Amicus Curiae Brief — Center for Medical Progress, et al., Petitioners v. National Abortion Federation

Supreme Court briefJul 6, 2023

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No. 22-1135

IN THE

Supreme Court of the United States

_________

CENTER FOR MEDICAL PROGRESS; BIOMAX

PROCUREMENT SERVICES, LLC; AND

DAVID DALEIDEN,

Petitioners,

NATIONAL ABORTION FEDERATION,

Respondent.

_________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

_________

BRIEF OF AMICUS CURIAE JUDICIAL

WATCH, INC. IN SUPPORT OF PETITIONERS

_________

Meredith L. Di Liberto

JUDICIAL WATCH, INC.

425 Third Street SW

Washington, DC 20024

(202) 646-5172

mdiliberto@judicialwatch.org

Counsel for Amicus Curiae

Dated: July 6, 2023

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................... iii

INTERESTS OF THE AMICUS CURIAE .................1

SUMMARY OF ARGUMENT.....................................2

ARGUMENT ...............................................................3

A. The Petition Presents an Important Public

Issue Which Warrants This Court’s

Attention ........................................................3

1. Federal Investigations .............................8

2. Federal Legislative Actions ...................11

3. Federal Executive Responses ................13

4. Presidential Campaign Responses ........13

5. State Investigations ...............................15

6. State Legislative and Executive

Actions .......................................................... 16

7. Private Business Responses ..................19

8. Public Reactions and Responses ...........20

9. University Responses ............................22

10. International Response .........................23

B. The Ninth Circuit’s Decision Has Caused

Substantial Adverse Consequences ............24

CONCLUSION ..........................................................25

iii

TABLE OF AUTHORITIES

Cases

Page(s)

De Jonge v. Oregon,

299 U.S. 353 (1937) ...........................................6

Ex Parte Quirin,

317 U.S. 1 (1942) ................................................3

Kleindienst v. Mandel,

408 U.S. 753 (1972) ............................................4

Lamont v. Postmaster General,

381 U.S. 301 (1965) ....................................... 4-5

Lane v. Franks,

573 U.S. 228 (2014) ....................................... 6-7

Lau v. Nichols,

414 U.S. 563 (1974) ............................................3

Martin v. Struthers,

319 U.S. 141 (1943) ...........................................4

McGoldrick v. Berwind-White Coal Mining Co.,

309 U.S. 33 (1940) ..............................................3

Raley v. Ohio,

360 U.S. 423 (1959) ............................................3

Roth v. United States,

354 U. S. 476 (1957) ..........................................7

Stanley v. Georgia,

394 U.S. 557 (1969) ............................................4

Terminiello v. Chicago,

337 U.S. 1 (1949) ................................................6

United States v. Republic Steel Corp.,

362 U.S. 484 (1960) ............................................3

United States v. Socony-Vacuum Oil Co.,

310 U.S. 150 (1940) ...........................................3

United States v. Union Pac. R.R. Co.,

353 U.S. 112 (1957) ...........................................3

Virginia State Board of Pharmacy v. Virginia

Citizen Consumer Council,

425 U.S. 748 (1976) .......................................4, 5

Miscellaneous

40 Days for Life,

https://www.facebook.com/40DaysforLife

TC/posts/793728024065736/ (last visited

July 23, 2023) ...................................................22

American Center For Law and Justice, “Stop

Biden’s Pro-Abortion, Anti-Life HHS

Nominee Becerra,” https://aclj.org/pro-life/

stop-bidens-pro-abortion-anti-life-hhsnominee-becerra (last visited July 3, 2023) ....21

S. Armour, “Planned Parenthood Stops Taking

Reimbursements for Fetal Tissue,” The Wall

Street Journal, October 13, 2015,

https://www.wsj.com/articles/plannedparenthood-stops-taking-reimbursementsfor-fetal-tissue-1444744800..............................19

Associated Press, “Court: Texas, Louisiana can

end Planned Parenthood funding, “November

23, 2020, https://apnews.com/article/neworleans-health-abortion-medicaid-courtsd2d02c39dafacd820308f8f99aaf5fd6 ................16

L. Bartkoukis , “These Companies Have Directly

Supported Planned Parenthood,” Townhall,

July 27, 2015, https://townhall.com

/tipsheet/leahbarkoukis/2015/07/27/thesecompanies-have-directly-supported-plannedparenthood-n2031007 ................................. 20-21

Dr. S. Berry, “20 States Ask Supreme Court

to Release Videos Exposing Planned

Parenthood,” Breitbart, September 9, 2017,

https://www.breitbart.com/politics/2017/09/09/2

0-states-ask-supreme-court-release-videosexposing-planned-parenthood/ .........................18

M. Bilger, “Pro-Life Groups Demand Kamala

Harris Resign After Raiding David Daleiden’s

Home, Stealing Videos,” Lifesite News, April

7, 2016, https://www.lifenews.com/2016/04/07/

pro-life-groups-demand-kamala-harris-resignafter-raiding-david-daleidens-home-stealingvideos/ ......................................................... 21-22

M. Carlson, “Gov. Bentley cutting off state funding

to Planned Parenthood, WFSA12 News, August

6, 2015, https://www.wsfa.com/

story/29728146/gov-bentley-cutting-offstate-funding-to-planned-parenthood/ .............17

CBS News Colorado, “CSU Changing Policy

Regarding Fetal Tissue,” July 30, 2015,

https://www.cbsnews.com/colorado/news/csucaught-up-in-sale-of-fetal-tissue-controversy/ .22

