The U.S. Supreme Court declined to take up an appeal on Monday from a pro-life group that a jury found broke the law when it surreptitiously recorded Planned Parenthood employees.
The high court’s denial follows a 2022 ruling by the 9th U.S. Circuit Court of Appeals upholding most of the damages that a lower court awarded to Planned Parenthood in its lawsuit against the California-based Center for Medical Progress and its founder, David Daleiden.
The pro-life organization first made headlines in 2015 when it published online secretly recorded conversations with Planned Parenthood doctors and staff. The footage showed executives haggling over the pricing of aborted fetal body parts, sparking backlash and both congressional and state-level investigations of the abortion provider’s business practices.
The Center for Medical Progress’s scheme to obtain and publish the footage involved creating a fake company and fake identities. In its 2016 lawsuit, Planned Parenthood argued that the organization’s actions constituted fraud, trespassing, breach of contract, and a violation of the Racketeer Influenced and Corrupt Organizations Act.
Three years later, a jury sided with the abortion provider, finding that the pro-life group also violated the Federal Wiretap Act. Although the appeals court later overturned that aspect of the verdict, it accounted for less than $100,000 of the $2.4 million in damages—plus $13 million in attorneys’ fees—initially awarded.
Limitations on Free Speech
The Center for Medical Progress had argued before the 9th Circuit that its journalistic methods were protected under the First Amendment. But that argument was unanimously rejected by the appeals court, which said, “Invoking journalism and the First Amendment does not shield individuals from liability for violations of laws applicable to all members of society.”
In petitioning the Supreme Court, the pro-life group maintained (pdf) that Planned Parenthood, which did not sue for defamation, should nonetheless have to overcome the court’s previous strict limitations on what damages public figures may recover in relation to published speech.
In defense of its investigative methods, the Center for Medical Progress pointed to a similar undercover investigation conducted by Chris Wallace and published by ABC News’s “20/20.”
“Using a fictitious name and fake credentials, ABC journalists met with fetal tissue vendors in the abortion industry,” the group noted. “Their three-month investigation revealed a host of illegal and unethical practices in the industry related to the sale of tissue from aborted babies.
“At the time—when it was not the focus of the investigation—Planned Parenthood praised ABC’s report and condemned the abortion provider who was its target,” the filing adds. “Gloria Feldt, then the president of Planned Parenthood, publicly stated, ‘Where there is wrongdoing, it should be prosecuted and the people who are doing that kind of thing should be brought to justice.’”
According to the Center for Medical Progress, Mr. Daleiden modeled his investigation on the ABC’s, using “nearly identical” methods and means.
The group also charged that Planned Parenthood had “euphemistically” labeled its losses as “infiltration” and “security damages” to circumvent the challenges presented by a defamation case—which would include showing that the published speech in question was false.
“The complaint contains a list of grievances that are inextricably intertwined with CMP’s decision to publish videos detailing the results of its investigation. … Thus, even though PPFA ‘fail[ed] to file a defamation claim,’ it sought substantial ‘damages’ to reimburse it for expenses it voluntarily incurred to prevent similar investigative reports by others in the future, and to address the public’s perceived response to the video.”
Citing similar circuit court rulings that appear to contradict one another on whether the First Amendment’s protection applies in such cases, the Center for Medical Progress argued that the Supreme Court should settle the matter once and for all.
Planned Parenthood has denied selling the body parts of aborted babies for profit, maintaining that the Center for Medical Progress’s videos were deceptively edited as part of a smear campaign against the abortion provider.
The Supreme Court announced its rejection of the case on the first day of its 2024 term, which will run through June. In the coming months, the court is expected to hear cases involving second amendment rights, social media regulation, the power of federal agencies, a South Carolina redistricting dispute, and the availability of the abortion pill, among others.
Reuters contributed to this report.
