No Matter What You Think About Abortion, The Man Behind The Planned Parenthood Videos Deserves To Be Prosecuted

Lots of conservatives and foes of abortion have rallied to David Daleiden's defense -- and they're wrong, as columnist Tamara Tabo explains.

righteous indignation Tamara TaboWhen anti-abortion activist David Daleiden released hidden-camera video of his conversations with staff of Planned Parenthood, he apparently wanted criminal prosecutions and lawsuits to follow. But he probably didn’t think that he would be the defendant.

This week, Planned Parenthood Gulf Coast moved to join a federal lawsuit alleging that Daleiden’s Center for Medical Progress engaged in conspiracy, fraud, and organized criminal activity

Back in January, a grand jury in Houston declined to indict anyone from Planned Parenthood, but instead gave the go-ahead to prosecute Daleiden and Sandra Merritt, who was also involved in the undercover operation. Daleiden and Merritt were each charged with tampering with a governmental record. Daleiden was further charged with violating a Texas lawprohibiting the purchase and sale of human organs.

Lots of conservatives and foes of abortion have rallied to David Daleiden’s defense, condemning the indictments or praising Daleiden for fighting for his cause.

Not me.

Though I strongly oppose abortion and am critical of Planned Parenthood, I have no problem with prosecuting David Daleiden. Here’s why David Daleiden deserves what he’s getting . . . and should be grateful that he’s not getting worse.

He’s Not Falsely Accused

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Every criminal defendant is entitled to the presumption of innocence.

Nevertheless, Daleiden’s own videos and transcripts show him posing to Planned Parenthood staff as a representative of a (fictitious) company called BioMax interested in buying fetal cadavers for biotech research purposes.

A person violates Texas Penal Code § 48.02 “if he or she knowingly and intentionally offers to buy, offers to sell, acquires, receives, sells, or otherwise transfers any human organ for valuable consideration.” Section 48.02 includes fetal tissue in its definition of “human organ.”

Attorney Terry Yates, representing Daleiden, said at a press conference that the charge involving the purchase of Planned Parenthood’s post-abortion leftovers is “ridiculous,” and his client “never was going to actually purchase them.”

However, that the act of offering to buy or offering to sell fetal tissue is, in itself, enough to satisfy the act element of the offense.

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Note too that a person guilty of the offense need not intend to follow through on the purchase. The person satisfies the statute if he simply intends to make the offer to purchase.

David Daleiden may not have had any intention of actually buying baby parts. But he surely did mean to make the offer to buy them. He didn’t inadvertently say something that was misconstrued as an offer to purchase. His whole undercover operation was premised on him offering to buy fetal tissue, in the hope that Planned Parenthood personnel would take him up on the offer while on camera.

The Center for Medical Progress also claims that “buying fetal tissue requires a seller as well.” That’s simply not true for someone to be guilty of the offense under Texas law, however.

David Daleiden was also charged with tampering with a governmental record, under Section 37.10 of the Texas Penal Code, for allegedly creating a fake California driver’s license, which he apparently showed to Planned Parenthood staff in order to hide his true identity.

‘Journalism’ Is No Defense

The Center for Medical Progress insists that Daleiden was exercising his rights as a journalist during the undercover recordings.

Jared Woodfill is one of Daleiden’s attorneys, as well as the long-time chairman of the Harris County GOP. Woodfill told reporters, “Using the logic applied by Harris County’s D.A. office, every reporter on ‘20/20’ is guilty.”

So, if “every reporter on ‘20/20’” actually had engaged in criminal activity, that wouldn’t mean that Daleiden shouldn’t be held to account for his own criminal behavior?

Furthermore, David Daleiden may be an investigator, but he’s probably no journalist. Let’s not pretend that he routinely follows journalistic standards of ethics or professional conduct. He is an activist who likes to catch his opponents on video and expose them to public scrutiny.

Raising public awareness of an issue and lobbying for change are fine and noble goals. Journalism’s job is different, though.

Most importantly, there is no special legal protection for journalists who violate criminal laws while investigating or reporting in Texas.

Texas has a shield law that creates a qualified testimonial privilege for journalists. The law protects a journalist from being forced to reveal her sources when told to do so by a court’s subpoena. It doesn’t insulate a reporter from liability for criminal acts she might perform while reporting.

He’s Not Exactly Helping His Cause

If Daleiden had captured clear criminal acts (other than his own) on video, he would have nevertheless compromised future prosecutions of Planned Parenthood or its staff.

Lots of people are familiar with the exclusionary rule of evidence, whereby illegally obtained evidence — say, through an overzealous cop’s warrantless search — can be kept out of a subsequent criminal trial.

Elsewhere, including under federal law, the exclusionary rule applies only when a state actor, such as a law enforcement officer, illegally obtains evidence.

Not so in Texas.

Here is the State of Texas’s statutory version, codified in Section 38.23 of the Texas Code of Criminal Procedure:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas , or the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case [ . . . . ]

In Texas, the exclusionary rule applies to “an officer or other person.” While private individuals are a lot less likely to collect evidence while violating the law than are police, it does happen. The Texas Court of Criminal Appeals, the state’s highest criminal court, has indeed held that 38.23 can apply in such cases.

So, even if Daleiden recorded Planned Parenthood employees flagrantly breaking the law, if he was flagrantly breaking the law in obtaining the video proof, then the footage could very well be excluded from any criminal trials against the Planned Parenthood employees.

In Texas, one does not need to obtain consent from participants in a recorded conversation, so long as at least one party has consented to the recording. So, it was not in itself illegal for Daleiden to record his conversations.

But there are serious concerns about at least some of Daleiden’s hidden-camera footage. Some of his conversations with Planned Parenthood staff took place in private offices, such as with Planned Parenthood Gulf Coast research director Melissa Ferrell. Most Planned Parenthood facilities require visitors to present photo identification.

Would Planned Parenthood staffers have allowed Daleiden into their offices if he had not intentionally deceived them into thinking he worked for a legitimate biotech company? Was their consent effective if, but for Daleiden’s fake i.d., they would not have granted it? Without effective consent, was Daleiden trespassing?

Even if Daleiden fancied himself a martyr willing to be punished in order to expose wrongdoing, he still failed to account for the consequences of his actions.

Once again, David Daleiden may be right about the evils of abortion, but he’s wrong about so much else.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit and ran the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.