Committee on the Judiciary United States Senate,

114th Congress, Human Fetal Tissue Research,

available at:https://www.judiciary.senate.gov/

imo/media/doc/-2016-1213%20MAJORITY

%20REPORT%20%20Human%20Fetal%20

Tissue%20Research%20-%20Context%20

and%20Controversy.pdf .....................................8

K. Coyle, “Republican Effort to Defund

Planned Parenthood 2015,” Ballotpedia,

https://ballotpedia.org/Republican_effort_to

_defund_Planned_Parenthood,_2015 (last

visited July 3, 2023) ........................ 8, 11, 12, 13

P. Cunningham, “Abortion opponents to

protest Planned Parenthood nationwide,”

Washington Examiner, August 22, 2012,

https://www.washingtonexaminer.com/abortionopponents-to-protest-planned-parenthoodnationwide ........................................................21

vii

D. Daleiden, “Power Hungry Culture-Warrior

Xavier Becerra Should Be Nowhere Near

HHS,” National Review, February 24, 2021,

https://www.nationalreview.com/2021/02/power

-hungry-culture-warrior-xavier-becerra-shouldbe-nowhere-near-hhs/ .......................................21

D. Daleiden, “University of Pittsburgh Won’t

Explain its Planned Parenthood Ties,”

Newsweek, May 26, 2021,

https://www.newsweek.com/universitypittsburgh-wont-explain-its-plannedparenthood-ties-opinion-1594564 ....................15

A. DeSanctis, “Big Abortion v. David Daleiden”,

Human Life Review, published May 21, 2012,

https://eppc.org/publication/big-abortion-vdavid-daleiden/ ...........................................24, 25

A. Dobuzinskis, “U.S. Department of Justice

investigating fetal tissue transfers,” Reuters,

December 8, 2017, https://www.reuters.com

/article/us-usa-plannedparenthood/u-sdepartment-of-justice-investigating-fetal-tissuetransfers-idUSKBN1E20HA?feed

Type=RSS&feedName=topNews .....................11

S. Ferris, “Medical company cuts ties with Planned

Parenthood,” The Hill, August 14, 2015,

https://thehill.com/policy/healthcare/251173medical-company-cuts-ties-with-plannedparenthood/ .......................................................19

viii

B. Fischer, “Major Companies Reject Planned

Parenthood,” American Family Association,

July 24, 2015, https://www.afa.net/thestand/family/2015/07/major-companies-rejectplanned-parenthood/ ........................................20

M. Fox, “Trump Administration cancels FDA fetal

tissue contract,” NBC News, September 28,

2015, https://www.nbcnews.com/health/healthnews/trump-administration-cancels-fda-fetaltissue-contract-n913051 ...................................13

T. Frandsen, “Katie Galloway of Planned Parenthood

Association of Utah,” Salt Lake City Weekly,

September 16, 2015,https://www.cityweekly.net

/utah/karrie-galloway-of-planned-parenthoodassociation-of-utah/Content?oid=2986343.......16

J. Glenza, “Planned Parenthood ends fetal tissue

payments: how did we get here?,” The

Guardian, October 15, 2015, https://www.

theguardian.com/us-news/2015/oct/15/plannedparenthood-fetal-tissue-payments .............15, 16

D. Hipp, “Kansas Gov. Ends State Planned

Parenthood Funding,” Courthouse News

Service, January 14, 2016, https://www.

courthousenews.com/kansas-gov-ends-stateplanned-parenthood-funding/ ..........................17

O. Kittel, “Misinformer of the Year,” Media Matters

for America, December 17, 2015, https://www.

mediamatters.org/plannedparenthood/

misinformer-year-center-medical-progress .....14

L. Kreutz, “Hillary Clinton Calls Planned

Parenthood Videos “Disturbing,” ABC News,

July 29, 2015, https://abcnews.go.com/Politics/

hillary-clinton-calls-planned-parenthood-video

disturbing/story?id=32757475 .........................14

D. Langhorn, “Firms reach $7.8 million settlement

over allegations of selling fetal tissue,”

December 12, 2017, https://www.latimes.com

/local/lanow/la-me-fetal-tissue-20171209story.html..........................................................19

Live Action, "Members of European Parliament Call

on EU to Defund Planned Parenthood Until

Investigation into U.S. Video Scandal Are

Carried Out in Europe,” October 16, 2015,

https://www.liveaction.org/members-ofeuropean-parliament-call-on-eu-to-defundplanned-parenthood-until-investigationsinto-u-s-video-scandal-are-carried-out-ineurope/ ...............................................................23

K. McIntyre, “3 States Defund and 13 States

Investigate Planned Parenthood,” The Daily

Signal, August 14, 2015, https://dailysignal.com

/2015/08/13/3-states-defund-and-13-statesinvestigate-planned-parenthood/ .....................15

Missouri Right to Life, October 2015,

https://missourilife.org/wpcontent/uploads/2020/02/october-2015.pdf ......22

PA Family Institute, “Pa. bill would help provide

compassionate options for women and families,”

December 21, 2021, https://pafamily.org/2021

/12/13/pa-bill-would-help-providecompassionate-options-for-women-andfamilies/ .............................................................17

S. Reardon, “Trump Administration Halts FetalTissue Research by Government Scientists,”

Nature Magazine, June 6, 2019, https://www.

scientificamerican.com/article/trumpadministration-halts-fetal-tissue-research-bygovernment-scientists/ .....................................13

K. Scanlon, “Exclusive: A Year Later, Planned

Parenthood Filmmaker Reflects on Impact of

Undercover Videos,” The Blaze, July 14, 2016,

https://www.theblaze.com/news/2016/07/14/excl

usive-a-year-later-planned-parenthoodfilmmaker-reflects-on-impact-of-undercovervideos ................................................................20

