David Daleiden, the undercover journalist behind the 2015 Planned Parenthood videos, has appealed to the US Supreme Court for the release of more undercover footage from National Abortion Federation conventions.  

“We are appealing to the highest court in quest of justice,” Tom Brejcha, president of the Thomas More Society, which is representing Daleiden in court, stated Friday.

“This lawsuit was brought against Mr. Daleiden by National Abortion Federation, the abortion industry’s trade group, because he dared to expose the truth about their members’ profiting from an illegal trade in the remains of human beings,” Brejcha said Aug. 4. “But what is ultimately at stake here is whether those who ‘blow the whistle’ on illegal or inhumane misbehavior in any industry may be silenced and even punished for telling the truth to the public at large and to those charged with enforcing criminal and regulatory bans on nefarious practices.”

Daleiden is the project lead at the Center for Medical Progress, a citizen journalist group that has worked to document the role of Planned Parenthood, other abortion providers, and tissue procurement companies in the trade of body parts of aborted babies.

Beginning in July 2015, CMP began releasing undercover footage of Planned Parenthood officials and current and former employees of the company StemExpress, which obtained fetal tissue from Planned Parenthood clinics for compensation. The journalists posed as representatives of a fetal tissue procurement company and discussed prices for fetal tissue of aborted babies with Planned Parenthood officials. The officials also described the gruesome practice of abortion procedures and of obtaining the tissue from aborted babies.

Federal law allows for reasonable compensation to clinics for fetal tissue of aborted babies used for research purposes. The amount of compensation cannot be for “valuable consideration,” but can only cover operating costs like preservation of tissue and transport.

Daleiden’s group had more undercover footage taken at 2014 and 2015 National Abortion Federation conventions which CMP gained access to by paying the admission fees and providing false personal identifications and the name of a non-existent medical supply company. NAF filed a suit to prevent Daleiden from releasing the footage to the public, alleging a breach of contract that attendees could not publish undercover footage of the convention. CMP, meanwhile, said convention proceedings were not secret, in that hotel staff were privy to conversations and speeches yet they did not have to sign confidentiality agreements.

An emergency “gag” order by U.S. District Court Judge William Orrick III in February 2016 prevented the footage from being released to the public. The judge’s order was extended indefinitely. The U.S. Ninth Circuit Court of Appeals has upheld the lower court’s order. The district court had said that “there is no doubt that members of the public have a serious and passionate interest in the debate over abortion rights and the right to life, and thus in the contents of defendants’ recordings,” but Orrick ruled that to release the footage to the public could result in violence against abortion clinics in retaliation for the content in the videos.

Then in May, CMP released footage from the NAF conventions in Baltimore and San Francisco. Attendees were shown to be casually discussing how they encountered fetal body parts like eyeballs and skulls in abortion procedures. Footage also showed Planned Parenthood officials discussing monetary compensation for fetal tissue from aborted babies, and attendees apparently admitting to performing illegal partial-birth abortions.

In response, Orrick held Daleiden in contempt of court and fined him, CMP, and his lawyers $136,000 for releasing the footage that was held under the gag order. CMP said the footage was “the same video evidence” as “the California attorney general is using in his prosecution [against Daleiden].”

In its appeal to the Supreme Court, the center said that the order barring the release of the videos was “imposed specifically for the purpose of hiding information from the public, precisely because the information is of such significant public interest and concern — the procurement and sale of aborted fetal body parts.” The Ninth Circuit’s upholding that order, CMP said, was unprecedented in that it barred “the publication of information of legitimate public interest, based solely on the private agreement of parties.”

Furthermore, in upholding the lower court’s order, the Ninth Circuit used a standard of review “patently inconsistent with this Court’s established First Amendment jurisprudence.”