New California law protecting Planned Parenthood may “silence whistleblowers”


A few weeks ago, California Governor Jerry Brown signed AB 1671 into law, criminalizing the recording or distribution of conversations with healthcare providers. Becausing existing laws in California already criminalize recording private conversations, many view the bill as an assault on journalism and free speech.

The California Family Council previously urged Governor Jerry Brown to veto the bill, saying:

This is an attempt to silence whistleblowers who exposed that [Planned Parenthood was] engaging in exceedingly unethical, if not downright criminal, activity.  Existing California laws already protect confidential speech.  The new crimes, rights of action, and penalties AB 1671 authorizes do nothing to preserve privacy, but a lot to chill free speech and investigative reporting.

John-Michael Seibler, a legal fellow in The Heritage Foundation’s Center for Legal and Judicial Studies, says the California law is an example of “overcriminalization.” He writes:

Overcriminalization occurs when lawmakers try to punish people who make mistakes — often without any intent of breaking a law — with harsh criminal penalties. It’s a mindset that has helped create almost 5,000 criminal laws — and 300,000 regulations carrying criminal penalties — at the federal level alone….

[T]he law effectively criminalizes whistleblowing by “a patient who sees her doctor handing out opioid prescriptions like candy, or a farm worker who catches a veterinarian approving a sick cow for the slaughterhouse….”

Planned Parenthood’s success at raising the criminal penalties and civil liability of potential undercover journalists and whistleblowers will likely embolden other politically favored groups to abuse criminal law by urging lawmakers to craft new criminal laws designed to cater to and protect them.

But Planned Parenthood developed the bill to provide itself protection from bad publicity — like what resulted from undercover videos from Orange County-based Center for Medical Progress, released in the summer of 2015. The videos feature high-ranking Planned Parenthood employees haggling over prices for fetal specimens as well as describing altering abortion procedures to obtain more intact fetal body parts for tissue procurement agencies. At a business lunch meeting with CMP investigators David Daleiden and Sandra Merritt, Dr. Deborah Nucatola, senior director of medical services for Planned Parenthood Federation of America, remarked over wine and salad: “We’ve been very good at getting heart, lung, liver, because we know that, so I’m not gonna crush that part, I’m gonna basically crush below, I’m gonna crush above, and I’m gonna see if I can get it all intact.” In another video, Planned Parenthood’s Dr. Mary Gatter haggled with undercover investigators over the price per fetal specimen, insisting, “You know in negotiations the person who throws out the figure first is at a loss, right?” and laughing, “I want a Lamborghini.”

The first video, featuring Dr. Nucatola, received over 1 million views on YouTube in the 24 hours after it was posted. Two days later, PPFA president and CEO Cecile Richards posted her own video apologizing for Nucatola’s “tone and statements,” and claiming the fetal body parts were used for “life-saving” research. Over a year later, none of Planned Parenthood’s representatives have come forward to either correct or disavow their remarks, and Planned Parenthood has repeatedly claimed that the videos (all available in full footage here) were “deceptively edited” or “faked” — a claim which was disproven by two independent forensic analyses. It is unclear whether Planned Parenthood has allowed the videotaped representatives to continue to work in their same leadership capacities.

Given “the tremendous wildfire nature in which news can be spread now through social media, we need to have a crime against distribution by those in particular who did the illegal recording,” said Beth Parker, chief legal counsel of Planned Parenthood Affiliates of California.

It appears that instead of apologizing and firing the employees featured in the undercover videos, Planned Parenthood has pushed for unnecessary laws to punish people who come forward as whistleblowers. The result is AB 1671.

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