E, Scott, “GOP candidates condemn Planned

Parenthood video,” CNN, July 15, 2015,

https://www.cnn.com/2015/07/14/politics/planne

d-parenthood-video-conservatives-condemn ...14

J. Sekulow, “House Panel on Infant Lives,” American

Center for Law and Justice, January 5, 2017,

https://aclj.org/pro-life/house-panel-on-infantlives-defund-planned-parenthood ....................10

A. Shimmer, “Stop the Confirmation of Xavier

Becerra, Biden’s Radically Pro-Action HHS

Pick,” Students for Life, December 7, 2020,

https://www.studentsforlifeaction.org/

stopbecerra/ .......................................................21

D. Solomon, Governing: the Future of States and

Localities, August 6, 2015, https://www.

governing.com/archive/tns-new-hampshireplanned-parenthood.html.................................16

S. Soltis, “Pro-life student hosts conference on

‘unethical and barbaric’ aborted fetal tissue

research,” The College Fix, November 2,

2021,https://www.thecollegefix.com/pro-lifestudent-hosts-conference-on-unethical-andbarbaric-aborted-fetal-tissue-research/ ...........23

Students for Life,

https://www.facebook.com/studentsforlife (last

visited July 23, 2023) ......................................22

Twibbon,

https://twibbon.com/support/istandwithdavid

(last visited July 23, 2023) ..............................22

J. Uffalussy, “As 6th Video is Released, Mounting

Evidence that the Planned Parenthood Attack

Is Coordinated – and Years in the Making,”

Yahoo Health, August 12, 2015, https://www.

yahoo.com/lifestyle/with-release-of-6thundercover-video-evidence-of126520215477.html ............................................9

xii

U.S. House Committee on Energy and Commerce,

“Select Investigative Panel to Examine the

Pricing of Fetal Tissue,” April 19, 2016,

https://energycommerce.house.gov/posts/selectinvestigative-panel-examine-pricing-fetal

-tissue ................................................................10

U.S. House Committee on Oversight and

Accountability, “Our Investigation,”

https://oversight.house.gov/wpcontent/uploads/2015/09/Committee-FindingsPlanned-Parenthood-Investigation.pdf (last

visited July 3, 2023) ........................................10

U.S. House of Representatives Committee

Repository, Hearing: Bioethics and Fetal

Tissue, March 2, 2016, https://docs.house.

gov/Committee/Calendar/ByEvent.aspx?

EventID=104605 ...............................................10

S. Zagorski, “Planned Parenthood’s Selling Babies is

So Bad Pro-Abortion George Pataki Says

Defund It,” Lifesite News, July 15, 2015,

https://www.lifenews.com/2015/07/15/

planned-parenthoods-selling-aborted-babiesis-so-bad-pro-abortion-george-pataki-saysdefund-it/ ...........................................................18

INTERESTS OF THE AMICUS CURIAE 1

Judicial Watch, Inc. (“Judicial Watch”) is a nonpartisan, public interest organization headquartered

in Washington, D.C. Founded in 1994, Judicial

Watch seeks to promote accountability, transparency

and integrity in government, and fidelity to the rule

of law. Judicial Watch regularly files amicus curiae

briefs and lawsuits related to these goals.

Amicus, as an issue-oriented educational

501(c)(3) non-profit organization, has a deep and

vested interest in the ability to engage in free and fair

speech. A large part of Amicus’ mission is to publish

records and information it has obtained through open

records laws. The ability to inform the public on

matters of genuine and profound public interest is an

essential aspect of free speech rights. The Ninth

Circuit’s erroneous decision upholding the lower

court’s

permanent

injunction

amounts

unconstitutional viewpoint discrimination that must

be corrected. In addition to the constitutional injuries

Petitioners will continue to suffer, the public

continues to suffer as well, by being purposefully

prevented from learning the facts regarding an

exceptionally important issue. Abortion affects not

only personal choices, but national choices like

Pursuant to U.S. Supreme Court Rule 37.2, Amicus

informed the parties of its intention to file this brief on June 1,

2023, and June 9, 2023. No counsel for a party authored the

brief in whole or in part. No party, counsel for a party, or any

person other than Amicus Curiae and its counsel made a

monetary contribution intended to fund the preparation or

submission of the brief.

elections, federal funding, and agency regulations. It

is absolutely essential that the public have the full

story of what transpired on Petitioners’ videos.

SUMMARY OF ARGUMENT

The Ninth Circuit’s decision to uphold the

district court is a blow to First Amendment rights

that rises to the level of significant public importance.

The Ninth Circuit’s decision to rubberstamp

viewpoint discrimination has caused substantial

adverse consequences for the Petitioners in this case,

including an especially unjust and onerous monetary

award, the inability to use the videotapes as evidence

in their criminal trial, and a chilling of their First

Amendment rights. But the damage of the Ninth

Circuit’s decision goes far beyond the Petitioners. The

decision has also caused substantial adverse

consequences for the public in general. The freedom

of speech logically incorporates the right to receive the

speech as well. The right to speak is rendered

meaningless without an audience free to listen.

By permanently silencing the Petitioners’

speech, the general public is subsequently harmed by

not being able to receive the information contained on

the videotapes. The importance of the information on

the videotapes being suppressed by the Ninth Circuit

cannot be overstated. As Amicus will demonstrate,

the videotapes that were released changed the

national and state landscape in dramatic ways. The

general public was largely unaware of the shocking

underbelly of the abortion lobby which Petitioners

exposed through the release of the videotapes.

Petitioners videos changed federal and state laws,

spurred federal and state investigations, changed

private business changes, and led to severe public

backlash. By suppressing the further release of

information, the Ninth Circuit effectively blocked

access to information the public had a right to know.

Absent this Court’s intervention, the Petitioners and

public are left with no avenue for legal relief for the

adverse consequences they have suffered and will

continue to suffer.

