On Monday, the grand jury investigation into the undercover videos made involving the Planned Parenthood Gulf Coast office in Houston released its indictments. It didn’t go as expected. Although the assumption was that the investigation would be looking for criminal wrongdoing on the part of the Planned Parenthood facility and its staff, the grand jury instead charged David Daleiden and Sandra Merritt—the people who made the undercover videos—with tampering with government records (a second-degree felony) and an additional misdemeanor charge for Daleiden related to purchasing human organs.
This was certainly an unexpected twist in a story that’s been full of them. While accusations of for-profit sale of fetal tissue at Planned Parenthood have, even after investigation, failed to result in criminal charges, there’ve been a lot of questions that have come up in the wake of the videos.
Who was being investigated and why?
The investigation was initiated in August when staunch abortion and Planned Parenthood foe Lieutenant Governor Dan Patrick asked Harris County District Attorney Devon Anderson—a political ally—to “immediately initiate a criminal investigation” following the release of five videos from the Planned Parenthood Gulf Coast office that suggested that the staff engaged in selling fetal tissue for profit. District Attorney Devon Anderson affirmed that her office would be looking into criminal charges and convened a grand jury.
In a grand jury proceeding, the investigation is meant to look at the entire situation for evidence of a crime. It’s like replay review in football—a coach may throw the flag to challenge the spot of the ball because he wants a first down, but if the refs find that the player fumbled before his knee touched the ground, it’s suddenly a turnover. Patrick may have wanted the investigation to look at “the gruesome and barbaric work of Planned Parenthood and what appears to be it’s profiteering from selling body parts from aborted babies,” but Anderson’s job is broader than that. Re-reading what she said at the time the investigation was launched, that becomes clear:
“I want to assure everyone in Houston that I will use every resource allocated to this office to conduct a thorough investigation and should we find that laws were broken, we will prosecute to the fullest extent of the law,” Anderson said.
The investigation didn’t find that Planned Parenthood sold fetal tissue for profit, as Patrick had believed it might when he called for it. Instead, it found that Daleiden and Merritt would be charged with tampering with government records for falsifying California driver’s licenses—a felony—while Daleiden also faces an additional misdemeanor charge for offering to buy fetal tissue.
How can Daleiden be charged with buying fetal tissue, but Planned Parenthood not be charged with selling it?
Records indicate that Daleiden offered via email to purchase fetal tissue from the Planned Parenthood Gulf Coast facility for $1,600 per sample, but that the facility never responded. The misdemeanor from which Daleiden’s charge appears to stem, though, doesn’t mean that he actually needed to succeed in buying human organs (which includes from fetuses). It can be a crime to attempt to traffic human organs and fetal tissue, even if the entity you’re offering to buy from isn’t selling. (Think of it as trying to buy drugs from an undercover cop—the person who asks is still breaking the law.)
The misdemeanor charge is probably less likely to hold up in court than the felonies, though. At the very least, a question of letter-of-the-law vs. spirit-of-the-law means that since Daleiden’s intention wasn’t to illegally obtain human organs, but to find out if Planned Parenthood would sell it to him (which, to be clear, it would not), a halfway decent defense attorney could probably persuasively argue that applying that law in this case wouldn’t serve the intention of the people who wrote it.
What about the charge for tampering with government records?
The felony charges against both Daleiden and Merritt are a different story. According to the New York Times, the pair used fake California driver’s licenses that included their photographs, but falsified their names and addresses.
“We know that they used fake IDs that had their real photographs but fake names and fake addresses purported to be issued by the State of California,” said Josh Schaffer, a Houston lawyer who represents Planned Parenthood Gulf Coast in the Harris County criminal investigation. Mr. Daleiden and Ms. Merritt presented those IDs to security at the Planned Parenthood office to gain entry to the building. “They never denied that they presented a fake ID,” Mr. Schaffer said.
Daleiden issued a statement following the indictment indicating that he considered what he and Merritt did to be standard operating procedure for investigative journalists. It’s technically possible that some investigative journalists have used fake IDs in the course of their reporting, presumably, and gotten away with it—but his claim that his organization, The Center for Medical Progress, “uses the same undercover techniques that investigative journalists have used for decades in exercising our First Amendment rights to freedom of speech and of the press” is—if the documents presented to the grand jury really were falsified California driver’s licenses, as the charge alleges—not accurate.
The ethics of undercover reporting are a much-discussed issue among journalists. In 1997, ABC News erupted a scandal when its reporters did an undercover investigation with the supermarket chain Food Lion. In that case, an appellate court found that reporters who lied on employment applications in order to gain access to stores aren’t protected by the First Amendment and may be liable for trespassing—and that’s for omitting information on a job application at a grocery store, not creating a fake government-issued ID.
A criminal court will weigh whether the allegations against Daleiden and Merritt are true, but “everybody else does it” isn’t much of a defense.
So did Planned Parenthood try to sell fetal tissue for profit or what?
To put it plainly, there’s no evidence that they did. We know that when offered the chance to do so, the Gulf Coast facility didn’t respond. That hasn’t stopped Texas officeholders from believing what they’ve seen in the heavily edited videos. Both Greg Abbott and Ken Paxton issued statements reassuring their supporters that, even if the Harris County DA and the grand jury find that only the people who made the videos committed a crime, they’ll continue using the state’s resources to look for more evidence.
“Nothing about today’s announcement in Harris County impacts the state’s ongoing investigation,” Mr. Abbott said in a statement. “The State of Texas will continue to protect life, and I will continue to support legislation prohibiting the sale or transfer of fetal tissue.”
The state attorney general, Ken Paxton, said in a statement: “The fact remains that the videos exposed the horrific nature of abortion and the shameful disregard for human life of the abortion industry. The state’s investigation of Planned Parenthood is ongoing.”
Many viewers found the videos, upon their initial release, to be disturbing. After more than half a year of investigation into the veracity of the footage, though, it seems clear that a big part of why they were so disturbing is because much of it was deceptively edited. (An image that one of the videos indicates is of an aborted fetus at nineteen weeks is actually of a stillborn baby, for example.)
So what do we know?
Ultimately, in a story that pushes as many cultural buttons as this one does, a simple list of the facts is hard to come up with, simply because few people agree on the givens. But here’s what we know right now:
- A grand jury investigation of Planned Parenthood Gulf Coast found no evidence that the facility or its staff committed any wrongdoing as it relates to the videos.
- Two of the people responsible for the videos have been indicted on felony criminal charges.
- The State of Texas is still investigating the Planned Parenthood facility to see if they may have committed any criminal activity that the Harris County DA’s office, the Texas Rangers, and the grand jury may have missed.
- No evidence currently exists that Planned Parenthood engaged in the for-profit trafficking of fetal tissue.
Daleiden and Merritt may plea to a lesser offense or be acquitted at trial. Planned Parenthood Gulf Coast may endure the state’s investigation equally unscathed, or the state may find cause to indict one or more people from the facility. More evidence may emerge regarding the practices that Daleiden and Merritt sought to document. More evidence also may emerge regarding the activities that the two engaged in as they attempted to make their videos. But for the moment, it’s clear that when a grand jury empowered to indict anyone who broke the law in this case took a hard look at all of the players, the only criminals they believed they saw were David Daleiden and Sandra Merritt.