David Daleiden was smiling on the morning he turned himself in at the Harris County criminal courthouse in Houston, Texas. Sporting a skinny tie, his hair slicked back in a faux-hawk, the 27-year-old thanked his supporters in the anti-abortion movement. He vowed to continue his three-year secret-video crusade against Planned Parenthood, which Daleiden maintains is illegally trafficking in fetal tissue.
But it has been a stunning reversal of fortune for Daleiden, the toast of the Republican presidential candidates and the bane of abortion providers' existences, and that sea change goes beyond the Texas courthouse. A grand jury that was supposed to be investigating Planned Parenthood over the content of Daleiden’s videos – at the request of Texas’s fervently anti-abortion lieutenant governor -- instead indicted Daleiden and an associate on felony charges. Having turned down a plea deal that would keep him out of prison, Daleiden could serve up to 20 years. He faces a raft of civil suits, including accusations of racketeering by Planned Parenthood. Twelve states that have investigated Planned Parenthood have cleared the organization of wrongdoing. And he didn't know it yet, but another setback for Daleiden was about to come.
“They are sending a message that the state of Texas right now is open for business in baby body parts," Daleiden said last Thursday morning. He was referring to a state that has gone further than any other to restrict abortion and shut down Planned Parenthood.
Daleiden calls himself a citizen journalist, and his attorneys have claimed that creating a fake tissue procurement company and misrepresenting himself to secretly record abortion providers falls within the bounds of journalistic techniques.
“None of us want to live in a country where journalists can be put in jail for decades merely for doing their jobs,” Peter Breen, a lawyer with the Thomas More Society, told those gathered in Houston that day.
A day later, a federal judge in California flatly disagreed that Daleiden and his group, Center for Medical Progress, were engaged in regular investigative journalism. The National Abortion Federation (NAF), a trade group of abortion providers whose members include Planned Parenthood affiliates, had asked Judge William Orrick III to block Daleiden from releasing recordings he made at its annual meetings while pretending to be a fetal tissue broker.
Daleiden’s videos, Judge Orrick wrote in his 42-page order, “thus far have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions … of criminal misconduct. Defendants did not – as Daleiden repeatedly asserts – use widely accepted investigatory journalism techniques.” (His comments only referred to the NAF videos before him.)
For example, Center for Medical Progress participants were given a “mark list,” Orrick wrote in previously undisclosed details. Daleiden told one volunteer that it “would be really good to talk tonight” with one doctor “now that she’s been drinking.” Orrick wrote, “Daleiden told his associates that their ‘goal’ was to trap people into ‘saying something really messed up.’” Daleiden urged them to offer massive financial profits for fetal tissue and to try to get abortion providers to use the phrase “fully intact baby.”
In characterizing the videos, Orrick wrote, the Center for Medical Progress “tend to misstate the conversations that occurred or omit the context of those statements.” In one instance, a doctor whom Daleiden accused of being willing to change abortion procedures to ensure better tissue specimens, possibly putting a patient at risk, had actually said, “Right now my only concern is the safety of the woman.”
Another attendee at a NAF conference stated clearly, “No profiteering or appearance of profiteering … We need it to be a donation program rather than a business opportunity.”
Daleiden and fellow defendant Troy Newman of Operation Rescue, who recently resigned as a Center for Medical Progress board member, argue that the videos are in the public interest and show potential criminal wrongdoing. Orrick responded in his order, “I have reviewed the recordings relied on by defendants and find no evidence of criminal activity…. And I am skeptical that exposing criminal activity was really defendants’ purpose,” because the anti-abortion group only belatedly and partially provided some of their recordings to law enforcement.
Finally, in blocking the release of the NAF recordings on a prelimary basis, pending a trial, Orrick pointed out that Daleiden and his associates had signed confidentiality agreements that said they would be subject to a court if they violated them. There was more: As a result of the videos that already have been released, Orrick said, there has been a “documented, dramatic increase in the volume and extent of threats to and harassment of NAF and its members.”
Vicki Saporta, NAF's president, told MSNBC of that harassment, "No matter how many staff members I put on this, we couldn't keep up with the threats. We had to hire an outside security firm to monitor this 24/7." Overall, abortion providers have said threats against their health centers have increased nine-fold since Daleiden began releasing videos in July.
In November, police say Robert Lewis Dear killed three people at a Colorado Springs Planned Parenthood clinic, and law enforcement sources told NBC News he had referred to "no more baby parts," echoing Daleiden's videos and press releases. Dear has called himself a "warrior for the babies."
The medical director of the Planned Parenthood in Colorado Springs was among those secretly recorded by Daleiden.
Saporta told MSNBC that the medical director had been forced to move out of her house, that she "doesn't think she can ever move back into her house, and she'll have to sell it."
In December, Scott A. Orton was charged with a federal offense of transmitting interstate threats after NAF reported him for allegedly leaving a comment on a Fox News story threatening to kill a fetal tissue procurement executive secretly recorded by Daleiden. Orton allegedly wrote, “The management of StemExpress should be taken by force and killed in the streets today. Kill StemExpress employees. I'll pay you for it.”
"One person we uncovered called on his supporters to burn down every clinic in the country," said Saporta. "After that, there were four arsons within three months."
Saporta said she believed that more criminal charges for Daleiden could come. "We believe there is an ongoing investigation in California," she said. (In July, California Attorney General Kamala Harris announced she would look into whether Daleiden's group had broken the law, but there have been no further announcements.)
"I certainly hope there are other jurisdictions that hold him responsible."'
"I certainly hope there are other jurisdictions that hold him responsible," Saporta said, adding, "I don't know why he thought he was going to get away with the fraudulent activity and that one would be willing to hold him accountable."
Despite the setbacks, there's no reason to count Daleiden and the Center for Medical Progress out yet. His supporters, including Republican presidential candidates, have condemned the Texas indictments, claiming bias. The district attorney of Harris County, Devon Anderson, ran in 2014 as a "proud, pro-life Texan mother of two," and was endorsed by Texas Right to Life. Daleiden's supporters have pointed out that another prosecutor in Anderson's office was an uncompensated Planned Parenthood board member, but Anderson said in August that the prosecutor, who had voluntarily disclosed the connection, would not be involved in the case in any way.
Thanks to Daleiden's efforts, a Benghazi-style committee has been convened in the U.S. House of Representatives, promising to keep the videos in the headlines for even longer. State legislators are still citing the videos in efforts to defund Planned Parenthood from providing women's health services, including in an Ohio bill that Gov. John Kasich is expected to soon sign. Many people may simply remember that Planned Parenthood was accused of trafficking in fetal parts without knowing much about what followed the accusation.
On Monday, the Center for Medical Progress showed it had no intention of backing off. It released footage of NAF staffers, including of Saporta giving a public speech, that wasn't blocked by the court's injunction. (Saporta called it a "total retribution for our win on Friday night.") In a release accompanying the videos, the Center for Medical Progress said, "The fact is, the National Abortion Federation is a key accomplice in Planned Parenthood and StemExpress’ scheme to profit off baby body parts, and for this reason they are desperate to suppress the freedom of the citizen press and cover up the evidence of their illicit dealings.”
For abortion providers and for Daleiden, none of this is over yet.