This Court’s intervention is greatly needed.

ARGUMENT

The Petition Presents an Important Public

Issue Which Warrants This Court’s

Attention.

This case presents the intersection of

extraordinarily important issues of public concern:

the First Amendment, the right to know, and human

fetal tissue trafficking. As such, it is imperative that

the Court intervene. See e.g., Lau v. Nichols, 414 U.S.

563, 565 (1974) (cert granted because of the public

importance of the question presented); see also United

States v. Republic Steel Corp.,362 U.S. 482, 484

(1960); Raley v. Ohio, 360 U.S. 423, 435 (1959); United

States v. Union Pac. R.R. Co., 353 U.S. 112, 113

(1957); Ex Parte Quirin, 317 U.S. 1, 19 (1942); United

States v. Socony-Vacuum Oil Co., 310 U.S. 150, 166

(1940); McGoldrick v. Berwind-White Coal Mining

Co., 309 U.S. 33, 42 (1940).

Historically, this Court has recognized that the

First Amendment rights of the speaker and the press

include the rights of the receiver and audience as well.

“It is now well established that the Constitution

protects the right to receive information and ideas.

‘This freedom [of speech and press] … necessarily

protects the right to receive …’” Stanley v. Georgia,

394 U.S. 557, 564 (1969) (quoting Martin v. Struthers,

319 U.S. 141, 143 (1943)); see also Kleindienst v.

Mandel, 408 U.S. 753, 762-63 (1972); Virginia State

Board of Pharmacy v. Virginia Citizen Consumer

Council, 425 U.S. 748, 756-57 (1976).

This recognition is based on the principle that to

give the rights of speech and press any teeth, the right

to receive must be included. In his concurring opinion

in Lamont v. Postmaster General, 381 U.S. 301 (1965),

Justice Brennan explained:

true

that

the First

Amendment contains

specific

guarantee of access to publications.

However, the protection of the Bill of

Rights goes

beyond

the

specific

guarantees to protect from congressional

abridgment those equally fundamental

personal rights necessary to make the

express guarantees fully meaningful. I

think the right to receive publications is

such a fundamental right. The

dissemination of ideas can accomplish

nothing if otherwise willing addressees

are not free to receive and consider

them. It would be a barren marketplace

of ideas that had only sellers and no

buyers.

Id. at 308 (Brennan, J., concurring, whom Goldberg

and Harlan, JJ., joined) (internal citations omitted).

The Court confirmed Justice Brennan’s “right

to receive” principle in Virginia State Board of

Pharmacy v. Virginia Citizen Consumer Council, 425

U.S. 748 (1976) when it held:

Freedom of speech presupposes a willing

speaker. But where a speaker exists, as

is the case here, the protection afforded

is to the communication, to its source

and to its recipients both. This is clear

from the decided cases. In Lamont v.

Postmaster General, 381 U.S. 301 (1965),

the

Court

upheld

the First

Amendment rights of citizens to receive

political

publications

sent

from

abroad. More recently, in Kleindienst v.

Mandel, 408 U.S. 753, 762-763 (1972) we

acknowledged that this Court has

referred to a First Amendment right to

‘receive information and ideas,’ and that

freedom of speech ‘necessarily protects

the right to receive.’

Id. at 756-57. After all, what good is the right to speak

if the audience is prevented from receiving the

information spoken?

Incorporating the right to receive information as

an essential part of the rights to speech and press

completes the purpose designed for protecting speech:

debate and the free exchange of ideas, regardless of

popularity. As this Court held in Terminiello v.

Chicago, 337 U.S. 1 (1949):

The vitality of civil and political

institutions in our society depends on

free discussion. As Chief Justice Hughes

wrote in De Jonge v. Oregon, 299 U.S.

353, 365, it is only through free debate

and free exchange of ideas that

government remains responsive to the

will of the people and peaceful change is

effected. The right to speak freely and

to promote diversity of ideas and

programs is therefore one of the chief

distinctions that sets us apart from

totalitarian regimes.

Accordingly a

function of free speech under our system

of government is to invite dispute.

Id. at 4.

This right to receive is most significant when the

information rises to the level of prominent public

concern and public interest. “Speech by citizens on

matters of public concern lies at the heart of the First

Amendment, which ‘was fashioned to assure

unfettered interchange of ideas for the bringing about

of political and social changes desired by the people.’”

Lane v. Franks, 573 U.S. 228, 325-35 (2014) (quoting

Roth v. United States, 354 U. S. 476, 484 (1957)).

Petitioners’ “speech” is comprised of the

videotapes of Respondents discussing human fetal

tissue, including how they harvest and sell it. The

general topic of human fetal tissue harvesting has

been a topic of great public interest and concern. The

more specific topic of trafficking human fetal tissue

has been a topic of even more significant public

interest and concern.

Beginning in 2015, Petitioners began publicly

releasing videotapes of undercover conversations they

had with Respondents regarding the business of

human fetal tissue. See Petition for Writ of Certiorari

“Petition”) at 4-6. The videos were shocking and

revealed publicly, for the first time, the grotesque

nature of human fetal tissue trafficking. Petitioners’

videos hit the mark with the general public and

became an issue of intense public interest and

concern: no longer would human fetal tissue be

trafficked in the dark.

The impact of Petitioners’ videos has been

immense at all levels of American society. Federal

and state legislatures and executive branches

launched investigations, proposed and passed

legislation, and issued executive orders in response to

Petitioners’ videos. Presidential campaigns included

discussion and debate about Petitioners’ videos and

human fetal tissue trafficking. Private businesses cut

business ties with Planned Parenthood and

companies involved in human fetal tissue trafficking

as identified on Petitioners’ videos. Colleges and

universities held conferences, hosted speakers and

panels, and dove into the legal, moral, and

philosophical nature of the content of Petitioners’

videos. The public’s response included peaceful

protests, petitions, boycotts, and perhaps most

importantly, making their voices heard at the ballot

boxes.

