California Prosecutors Don’t Have A Case Against Planned Parenthood Whistleblowers

California Prosecutors Don’t Have A Case Against Planned Parenthood Whistleblowers

The state's attorney general refuses to protect the rights of the unborn, while giving special rights to pro-abortion corporations.
Jenna Ellis

California prosecutors have charged pro-life activists David Daledien and Sandra Meritt with 15 felonies of invasion of privacy, related to their undercover videos of Planned Parenthood last year.

Fourteen of these charges are filed under California Penal Code Section 632, which criminalizes recording confidential communication without consent of all parties. It’s clear that the Planned Parenthood representatives did not know they were being recorded, but the law still requires a confidential communication.

Section 632 provides a definition of confidential communication, which states in relevant part (emphasis added):

The term ‘confidential communication’ includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering

California law specifically excludes communication made in a public gathering, which is exactly the circumstances of a conversation held in a public restaurant. Because wait staff and other patrons could easily overhear a conversation in public, the parties cannot have what the law terms a “reasonable expectation of privacy” in those circumstances. Clearly, those videos from Planned Parenthood were not criminal recordings.

What About The Recordings Inside Planned Parenthood?

What about the recordings inside Planned Parenthood?

California Attorney General Zavier Becarra said of the charges against Daledien and Meritt, “The right to privacy is a cornerstone of California’s Constitution, and a right that is foundational in a free democratic society.” He added, “We will not tolerate the criminal recording of confidential communication.”

However, the Ninth Circuit, whose jurisdiction includes California, has repeatedly affirmed that privacy is an individual right that cannot be asserted by a corporation. The Ninth Circuit recently held, “This common-sense notion that privacy is an aspect of one’s personal life is reflected in the law,” in a case that contemplated very similar facts: undercover journalists posing as were invited into the laboratories and administrative offices of a medical company and recorded the conversations without the company’s consent.

The Ninth Circuit noted that because the conversation did not involve any details about the doctor’s private and personal affairs, there was no reasonable expectation of privacy in the contents of the business conversation, even behind closed doors. The Ninth Circuit held, “The expectation of limited privacy in a communication … is reasonable only to the extent that the communication conveys information private and personal to the declarant.”

The court also cited two California Supreme Court opinions addressing the interest in limited privacy, saying those cases “are illustrative of this point”—that the communication must be personal and private to the individual making the statement. Business discussions by medical staff of Planned Parenthood are not communicating personal and private information about the staffer himself.

There Was No Underlying Criminal Conduct

Further, the conversation with Planned Parenthood is not protected by HIPAA (the federal Health Insurance Portability and Accountability Act of 1996) for precisely the same legal reasons: the right to privacy in medical records is held by an individual person not a medical corporation or its staff. Planned Parenthood cannot assert any individual rights in the information because it is the patient’s right.

For the fetal tissue, California law does not recognize a fetus as a person for purposes of possessing rights, so there is no more right to privacy established to begin with than if the conversation were discussing car parts. If California law recognized a fetus as a person with full rights, then the right to privacy would be owned by the unborn child, not Planned Parenthood.

The final charge is conspiracy, which requires conspiring to commit an act that is criminal. For example, you might “conspire” with a friend to throw a surprise birthday party. You and your friend would not be charged with criminal conspiracy because a surprise party is not a criminal act. If there was no underlying criminal conduct in recording Planned Parenthood, then there was no criminal conspiracy.

For all of these reasons, any lawsuit alleging violation of a right to privacy really should be brought by the unborn child, not Planned Parenthood—and certainly not by an over-zealous government that on one hand refuses to protect the rights of the unborn child, and on the other seeks to give special rights to corporations when the news gathering of an undercover journalist goes against the liberal pro-abortion agenda.

Jenna Ellis is a constitutional law and criminal defense attorney, a law professor at Colorado Christian University, where she directs the legal-studies program, a fellow at the Centennial Institute, and the author of "The Legal Basis for a Moral Constitution."

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