Life Legal’s petition for review of the 9th Circuit’s decision in National Abortion Federation v. Center for Medical Progress is moving forward in the U.S. Supreme Court.
Earlier this week, the Court requested additional briefing from the National Abortion Federation (NAF), an indication of interest in the case from some of the justices. NAF’s brief is due at the end of December, after which Life Legal will file a reply.
The National Abortion Federation (NAF) sued David Daleiden and his Center for Medical Progress (CMP) just weeks after Daleiden released his first video showing Dr. Deborah Nucatola, Planned Parenthood’s Senior Director of Medical Services negotiating the sale of body parts from aborted babies up to five months gestation-all while enjoying her salad and wine.
Over lunch, Dr. Nucatola told Daleiden that when working with a body parts broker seeking specific organs, she will “basically crush below, I’m gonna crush above, and I’m gonna see if I can get it all intact.” She went on to say that when brokers are looking for the intact head of a baby, “some people will actually try to change the presentation,” which is a violation of federal law.
NAF sought a gag order prohibiting CMP from releasing additional footage recorded at its annual conferences, fearing further public scrutiny of the unethical and illegal business practices of its members. Federal judge William Orrick, who previously served on the board of an organization that “partnered” with Planned Parenthood, issued the order.
Orrick held that Daleiden contracted away his First Amendment speech rights when he signed a non-disclosure agreement required by all NAF conference attendees. The disclosure agreement is designed to prevent the public from finding out about the abortion industry’s unveiling of more efficient ways to kill unborn children. NAF faced a public relations disaster after a paper explaining what is now known as partial birth abortion was released in the 1990’s. The paper described how an abortionist “forces the scissors into the base of the skull…and evacuates the skull contents.” That procedure has since been made illegal.
The Ninth Circuit Court of Appeals upheld Judge Orrick’s order without fully reviewing the case, as is required when First Amendment freedoms are at stake.
Life Legal’s Vice President of Legal Affairs, Katie Short, notes that no federal appeals court has ever upheld a gag order that was based on the alleged agreement of the parties to hide information that is of significant public interest and concern.
Even Judge Orrick acknowledged that the public “has an interest in accessing the NAF materials.” Yet he-and the Ninth Circuit in its affirmation of Orrick’s ruling-elected to protect the interests of the abortion industry over the interests of taxpayers who fund Planned Parenthood to the tune of $550 million annually.
The Supreme Court has held the type of gag order issued by Judge Orrick to be unconstitutional prior restraints on speech, holding that prior restraints are “the most serious and least tolerable infringement on First Amendment rights.” The Court has further held that the damage of gag orders “can be particularly great when the prior restraint falls upon the communication of news and commentary on current events,” which is exactly what Daleiden’s videos are.
Quoting other Supreme Court authority, the petition notes that the “dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression…of material that is embarrassing to the powers that be.”
“The abortion industry went after David Daleiden for one reason-to protect the reputation it carefully cultivated in four decades of public deception,” said Life Legal Executive Director Alexandra Snyder. “Our hope is that the Supreme Court will agree that First Amendment freedoms must not be extinguished to remove from public scrutiny issues of fundamental social and political importance.”