Even the international community was

impacted by Petitioners’ videos. Some of the most

prominent examples of the impact of Petitioners’

videos are as follows:

1. Federal Investigations

•

July 15, 2015: the U.S. House Judiciary

Committee announced its intention to

investigate

allegations

that

Planned

Parenthood

doctors

altered

abortion

procedures to increase the chances of

obtaining usable fetal tissue. The hearing

began on September 9, 2015. 2

The

investigation concluded in December 2016

with the release of a detailed report calling

for the Department of Justice to immediately

investigate. 3

Kelly Coyle, “Republican Effort to Defund Planned

Parenthood

2015,”

Ballotpedia,

https://ballotpedia.org/Republican_effort_to_defund_Planned_P

arenthood,_2015 (last visited July 3, 2023)

Committee on the Judiciary United States Senate, 114th

Congress, Human Fetal Tissue Research, available at:

https://www.judiciary.senate.gov/imo/media/doc/2016-1213%20MAJORITY%20REPORT%20%20Human%20Fetal%20Tissue%20Research%20%20Context%20and%20Controversy.pdf

•

July 22, 2015: a group of 49 bipartisan U.S.

Senators wrote to the U.S. Department of

Health and Human Services (“HHS”) after

the release of Petitioners’ first video, calling

on HHS to cooperate in any and all future

investigations into Planned Parenthood’s

role in fetal organ harvesting and requested

that the Secretary confirm an immediate and

thorough compliance review. 4

•

September 9, 2015: the U.S. House

Committee on Oversight and Reform sent

Petitioners and StemExpress requests for

documents and materials regarding fetal

tissue acquisition and sale. On September

29, 2015, the Committee held a hearing on

the federal funding Planned Parenthood

receives and how it spends its funds,

including how it transfers funds from its

501(c)(3) arm into its 501(c)(4) arm for the

purpose of lobbying. The Committee issued a

memorandum in response which made the

case that Planned Parenthood is “selfsustaining” and does not need federal funds. 5

Jennifer Gerson Uffalussy, “As 6th Video is Released,

Mounting Evidence that the Planned Parenthood Attack Is

Coordinated – and Years in the Making,” Yahoo Health, August

12, 2015, https://www.yahoo.com/lifestyle/with-release-of-6thundercover-video-evidence-of-126520215477.html

U.S. House Committee on Oversight and Accountability,

“Our Investigation,”

https://oversight.house.gov/wpcontent/uploads/2015/09/Committee-Findings-PlannedParenthood-Investigation.pdf (last visited July 3, 2023)

•

March 2, 2016: the U.S. House Select

Investigative Panel of the Committee on

Energy and Commerce began hearings on

“Bioethics and Fetal Tissue.” 6

•

April 20, 2016: the U.S. House Select

Investigative Panel on Infant Lives began a

hearing on “The Pricing of Fetal Tissue.” 7

This investigation resulted in criminal and

regulatory referrals as well as a scathing 471page report revealing the practice of human

tissue procurement businesses paying

abortion performers per tissue specimen in

violation of federal law. 8

•

December 13, 2016: the U.S. Senate

Judiciary

Committee

sends

criminal

referrals to the U.S. Department of Justice

(“DOJ”) and the Federal Bureau of

Investigations (“FBI”). After a significant

U.S. House of Representatives Committee Repository,

Hearing: Bioethics and Fetal Tissue, March 2, 2016,

https://docs.house.gov/Committee/Calendar/ByEvent.aspx?Even

tID=104605

U.S. House Committee on Energy and Commerce, “Select

Investigative Panel to Examine the Pricing of Fetal Tissue,”

April 19, 2016, https://energycommerce.house.gov/posts/selectinvestigative-panel-examine-pricing-fetal-tissue

Jay Sekulow, “House Panel on Infant Lives,” American

Center for Law and Justice, January 5, 2017, https://aclj.org/prolife/house-panel-on-infant-lives-defund-planned-parenthood

delay, the DOJ confirms it is investigating

the referrals and seeks documentation from

the investigation. 9

2. Federal Legislative Actions

•

S 1861 – Defund Planned Parenthood

(introduced 7/24/15) 10

•

S 1881 – Defund Planned Parenthood (and

redirect funds to women’s healthcare)

(introduced 7/28/15) 11

•

S 3301 – Defund Planned Parenthood

(introduced 7/29/15) 12

•

HR 3215 – End Trafficking of the Terminated

Unborn Act of 2015 (introduced 7/27/15) 13

Alex Dobuzinskis, “U.S. Department of Justice

investigating fetal tissue transfers,” Reuters, December 8, 2017,

https://www.reuters.com/article/us-usa-plannedparenthood/u-sdepartment-of-justice-investigating-fetal-tissue-transfersidUSKBN1E20HA?feedType=RSS&feedName=topNews

Coyle, supra note 2.

Ibid.

