Pro-abortion lawyers throw support behind David Daleiden

Two unlikely advocates, both pro-abortion attorneys, called the indictment of pro-life activists David Daleiden and Sandra Merritt “deeply disturbing” and a potential threat to the “vital” work of undercover journalists and activists.

Posing as representatives for a medical research company, Daleiden and Merritt gained access to Planned Parenthood abortion facilities, including Houston’s Planned Parenthood Gulf Coast (PPGC). There they surreptitiously recorded conversations with Planned Parenthood staff, including alleged bartering for the sale of aborted baby body parts, a federal crime. In July, the pro-life activists began releasing the footage in a series of online videos. A resulting investigation into PPGC by the Harris County district attorney resulted in indictments against Daleiden and Merritt. No charges were brought against the Planned Parenthood affiliate or its executives.

Abortion advocates cheered the turn of events. While denouncing the pro-life activists’ efforts to defame the nation’s largest abortion provider, Sherry F. Colb and Michael C. Dorf, both Cornell University law professors, opposed the criminalization of their investigative work.

“Undercover exposés play a vital role in informing the American public of important facts that would otherwise remain hidden,” Dorf and Colb wrote in a Jan. 29 column for CNN.

In deference to the First Amendment’s Freedom of the Press clause, state laws offer limited protection for undercover investigators, whether they are media employees or self-styled journalist activists. There is no such protection at the federal level. The U.S. Supreme Court has ruled the ends do not justify the means—undercover investigators must abide by the law or face prosecution and, possibly, jail.

As part of their undercover investigation, Daleiden and Merritt presented false California ID cards to gain access to the Houston abortion facility. That prompted the felony charge of tampering with a government document. Falsification of a Texas-issued identification is a misdemeanor, while presenting a fake out-of-state ID warrants a felony charge.

Daleiden and Merritt also face a misdemeanor charge for attempting to purchase “fetal remains” in violation of the Texas ban on “the purchase and sale of human organs,” an ironic acknowledgement of the aborted babies’ humanity. But Dorf and Colb note the charge disregards the fact that Daleiden and Merritt had no intention of making a purchase.

The pro-life activists’ tactics replicate those of animal rights activists who disguise their identity and intent to gain access to laboratories, farms, and slaughterhouses, Dorf and Colb note. Both attorneys are animal rights advocates and work for clarity in the law as it relates to undercover investigations.

“Perhaps journalists need special protection so that, in some circumstances, they should be licensed to violate the law,” Dorf suggested in a separate blog.

Even if laws offer limited protection, undercover work requires deception—a problematic matter for Christians.

“I think undercover work is fundamentally different from lying,” Daleiden said in a Jan. 22 interview with Russell Moore, president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission, and Jim Daly, president of Focus on the Family.

Moore and Daly asked Daleiden about his pro-life advocacy at the inaugural meeting of the Evangelicals for Life conference just hours before the annual March for Life rally in Washington, D.C.

“The purpose of the undercover work is actually to serve the truth and to bring greater clarity,” Daleiden said.

To an extent, the Cornell attorneys agree. They said the courts must strike a balance between the public’s right to know and an investigator’s ability to access information without fear of imprisonment: “But the criminal prosecution of Daleiden and Merritt, even if they did break the law, could chill undercover journalists and activists everywhere.”