Anti-Abortion Groups Surveil Planned Parenthood: Misuse of the First Amendment

Source: The Washington Post via Getty Images File

By Paula Vekker

Paula Vekker is a Sophomore at the University of Pennsylvania majoring in Political Science with a concentration in American Politics. 

The conflict of opinion between pro-life and pro-choice groups is unwavering and has only been exacerbated after the Supreme Court overturned Roe v. Wade. On October 12, 2023, the U.S. Supreme Court rejected a request by anti-abortion activists to have more than $2 million in damages they were ordered to pay Planned Parenthood dismissed.

The defendants, the Center for Medical Progress and the organizer's founder, David Daleiden, were accused of conspiracy, eavesdropping, and various other offenses. [1] The justices denied the Center for Medical Progress and David Daleiden's appeal of a lower court ruling in 2022. The appeal upheld the majority of the damages in a lawsuit brought by Planned Parenthood, a provider of abortion services and women-identifying healthcare. [2]

The defendants claimed that they were expressing their First Amendment right to free expression by using the covert recording, but this claim was dismissed. Court documents state that staff members planned and attended lunch meetings, visited health clinics with Planned Parenthood workers, and used fictitious driver's licenses, among other tactics, to infiltrate National Abortion Federation conferences that the organization held or attended. [3]

They secretly videotaped Planned Parenthood employees during these sessions for a year and a half, after which they posted altered footage of the talks online. The defendants, according to Planned Parenthood, are "ideological activists" rather than journalists, and their films were substantially distorted as part of a smear campaign meant to demolish the organization. [4]

In 2015, the Center for Medical Progress published covertly taped footage of abortion providers allegedly engaging in the illegal sale of aborted fetal tissue for profit. This led to massive controversy, congressional probes, and state-level investigations. [5] Planned Parenthood denied making money off of the donation of fetal tissue for scientific purposes. Lower courts concluded that there was no indication of misconduct in the footage. After a jury ruled in favor of Planned Parenthood, the court granted $2.4 million in damages, which included security expenditures to stop future infiltration and targeting of physicians and staff members. [6]

The 9th U.S. Circuit Court of Appeals in San Francisco affirmed the majority of the verdict last year, finding that the First Amendment did not protect the defendants. The court concluded, "Journalists are not exempt from the laws of general applicability from their First Amendment right to gather news within legal bounds." The court ruled that the First Amendment doesn’t grant permission for someone to trespass, steal, or break into another person's house or place of business via technological methods. [7]

Acts of aggression against medical facilities that offer reproductive care are not new. Statistics concur on incidences of property damage, intimidation techniques, interfering with services, harassing physicians, and preventing patients from accessing abortion care. A substantial rise in stalking (600%), blockades (450%), hoax devices/suspicious parcels (163%), intrusions (129%), assault and violence (128%), and other crimes have been documented and rising since 2021, according to data from the National Abortion Federation. [8]

Anti-abortion groups such as "The Center For Medical Progress," "Live Action," and "Operation Rescue" target reproductive services like Planned Parenthood because they are a major provider of abortion services in the United States. As a force in support of reproductive health, Planned Parenthood frequently backs pro-choice politicians and initiatives. They act as stakeholders in democratic legislatures and presidential and congressional campaigns. Critics of abortion who oppose the practice for ethical or religious reasons view targeting Planned Parenthood as a calculated move to address what they consider to be the main problem.

Public financing for Planned Parenthood has been a source of controversy. Despite the Hyde Amendment's prohibition on the use of government funds for abortion operations, anti-abortion organizations contend that public dollars shouldn't be used to support an institution that represents pro-choice ideologies. [9] The 2015 surveillance controversy fueled criticism and contributed to the targeting of Planned Parenthood by anti-abortion groups.

The rigid relationship between pro-life and pro-choice advocacies continues to be addressed on a judicial platform. The unlawful surveillance of Planned Parenthood by opposition groups showcases the level of polarization embedded in bodily autonomy. These acts may deter women from relying on organizations like Planned Parenthood to keep their health care private. The Center for Medical Progress's attempt to validate its actions by employing the First Amendment ultimately lacked a tangible legal framework. Yet, the Center's behavior disrupted the trusting symbiosis between healthcare institutions and patients.

[1] Planned Parenthood. “The Fanatical Crusade Against Planned Parenthood: Decades of Doctored Videos, Failed Entrapments, and False Accusations.” PlannedParenthood.org, 2103. https://www.plannedparenthood.org/files/4814/4710/8959/The_Fanatical_Crusade_Against_Planned_Parenthood.pdf.
[2] Vogue, Ariane de. “Supreme Court Declines to Take up Appeal from Anti-Abortion Group That Secretly Recorded Clinics | CNN Politics.” CNN, October 2, 2023. https://www.cnn.com/2023/10/02/politics/abortion-activists-secretly-recording-clinics-planned-parenthood-supreme-court/index.html.
[3] Planned Parenthood Federation of America Inc. V Center for Medical Progress (https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/21/20-16068.pdf. October 21, 2022).
[4] Chung, Andrew. “US Supreme Court Rebuffs Dispute over Videos Targeting Abortion Providers.” Reuters, October 2, 2023. https://www.reuters.com/legal/us-supreme-court-rebuffs-dispute-over-videos-targeting-abortion-providers-2023-10-02/#:~:text=WASHINGTON%2C%20Oct%202%20(Reuters),illicit%20sale%20of%20aborted%20fetal.
[5] Kurtzleben, Danielle. “Planned Parenthood Investigations Find No Fetal Tissue Sales.” NPR, January 28, 2016. https://www.npr.org/2016/01/28/464594826/in-wake-of-videos-planned-parenthood-investigations-find-no-fetal-tissue-sales.
[6] “Planned Parenthood: Fact V. Fiction.” House Committee on Oversight and Reform, January 3, 2018. https://oversightdemocrats.house.gov/planned-parenthood-fact-v-fiction.
[7] Dinzeo, Maria. “Ninth Circuit Finds Abortion Foe’s Undercover Tactics Not Protected by First Amendment.” Courthouse News Service, October 21, 2022. https://www.courthousenews.com/ninth-circuit-finds-abortion-foes-undercover-tactics-not-protected-by-first-amendment/.
[8] Fowler, Melissa. “National Abortion Federation Releases 2021 Violence & Disruption Report.” National Abortion Federation, December 8, 2022. https://prochoice.org/national-abortion-federation-releases-2021-violence-disruption-report/.
[9] Parenthood, Planned. “Hyde Amendment.” Planned Parenthood Action Fund, n.d. https://www.plannedparenthoodaction.org/issues/abortion/federal-and-state-bans-and-restrictions-abortion/hyde-amendment.
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