This column by ACRU Policy Board member Hans von Spakovsky was published January 26, 2016 by The Daily Signal.
In an astonishing bit of legerdemain, a local grand jury in Harris County, Texas, has refused to indict Planned Parenthood for violating a Texas statute that prohibits the attempted sale of human organs, despite the video evidence to the contrary showing Planned Parenthood doctors and executives discussing organ sales.
But the very same grand jury has indicted David Daleiden, the founder of the Center for Medical Progress (CMP), who organized, filmed, and released the undercover 60 Minutes-style videos, for supposedly violating the very same Texas statute, which also prohibits the attempted purchase of human organs.
In other words, a private individual whose only intent is to expose possibly illegal activity is under indictment for actions in connection with an undercover video operation, but the illegal actor itself — Planned Parenthood — is off the hook. This backward situation will undoubtedly chill journalistic activity in Texas and elsewhere.
According to copies of the two charging sheets filed with the Harris County Clerk’s Office that we obtained, Daleiden and his colleague, Sandra Merritt, were also indicted for tampering with a governmental record — specifically, making and presenting a falsified California driver’s license, which is a felony.
The charging sheet for the organ purchase violation is based on the Texas Penal Code §48.02: Prohibition of the Purchase and Sale of Human Organs.
A violation occurs if a person “knowingly or intentionally offers to buy, offers to sell, acquires, receives, sells, or otherwise transfers any human organ for valuable consideration.” This is a misdemeanor charge, and there are various exceptions, such as for “reimbursement of legal or medical expenses incurred for the benefit of the ultimate receiver of the organ.”
The undercover videos that CMP released certainly seem to show that Planned Parenthood employees were trying to receive much greater compensation for the organs of aborted babies than a simple reimbursement of costs. They talk about getting “top dollar” and discuss different prices for various organs. Handling and transportation costs are not going to change whether you are harvesting — what a euphemism for what is really going on — a liver or a heart.
You even have one Planned Parenthood executive caught saying she needed to get the right price for aborted organs because she wants “a Lamborghini,” which, if it was a joke, was an atrocious one.
The point, however, is that if the grand jury believes that Daleiden should be charged with offering to buy a human organ, based on the videos, it almost inconceivable that the same grand jury would not also conclude that Planned Parenthood should be charged with violating the same statute by offering to sell him human organs. The entire context of the video involves a complicated haggling process, but only one of the two parties appears to actually intend to go through with the illegal sale — and that party is Planned Parenthood.
Crucially, the Texas statute also has a clear intent standard: A violation requires the grand jury to find that CMP made its offer to buy “knowingly and intentionally.” Given that the grand jury knew that all of these videos were part of an undercover sting operation intended solely to show what Planned Parenthood was doing; that CMP was not actually in the business of purchasing organs like one of Planned Parenthood’s other partners, StemExpress; and that it was a fake offer, how could the grand jury possibly conclude that this intent standard was met? It is highly likely that no reasonable jury would ever convict under these admittedly unusual factual circumstances.
This indictment also sets a terrible precedent.
Over the past decades, there have been countless undercover video operations conducted by major news organizations at ABC, NBC, CBS, Fox News, CNN, and others, as well as local at news stations all over the country. Today, the Internet has made it possible for citizen-journalists and investigators to employ the same techniques to expose wrongdoing without the need for the major resources required by shows like CBS’s 60 Minutes.
While this is not the case with the Texas statutes at issue, there are even some federal laws that encourage this type of behavior. For example, Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act) authorizes private undercover testers and sponsoring organizations to recover damages if they discover discriminatory racial treatment in housing, even if they had no intention of moving in, or used fake identities (tampering with a government document!), or even if the conduct was illegal under state law!
Usually, a black individual or couple poses as prospective tenants in order to uncover racist housing policies. Should these individuals, reporters at major news operations, and citizen-journalists be treated as criminals or held civilly liable if they used a fake ID to expose wrongdoing? We should be encouraging undercover operations that root out illegal behavior, not criminalizing them.
Law professor Ron Rotunda, an expert on legal ethics who holds the Henley Chair and is a distinguished professor of jurisprudence at Chapman University, told us that Texas Gov. Greg Abbott should stop this abusive prosecution by pardoning the two defendants and then ask that a new prosecutor investigate Planned Parenthood’s apparent trafficking in body parts.
Ken Paxton, Texas’ attorney general, has already announced that the state’s investigation of Planned Parenthood and the “shameful disregard for human life of the abortion industry” is ongoing.
What we do know is that there are a lot of unanswered questions regarding the possible bias of the Harris County district attorney’s office, and its apparent fixation on prosecuting citizen-journalists rather than the malfeasance they exposed.