•

S 1917 – prohibit funding to any clinic that

accepts monetary compensation for tissue

donations (introduced 9/8/15) 14

•

HR 3134 – Defund Planned Parenthood Act

of 2015 (passed House 9/18/15) 15

•

S 3494 – Protecting Infants Born Alive Act

(introduced 9/11/15) 16

•

HR 3504 – Born-Alive Abortion Survivors

Protection Act (passed House 9/18/15) 17

•

HR 36 – Pain-Capable Unborn Child

Protection Act (failed to proceed in Senate

9/22/15) 18

•

S Amdt 2669 to HJ Res. 61 – Senate tried to

defund Planned Parenthood (failed 9/24/15) 19

•

HR 3495 – Women’s Public Health & Safety

Act (permitting states to restrict Medicaid

Ibid.

funds to abortion providing organizations)

(passed House 9/29/15) 20

3. Federal Executive Responses

•

September 24, 2018: HHS ended its contract

with Advanced Bioscience Resources (“ABR”)

as a result of the investigations following

Petitioners’ videos. 21

•

June 5, 2019: HHS ended federally funded

fetal tissue research using human fetal tissue

from elective abortions and placed more

stringent

restrictions

academic

researchers and set up an ethics review

board. 22

4. Presidential Campaign Responses

•

GOP presidential candidates spoke about the

videos and the issue of human fetal tissue

harvesting on the 2016 campaign trail.

Ibid.

Maggie Fox, “Trump Administration cancels FDA fetal

tissue contract,” NBC News, September 28, 2015,

https://www.nbcnews.com/health/health-news/trumpadministration-cancels-fda-fetal-tissue-contract-n913051

Sarah Reardon, “Trump Administration Halts FetalTissue Research by Government Scientists,” Nature Magazine,

June 6, 2019, https://www.scientificamerican.com/article/trumpadministration-halts-fetal-tissue-research-by-governmentscientists/

Former Governor Jeb Bush, Governor Bobby

Jindal, Dr. Ben Carson, Carly Fiorina,

Former Governor Mike Huckabee, Governor

Rick Perry, and Former Senator Rick

Santorum all addressed the Petitioners’

videos during the presidential primary

campaign. 23

•

Additionally, Senators Rand Paul and Ted

Cruz, Former Governor Chris Christie, and

the eventual GOP presidential nominee,

Donald Trump, also addressed the videos and

spoke out against the practice of trafficking

human fetal body parts. 24

•

Even the Democratic presidential nominee,

former Secretary Hillary Clinton, called the

videos “disturbing” and called for a national

investigation into the practice of harvesting

and selling human fetal tissue. 25

Eugene Scott, “ GOP candidates condemn Planned

Parenthood

video,”

CNN,

July

15,

2015,

https://www.cnn.com/2015/07/14/politics/planned-parenthoodvideo-conservatives-condemn

Olivia Kittel, “Misinformer of the Year,” Media Matters

for

America,

December

17,

2015,

https://www.mediamatters.org/plannedparenthood/misinformer-year-center-medical-progress

Liz Kreutz, “Hillary Clinton Calls Planned Parenthood

Videos

“Disturbing,”

ABC

News,

July

29,

2015,

https://abcnews.go.com/Politics/hillary-clinton-calls-plannedparenthood-videos-disturbing/story?id=32757475

5. State Investigations

•

Georgia, Indiana, Massachusetts, Missouri,

South Dakota, Tennessee, Texas, Arizona,

Florida, Pennsylvania, and Ohio all launched

investigations into state Planned Parenthood

clinics in wake of videos. 26

•

In addition to those states, Iowa, Kansas,

Louisiana, and South Carolina launched

similar investigations. 27

•

Pennsylvania House Health Committee

continued its human fetal trafficking

investigations in 2021 to include the

University of Pittsburgh’s use of human fetal

tissue and concerns that its supplier is

harvesting tissue from living human fetuses.

Petitioner testified at the hearing and

significant references to the videotapes and

undercover reporting were made. 28

Jessica Glenza, “Planned Parenthood ends fetal tissue

payments: how did we get here?,” The Guardian, October 15,

2015,

https://www.theguardian.com/usnews/2015/oct/15/planned-parenthood-fetal-tissue-payments

Ken McIntyre, “3 States Defund and 13 States Investigate

Planned Parenthood,” The Daily Signal, August 14, 2015,

https://www.dailysignal.com/2015/08/13/3-states-defund-and13-states-investigate-planned-parenthood/

David Daleiden, “University of Pittsburgh Won’t Explain

its Planned Parenthood Ties,” Newsweek, May 26, 2021,

https://www.newsweek.com/university-pittsburgh-wontexplain-its-planned-parenthood-ties-opinion-1594564

6. State Legislative and Executive Actions

•

Louisiana and Texas: defunded Planned

Parenthood 29

•

New Hampshire: Executive Council voted 32 to deny state funds to Planned

Parenthood 30

•

Utah: UT Department of Health ended

contract with Planned Parenthood (stopped

funds) 31

•

Arkansas: ended Medicaid

Planned Parenthood 32

funding

for

Associated Press, “Court: Texas, Louisiana can end

Planned Parenthood funding, “November 23, 2020,

https://apnews.com/article/new-orleans-health-abortionmedicaid-courts-d2d02c39dafacd820308f8f99aaf5fd6

Dave Solomon, Governing: the Future of States and

Localities,

August

2015,

https://www.governing.com/archive/tns-new-hampshireplanned-parenthood.html

Tiffany Frandsen, “Katie Galloway of Planned Parenthood

Association of Utah,” Salt Lake City Weekly, September 16,

2015,https://www.cityweekly.net/utah/karrie-galloway-ofplanned-parenthood-association-of-utah/Content?oid=2986343

Glenza, supra note 26.

•

Kansas: Governor Brownback ordered the

Kansas Department of Health to withhold all

Medicaid funds from Planned Parenthood 33

•

Alabama: Governor Bentley terminated state

funding to Planned Parenthood 34

•

Missouri: legislature voted to end contracts

with Planned Parenthood affiliates in four

states that permitted nurses and doctors to

train at Planned Parenthood clinics 35

•

Pennsylvania: state House Bill 118, the

Unborn Child Dignity Act, passed with

bipartisan support 118-83 (June 10, 2021) 36

•

Attorneys General in 20 states asked the U.S.

