether abortion is legal. And certainly all of the Republicans, including Donald Trump, who used to be pro-abortion rights, are now, you know, absolutely swearing that they will do everything they can to end abortion and defund Planned Parenthood.
ROVNERAll three Democrats who are running are strong supporters of Planned Parenthood and of legal abortion. So it will be there. How high it will be, not clear what else is gonna, you know, sort of come up and raise it. But it is always sort of an underlying effort in terms of getting out the vote, that, you know, women are turned out to protect abortion rights. And anti-abortion men and women, you know, are turned out to, usually to vote for the Republican.
LAKSHMANANRight. And of course some of Donald Trump's opponents on the Republican side have used his previous pro-abortion rights stance as a way to undercut him with some of his conservative base.
ROVNERYes, particularly Ted Cruz is doing it right now.
LAKSHMANANThat's right, in Iowa as we speak. All right. Thank you all so much for joining us. We had Julie Rovner, senior correspondent, Kaiser Health News, author of "Health Care Policy and Politics A to Z," Deborah Nelson, an associate professor, investigative journalism at the University of Maryland. And earlier we spoke at the top of the hour with Sharon Finegan, a professor of law at South Texas College of Law, and were of course joined by Mallory Quigley of The Susan B. Anthony List, and Gloria Totten of The Public Leadership Institute.
LAKSHMANANThank you all so much for listening. I'm Indira Lakshmanan and this is "The Diane Rehm Show."
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