Center for Medical Progress Preliminary Hearings: A CTV Analysis
Disclaimer: This article represents CTV’s best attempt to provide a comprehensive overview of the recent hearings of David Daleiden. If you feel that any of the statements below are incorrect or false, please let us know as we continue to strive for factual representation of the truth.
In 2015, reporters David Daleiden and Sandra Merritt of the Center for Medical Progress shocked individuals and politicians alike when they released undercover footage of Planned Parenthood and affiliates discussing the sale, use, and transmission of aborted human body parts. Since the release of those videos, hearings in congress ignited a firestorm of debate over the sanctity of human life and how far the government should go in providing funding to organizations that take part in abortion procedures.
Since those videos were released Daleiden and Merritt have been actively fighting criminal charges that are being brought against them by the Department of Justice, as they are collectively charged with 15 felonies. These charges stem from an investigation that began shortly after the videos were released, and the pair could be sentenced to up to 10 years in prison if convicted.
In the lawsuit, the state of California alleges that by recording conversations in private, the two violated state privacy laws prohibiting “eavesdropping”. Lawyers advocating for the pair point to the fact that Daleiden and Merritt worked as journalists for years, and they should enjoy protections under the First Amendment as such. During several of the videos, the conversations that took place occurred in public settings, where the speakers did not seem concerned that they were having potentially sensitive conversations in a private workplace. Daleiden and Merritt are the first journalists to ever be charged with criminal offences in California, which makes this case vital to the integrity of the First Amendment.
California law also provides exceptions for instances where the person doing the recording believes that they are collecting evidence to prove an instance of a violent felony. One of the videos that was captured by CMP shows Planned Parenthood providers suggesting that they might be willing to change the process of an abortion procedure to purposefully procure fetal tissue that would be more viable for biomedical buyers. This alteration of the procedure, CMP states, constitutes felony battery in the state of California.
It was revealed during the preliminary hearing that Planned Parenthood providers knowingly provided fetal tissue for sale to several different biotech companies. One such company, StemExpress, admitted under cross examination on September 6 that “[StemExpress] supplies beating fetal hearts and intact fetal heads to medical researchers…” According to Daleiden, he had begun to suspect StemExpress of “homicide” after interviewing a former employee of the company. Furthermore, he discovered that research at Stanford University from 2012 was performed on fetal tissue using the Langendorff Technique. One use of this method requires a beating heart from a live organism and is used primarily for research and observation of the heart. For this technique to be successful, the heart is removed (usually from an animal) and perfused (given an oxygenated blood supply) so that measurements of heart activity can be made without interference from the rest of the animal. By this admission, the door is opened to the possibility that StemExpress was purposely obtaining fetuses who were viable outside the womb to sell for profit.
One such researcher, Dr. Theresa Deisher, was brought in to testify on behalf of the defense but faced opposition from the prosecution before even beginning her testimony. It was suggested that she might need to seek legal council because the attorney general’s office was considering charges against her. Defense attorneys accused the attorney general’s office of attempting to intimidate their witness by threatening dubious prosecution if she were to testify. Dr, Deisher is a stem cell researcher at Stanford University who helped Daleiden and provided him with scientific information about stem cell research and tissue usage.
During her testimony, Dr. Deisher explained to the court the process that would be required in order to obtain a heart suitable for the methods used by Stanford. She noted that “To be harvested, a heart “has to be beating and be arrested in a relaxed position” by perfusing it with a potassium solution”. Once researchers are ready to use the organ, it can be restarted using electrical stimulus and could be used in conjunction with the Langendorff.
According to testimony given by California Department of Justice special agent Brian Cardwell, the initial request for prosecution of the Center for Medical Progress came from the top. He stated “[former US attorney general] Lynch sent a letter to California Attorney General Kamala Harris asking that David Daleiden and Sandra Merritt of the Center for Medical Progress be investigated.” However, it soon came to light several days later that Agent Cardwell had “misspoke” and the letter did not come from the US attorney generals office, but from four members of congress, meaning that the investigation was ordered from the office of Kamala Harris. Peter Breen, of the Thomas More Society mentioned that “”during this case about a meeting that the heads of Planned Parenthoods had, with Kamala Harris in her office right around the time that Attorney General Harris was approving a search warrant [on] David’s apartment…”” While details of the case are still emerging, it would appear as though the charges being leveled against the pair is part of a political prosecution rather than criminal.