Supreme Court to release undercover videos

Deb Hipp, “Kansas Gov. Ends State Planned Parenthood

Funding,” Courthouse News Service, January 14, 2016,

https://www.courthousenews.com/kansas-gov-ends-stateplanned-parenthood-funding/

Morgan Carlson, “Gov. Bentley cutting off state funding to

Planned Parenthood, WFSA12 News, August 6, 2015,

https://www.wsfa.com/story/29728146/gov-bentley-cutting-offstate-funding-to-planned-parenthood/

Ibid.

PA Family Institute, “Pa. bill would help provide

compassionate options for women and families,” December 21,

2021, https://pafamily.org/2021/12/13/pa-bill-would-helpprovide-compassionate-options-for-women-and-families/

exposing Planned Parenthood’s criminal

activity. See David Daleiden, et al. v.

National Abortion Federation, et al., Case No,

17-202. Arizona Attorney General Mark

Brnovich authored the amicus brief which

was signed by the attorneys general for the

states of Alabama, Arkansas, Georgia,

Indiana, Kansas, Louisiana, Michigan,

Missouri, Montana, Nebraska, Nevada,

North Dakota, Ohio, Oklahoma, South

Carolina, Texas, Utah, West Virginia, and

Wisconsin. 37

•

Former New York Governor George Pataki,

after viewing videos, called the footage

abhorrent and voiced support for a federal

defunding of Planned Parenthood. 38

Dr. Susan Berry, “20 States Ask Supreme Court to Release Videos

Exposing Planned Parenthood,” Breitbart, September 9, 2017,

https://www.breitbart.com/politics/2017/09/09/20-states-asksupreme-court-release-videos-exposing-planned-parenthood/

Sarah Zagorski, “Planned Parenthood’s Selling Babies is

So Bad Pro-Abortion George Pataki Says Defund It,” Lifesite

News,

July

15,

2015,

https://www.lifenews.com/2015/07/15/planned-parenthoodsselling-aborted-babies-is-so-bad-pro-abortion-george-patakisays-defund-it/

7. Private Business Responses

•

Planned Parenthood announced it would “no

longer” accept reimbursement for human

fetal tissue costs. 39

•

After admitting that they illegally sold

human fetal tissue obtained from Planned

Parenthood, both DV Biologics LLC and

DaVinci Biosciences LLC were forced to shut

down and pay a $7.8 million settlement. The

Orange County, CA district attorney credited

Petitioners’ videos and undercover reporting

for his successful prosecution. 40

•

Stem Express, a human tissue procurement

company, ended its contract with Planned

Parenthood over concerns brought forth in

Petitioners’ videos. 41

Stephanie Armour, “Planned Parenthood Stops Taking

Reimbursements for Fetal Tissue,” The Wall Street Journal,

October 13, 2015, https://www.wsj.com/articles/plannedparenthood-stops-taking-reimbursements-for-fetal-tissue1444744800

Daniel Langhorn, “Firms reach $7.8 million settlement

over allegations of selling fetal tissue,” December 12, 2017,

https://www.latimes.com/local/lanow/la-me-fetal-tissue20171209-story.html

Sarah Ferris, “Medical company cuts ties with Planned

Parenthood,”

The

Hill,

August

14,

2015,

https://thehill.com/policy/healthcare/251173-medical-companycuts-ties-with-planned-parenthood/

•

On July 23, 2015, following the release of two

of Petitioners’ videos, the Heritage

Foundation published a list of companies

that financially support Planned Parenthood.

Almost immediately, Coca-Cola, Ford Motor

Company, and Xerox all contacted Planned

Parenthood and requested that they be

removed as corporate donors. They all made

public statements distancing their companies

and money from Planned Parenthood.

Within 24-hours, the remaining companies

also requested removal and publicly

distanced

themselves

from

Planned

Parenthood. 42

8. Public Reactions and Responses

•

In the first hour of release of the first video,

it was viewed more than a million times 43

Bryan Fischer, “Major Companies Reject Planned

Parenthood,” American Family Association, July 24, 2015,

https://www.afa.net/the-stand/family/2015/07/major-companiesreject-planned-parenthood/

Kate Scanlon, “Exclusive: A Year Later, Planned

Parenthood Filmmaker Reflects on Impact of Undercover

Videos,”

The

Blaze,

July

14,

2016,

https://www.theblaze.com/news/2016/07/14/exclusive-a-yearlater-planned-parenthood-filmmaker-reflects-on-impact-ofundercover-videos

•

Public boycotts of companies that financially

support

Planned

Parenthood

were

launched

•

Public petitions and opposition to nomination

of Xavier Becerra as Secretary of Health and

Human Services. Becerra took up the biased

prosecution of Petitioners after Kamala

Harris was elected as Vice President 45

•

Peaceful

protests

Parenthood clinics 46

outside

Planned

Leah Bartkoukis , “These Companies Have Directly

Supported Planned Parenthood, “ Townhall , July 27, 2015,

https://townhall.com/tipsheet/leahbarkoukis/2015/07/27/thesecompanies-have-directly-supported-planned-parenthoodn2031007

Autumn Shimmer, “Stop the Confirmation of Xavier

Becerra, Biden’s Radically Pro-Action HHS Pick,” Students for

Life,

December

2020,

https://www.studentsforlifeaction.org/stopbecerra/;

American

Center For Law and Justice, “Stop Biden’s Pro-Abortion, AntiLife HHS Nominee Becerra,” https://aclj.org/pro-life/stop-bidenspro-abortion-anti-life-hhs-nominee-becerra (last visited July 3,

