The long red robes and white bonnets could have been mistaken for those of the Amish. But instead of buggies driven by horses, they climbed out of buses and Lyfts, with placards stating, “Keep Abortion Safe & Legal.” These modern-day handmaids were were out in support of their reproductive rights — specifically, to take a stand against two anti-abortion activists who have been charged with violating state law by filming abortion advocates and providers without their permission. The theatrical protest was eye-catching, making an uncomfortable connection between Margaret Atwood’s dystopian novel The Handmaid’s Tale and the threat women face in losing their reproductive rights.
David Daleiden and Sandra Merritt made headlines in 2015, after a video surfaced in which Planned Parenthood employee Dr. Deborah Nucatola disclosed how the reproductive-health organization provides researchers with organs and tissue from aborted fetuses. Depending on how much context was provided, the video appeared damning: In it, Nucatola calmly eats a salad while discussing aborted fetus livers with who she was told were potential buyers for a human biologics company. This undercover tactic was repeated for years — and by the time they were discovered, Daleiden and Merritt had collected more than 44 hours of footage from meetings with Planned Parenthood and National Abortion Federation employees in Baltimore and San Francisco.
According to Daleiden’s anti-abortion group, the Center for Medical Progress, the footage provides evidence that Planned Parenthood is turning a profit on aborted fetuses. Planned Parenthood adamantly refutes that claim, and says that while they do occasionally — with permission from the patient — release tissue and organ samples to researchers, they do not profit from the transaction.
But for California Attorney General Xavier Becerra — who took over the case from Kamala Harris upon her election to the Senate, filing 15 felony charges against Merritt and Daleiden in March — there is more at stake than the “yes you do”/ “no we don’t” argument surrounding fetal-tissue sales. What’s more damning in this case, Becerra argues, is the illegal filming of the victims.
“The right to privacy is a cornerstone of California’s Constitution, and a right that is foundational in a free, democratic society,” Becerra says. “We will not tolerate the criminal recording of confidential conversations.”
Fourteen of the felony charges represent a victim, whose names have been kept confidential in the proceedings for their protection. The 15th is for conspiracy.
The case has yet to go to trial, but it’s already become a complicated battle in the courts. Merritt, blonde, stout, and grandmotherly, is represented by Horatio Mihet, a senior attorney with Christian ministry firm Liberty Counsel. Daleiden, well-dressed and always with a slight smile on his lips, has former Los Angeles County District Attorney Steve Cooley and former Los Angeles Deputy District Attorney Brent Ferreira on his team — an unusual powerhouse, particularly since Cooley was a well-known prosecutor who seldom dabbled in defense.
And thus far, the charges have not been easy to stick on the defendants. In June, presiding Judge Christopher Hite dismissed all counts except for conspiracy, on the grounds that they were not specific enough. The California Attorney General’s office scrambled and refiled them nine days later to Hite’s approval. Both Merritt and Daleiden’s counsel have since attempted to dismiss the charges, but after a back-and-forth last week — a fierce dialogue that resembled Law and Order — Hite rejected their appeal.
For reproductive-rights advocates, Hite’s move counted as a win.
“Today’s decision to move forward with the criminal case is a clear victory for those of us who believe in the courts and the laws of California,” Crystal Strait, president and CEO of Planned Parenthood Affiliates of California tells SF Weekly. “The illegally obtained and maliciously edited video smear campaign launched by anti-abortion operatives threatened the safety and health of our patients and staff. The decision is another step forward for us, allowing Planned Parenthood to focus on providing preventive and reproductive health care to close to one million Californians every year.”
But the battle is far from over. Merritt’s lawyers have attacked the prosecution for misfiling charges. (They filed paperwork that named her, but in Daleidin’s case file — which, despite her lawyers’ arguments, Hite said was good enough to continue with the case.) Based on this confusion, her defense refused to enter a plea.
“We believe that the court was wrong both on the facts and on the law, with respect to the dismissal. We intend to take an immediate appeal of the decision today,” Mehit told SF Weekly.
“We believe that Ms. Merritt’s rights will be vindicated and that the political prosecution that has been brought against her will be derailed.”
Unlike his cohort, Daleiden’s charging paperwork was in order, and his defense pleaded not guilty. At a press conference following the hearing, the lawyers defended Merritt and Daleiden’s actions. The recordings, they said, were undertaken as citizen journalism, in an attempt to reveal a crime. As Merritt stood nearby, proudly holding a copy of Milo Yiannopoulos’ book Dangerous open to a chapter about free speech, Mehit blasted the judge’s refusal to dismiss the charges.
“In the entire history of the state of California, there has never been a case like this brought against a journalist, against the whistleblower,” he said. “It’s always the criminal targets that are prosecuted. There’s a long history of undercover journalism in this state. For example, undercover journalists exposing cruelty to animals or unsanitary conditions at a meatpacking plant or supermarket. Never has the state gone after the undercover journalist. This is the first time that this has happened. And we know why this has happened here: it’s because Planned Parenthood entreated and directed the Attorney General to start the investigation.”
Ferreira took a similar stance. “An absolute defense to that law is that you can record anything you want in a public place, and all of these recordings were made in extremely public places, the St. Francis Hotel, hallways, meetings rooms of the hotel,” he said. “There’s no case here.”
Despite their loss, the anti-abortion advocates who rallied on the steps of the Hall of Justice after the trial were jubilant. When Daleiden took the microphone, he was greeted with cheers, and a woman shouted, “We love you!”
“I love you, too,” he said, before reiterating that the battle was a coordinated and corrupt political attack. “What Sandra and I both did is no different from what local-news outlets do every single day here in the state of California, when they go undercover and publish undercover hidden-camera news stories on issues all across the state, every day, every week, every month.
“What we do is no different than what those established news journalists do,” he added. “The only difference is that we recorded and we exposed the sacred cows of the California political establishment: Planned Parenthood, the National Abortion Federation, and their allies and proxies.”
For now, the charges have stuck — which means Daleiden and Merritt will no doubt be back in San Francisco’s Hall of Justice soon. And the protesting handmaids, originating from a fictional dystopian fundamentalist regime, will meet them on the steps.