Agent Cardwell’s testimony also suggests the failure of the California DoJ to properly investigate the legal implications of the case against Daleiden and Merritt before taking action. Furthermore, it can be concluded from his statements that the California DoJ failed to authenticate statements by the victims, and instead took their word at face value up to the point of using those statements as evidence to sign for arrest warrants. Contributing to this failure was the lack of effort made to determine if the communications that are being used as the basis for the prosecution were confidential. Deputy Attorney General Johnette Jauron maintained that they were unaware of any definition of “confidential communication.” This is unprecedented, considering the prosecution’s case quite literally rests on the fact that the CMP videos were taken of “confidential communication” without the victims knowledge.
Smear tactics used against Daleiden and Merritt were widely used by certain members of the media, accusing the Center for Medical Progress of doctoring or editing the videos. While shorter clips circulated on social media, longer versions were made available. Texas took note of these videos and saw that some providers who operated within the state were featured in one of CMP’s videos. Used as evidence to terminate certain state funding from Planned Parenthood, the organization then sued the state. A US 5th Court of Appeals ruling found that the state of Texas made an accurate judgement when it used the videos as evidence of Planned Parenthood providers abuse of medical discretion.  This only adds credence to the fact that Planned Parenthood violated, at a minimum, federal laws governing procurement of tissue for research.
While the preliminary hearing was still taking place, fact checking website Snopes.com released a “fact check” regarding claims by pro-life media about the admissions of a witness in court. Snopes attempts to discredit the defense by implying that the story published by LifeSite News was false based on the connection that the hearts were not beating when they arrived in the hands of researchers. Snopes also cites a report initiated by the California DoJ as evidence that the news coverage of the testimony by the StemExpress executive created a security risk. However, two things stand out about this report. First, the agent assigned to investigate any credible threats on the witness was Brian Cardwell, the previously mentioned agent who was tasked with investigated Daleiden and Merritt. His involvement in the case could be nothing more than normal procedure, but it seems odd to the outside observer that he would be tasked with investigating a claim around the same case he has testified in. Second, the report was used partly as the basis for the attorney general to request a gag order on proceedings inside the courtroom. Unfortunately for the prosecution, the report merely cites the aforementioned article and vague claims by the witness that she was harassed.
Federal law places a variety of restrictions on the procurement of fetal tissue for research and stipulates that it must, like all other medical tissue, be donated rather than sold for profit. In its ruling, the 5th Circuit noted the following laws: 42 U.S.C. § 289g-1(c)(4 places limitations on researchers or individuals who would receive the tissue and that they cannot receive the tissue unless they “has had no part in any decisions as to the timing, method, or procedures used to terminate the pregnancy made solely for the purposes of the research.” 45 C.F.R. § 46.204(I stipulates that “…individuals engaged in the research will have no part in any decisions as to the timing, method, or procedures used to terminate a pregnancy…” Finally, 42 U.S.C. § 289g-1(b)(2)(A)(ii) states that “…no alteration of the timing, method, or procedures used to terminate the pregnancy was made solely for the purposes of obtaining the tissue…” Regarding these laws, the 5th Circuit observes “The plain purposes of the regulations are to prevent conflicts of interest between the researcher and patients and to eliminate any temptation to place research studies above the patients’ medical needs.”
All this evidence points to the conceivable conclusion that Planned Parenthood and its affiliates violated federal, and possibly state law in those states where it was implicated. David Daleiden and Susan Merritt are currently facing charges for bringing to light unethical and hypothetically illegal practices that violate the trust of their patients when a consent form authorizing an abortion is signed. California is attempting to prosecute them for recording activities that portray individuals and organizations in an unfavorable light who had ties to the state justice department, turning this case into a political witch hunt. By obtaining evidence that Planned Parenthood was serving monetary interests by supplying live fetuses and ensuring that a fetus would remain as intact as possible, the Center for Medical Progress has exposed the activities Planned Parenthood engages in.
Freedom of speech and a basic human right to live are both guaranteed in the Constitution, but both appear to be absent where such horrific practices continue to thrive.
 42 U.S.C. § 289g-1(b)(2)(A)(ii) http://www.ca5.uscourts.gov/opinions/pub/17/17-50282-CV0.pdf
 5th Circuit, Ibid.