Late one Friday in July 2015, District Judge William Orrick of San Francisco issued a restraining order blocking the release of undercover videos at the National Abortion Federation (NAF) convention showing Planned Parenthood employees negotiating the sale of aborted fetus body parts. After nearly six years, more than 200 hours of that footage are yet to be seen by the public, but that is now up for deliberation.
Since the first undercover footage was released, The Center for Medical Progress and its founder, David Daleiden, have been fighting legal battles with both NAF and Planned Parenthood Federation of America (PPFA). Luckily for both NAF and PPFA, the federal judge presiding over their cases against Daleiden is more than friendly to their pro-abortion causes.
Orrick was nominated to his position by former President Barack Obama and was a major donor to and bundler for Obama’s presidential campaign. Both Orrick and his wife are longtime donors to San Francisco’s Good Samaritan Family Resource Center (GSFRC), where Orrick was a board member and helped fund and open a Planned Parenthood clinic on its site. That clinic sold fetal tissue to StemExpress, a for-profit wholesaler exposed by CMP’s videos and reporting.
Orrick’s wife is also an outspoken abortion advocate on social media, “liking” pro-abortion groups on Facebook and even “liking” posts calling CMP and Daleiden’s videos “domestic terrorism.” Suffice it to say, Orrick is not an impartial judge on abortion. Despite attempts by Daledien and CMP to have Orrick removed from their cases, Orrick has refused to step down or even disclose his relationship with the Planned Parenthood clinic.
Nearly six years later, Daleiden is still fighting both Planned Parenthood and NAF in court, and two cases in particular have put Orrick in an interesting, if not damning, position.
The first is Planned Parenthood’s $16 million civil lawsuit in which Daleiden and CMP just recently filed an appeal in the federal Ninth Circuit, arguing it should be reversed on First Amendment grounds. What’s curious about this lawsuit, and more importantly, how it differs from NAF’s case against Daleiden, is that Planned Parenthood sued Daleiden for fraud, trespass, unlawful recording, and breach of contract, but not defamation.
Planned Parenthood strategically avoided bringing up the issue of whether the content of the videos was false or defamatory. They never denied the truth of what was revealed in those undercover videos.
NAF is taking the opposite approach. They agreed to drop most of their claims, asking only for a summary judgment on its breach of contract claim and seeking a permanent ban on the videos solely because of the way it will harm their reputation. They believe Daleiden will deceptively edit the footage to lie about abortion practices. Unlike Planned Parenthood, NAF is directly putting at issue the truth or falsity of the videos.
At a recent hearing via video on Feb. 17, Orrick focused on whether he should make a preliminary injunction he issued in 2016 permanent. “The real question I’m interested in is the scope of the injunction,” he said. “I think the general arguments that the defendants have raised against injunctive relief aren’t persuasive.”
In 2016, he justified blocking the release of the videos by claiming the safety of abortion workers (NAF’s members) outweighs Daleiden’s First Amendment rights. Orrick also stated that he reviewed both transcripts and recordings of the videos in question, and determined that he found “no evidence of actual criminal wrongdoing.” But the addition of one of CMP’s witnesses whose testimony was thrown out of the Planned Parenthood case may change that.
Dr. Forrest Smith, an OB-GYN in California who said he’s performed at least 50,000 abortions, was retained by CMP and Daleiden to review their videos and testify that Planned Planned employees violated the medical standard of practice. He took the witness stand in 2019 at the trial of PPFA’s criminal case against Daleiden, testifying that “there’s no question” some of the induced abortions discussed in the videos “were live births.”
In the PPFA civil case, Orrick did not allow Smith to testify because, again, PPFA strategically did not put the veracity of the videos up for debate. Orrick deemed Smith’s testimony unnecessary and his expert report was submitted but never used, and was recently unsealed in late January.
Daleiden and the CMP submitted another even more extensive expert report from Smith in the NAF case, in which he examines videos that have not been released. But because NAF has put the issue of what the videos show at the center of their case, Orrick is not going to be able to keep Smith’s report out the same way he did in Planned Parenthood. Herein lies Orrick’s catch-22.
“Orrick must grapple with Smith’s report in a way that he didn’t have to before,” Daleiden told The Federalist.
The problem for Orrick is that Smith’s expert report directly contradicts what he said in his 2016 preliminary gag order, that he found no “criminal wrongdoing.”
“Here’s a 50-year experienced abortion doctor who’s worked at Planned Parenthood before, who is saying ‘Actually, your Honor, as a professional in this area, I’m telling you this is extremely wrong, extremely unprofessional, extremely unethical, and extremely illegal,'” Daleiden said.
In his recently unsealed report in the PPFA case, Smith found that PPFA abortionists violated standards in obtaining consent from women whose fetal tissue was donated, in the techniques they used to collect the fetus body parts, in the way the clinics accepted payment for the “donations,” and that their procedure resulted in infants being born alive. Although currently sealed, one can presume Smith’s findings submitted in the NAF case are similar.
This pits Orrick, a well-known pro-abortion donor, against one of the country’s longest practicing abortion doctors.
“Is he going to say that he, Judge Orrick, knows better than the abortion doctor, which would show he’s on the side of Planned Parenthood, or is he going to start to liberate some of this footage, which may have consequences for his career as an Obama-appointed judge?” Daleiden said.
During February’s Zoom hearing, Peter Breen, Daleiden’s defense attorney, vice president, and senior counsel at the Thomas More Society, argued that the videos should be made available to police or lawmakers investigating Planned Parenthood, and on top of that, are a matter of “public interest.”
“There’s nothing inconsistent with the court saying ‘I don’t see it but others do’ and certainly the court would not want to stand in the posture of a censor over something that has First Amendment value and public interest value,” Breen said.
Orrick said he found Daleiden’s arguments “unpersuasive,” and seemed to think it was going to be a repeat of his 2016 preliminary injunction, but was also made aware of the issues at play, including Smith’s testimony which previously he was able to avoid.
It remains unclear how, or even when, Orrick will make his decision.