2023); David Daleiden, “Power Hungry Culture-Warrior Xavier

Becerra Should Be Nowhere Near HHS,” National Review,

February

24,

2021,

https://www.nationalreview.com/2021/02/power-hungryculture-warrior-xavier-becerra-should-be-nowhere-near-hhs/

Paige Winfield Cunningham, “Abortion opponents to

protest Planned Parenthood nationwide,” Washington

Examiner,

August

22,

2012,

https://www.washingtonexaminer.com/abortion-opponents-toprotest-planned-parenthood-nationwide

•

Petitions for Kamala Harris’s resignation

following her unjust raid on Petitioners’

home. 47

•

#istandwithdavid was created and promoted

by a large number of pro-life organizations 48

University Responses

•

University of Missouri-Columbia – cancelled

contracts with Planned Parenthood 49

•

Colorado State University – suspended some

of its human tissue acquisitions 50

Micaiah Bilger, “Pro-Life Groups Demand Kamala Harris

Resign After Raiding David Daleiden’s Home, Stealing Videos,”

Lifesite

News,

April

2016,

https://www.lifenews.com/2016/04/07/pro-life-groups-demandkamala-harris-resign-after-raiding-david-daleidens-homestealing-videos/

See

e.g.,

Twibbon,

https://twibbon.com/support/istandwithdavid (last visited July

23,

2023);

Students

for

Life,

https://www.facebook.com/studentsforlife (last visited July 23,

2023);

Days

for

Life,

https://www.facebook.com/40DaysforLifeTC/posts/79372802406

5736/ (last visited July 23, 2023).

Missouri

Right

Life,

October

2015,

https://missourilife.org/wp-content/uploads/2020/02/october2015.pdf

CBS News Colorado, “CSU Changing Policy Regarding

Fetal

Tissue,”

July

30,

2015,

https://www.cbsnews.com/colorado/news/csu-caught-up-in-saleof-fetal-tissue-controversy/

•

Student organized petition and conference on

the “Unethical Research Conference” at the

University of Pittsburgh was held November

8, 2021 51

10. International Response

•

Petitioners’ videos reached beyond the U.S.

borders and invoked responses from the

international

community,

including

members of the European Parliament who

called on the E.U. to defund Planned

Parenthood.

Aloja Peterle, a European

Parliament member from Slovenia, stated

that “It is unacceptable that an organization

which appears to be breaching human rights,

ethical standards, and laws is operating in

the EU and is also being funded by EU

taxpayers. I consider their activities as a

serious offense over the first article of the

Charter of Fundamental Rights of the

European Union, which talks about the

inviolability of human dignity.” 52

Sarah Soltis, “Pro-life student hosts conference on

‘unethical and barbaric’ aborted fetal tissue research,” The

College

Fix,

November

2021,

https://www.thecollegefix.com/pro-life-student-hostsconference-on-unethical-and-barbaric-aborted-fetal-tissueresearch/

Live Action, "Members of European Parliament Call on

EU to Defund Planned Parenthood Until Investigation into U.S.

Video Scandal Are Carried Out in Europe,” October 16, 2015,

https://www.liveaction.org/members-of-european52

As evidenced by the events cited above, this is

not simply a case of a federal circuit getting a case

wrong resulting in isolated adverse effects. This is a

case that rises to the level of substantial public

concern and interest with profound and lasting

adverse effects for the general public.

The Ninth Circuit’s Decision Has Caused

Substantial Adverse Consequences.

The videos that Petitioners were able to publicly

distribute have clearly had a significant impact on the

country. See supra § A. Petitioners’ foes felt that

impact in federal and state legislation, federal and

state elections, federal and state funding, and private

funding. It was imperative for the Respondents that,

in order to protect their businesses, Petitioners’

unseen videos must be suppressed. Respondents

accomplished this goal through elected officials and

jurists who used their positions to censor Petitioners’

First Amendment rights. See Petition at 9-11; see also

Alexandra DeSanctis, “Big Abortion v. David

Daleiden”, Human Life Review, published May 21,

2012 (available at https://eppc.org/publication/bigabortion-v-david-daleiden/).

And

censoring

Petitioners’ speech, the public has been harmed.

Without the complete picture of Respondents’ role in

human fetal tissue trafficking, debate of federal and

state legislation is missing context and facts. Without

parliament-call-on-eu-to-defund-planned-parenthood-untilinvestigations-into-u-s-video-scandal-are-carried-out-in-europe/

the complete picture of Respondents’ role in human

fetal tissue trafficking, elections are conducted

without a full accounting of candidates support or

opposition of the harvesting and selling of human

fetal tissue.

Without a complete picture of

Respondents’ role in human fetal tissue trafficking,

the public’s right to know is utterly extinguished.

It is important to note that the two individuals

most responsible for targeting Petitioners and

censoring Petitioners’ speech are now the current Vice

President of the United States and the U.S. Secretary

of Health and Human Services. 53 Censorship is a very

politically profitable business when left unchecked.

The Court’s intervention is needed to restore

accountability in the Ninth Circuit, protect the First

Amendment rights of the Petitioners to speak and

disseminate their videos, and of the public to receive

them.

CONCLUSION

For the foregoing reasons, Amicus respectfully

requests that the Court grant the petition for writ of

certiorari.

See Alexandra DeSanctis, “Big Abortion v. David

Daleiden”, Human Life Review, published May 21, 2012

(available at https://eppc.org/publication/big-abortion-v-daviddaleiden/)

Respectfully submitted,

Meredith L. Di Liberto

Counsel of Record

JUDICIAL WATCH, INC.

425 Third Street SW

Washington, DC 20024

(202) 646-5172

mdiliberto@judicialwatch.org

Counsel for Amicus Curiae

July 6, 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.