HOUSTON — A grand jury’s decision to indict two anti-abortion activists who made undercover videos about Planned Parenthood might be less about sending someone to jail than about expressing disapproval for how the pair conducted their investigation, legal experts said Tuesday.
David Daleiden and Sandra Merritt are accused of using fake driver’s licenses to infiltrate the nation’s largest abortion provider in order to make videos that accused Planned Parenthood of illegally selling fetal tissue to researchers for profit. The footage provoked outrage among Republican leaders nationwide and prompted investigations by Republican-led committees in Congress and by GOP-led state governments.
Both activists are charged with tampering with a governmental record, a felony punishable by up to 20 years in prison. Daleiden was also indicted on a misdemeanor count related to purchasing human organs.
Daleiden’s attorney, Murphy Klasing, said the activists, who live in California, plan to come to Houston’s Harris County Jail, where they will be processed and allowed to post bond. Klasing said he did not know when that will happen.
Daleiden plans to plead not guilty to the charges, Klasing said.
Legal experts say the two are not likely to see any prison time if convicted.
“It’s really citizens scolding what they thought was a political investigation. Look at what they indicted them on,” said Ekow N. Yankah, a law professor at Cardozo School of Law in New York. “They indicted them on a misdemeanor of falsifying a government document, for presenting the fake ID to get in for the story.”
“If we’re being frank,” he added, “that is not a grand jury that is looking to bring the hammer down because you’ve done some grave, grave thing.”
The video footage showed the two posing as representatives of a company called BioMax, which purportedly procured fetal tissue for research.
Planned Parenthood has said that the fake company sent an agreement offering to pay the “astronomical amount” of $1,600 for organs from a fetus. The Houston Planned Parenthood clinic said it never entered into the agreement and ceased contact with BioMax because it was “disturbed” by the overtures.
The grand jury’s investigation was initially begun by the Harris County district attorney’s office in Houston to look into Planned Parenthood. But the grand jury concluded the nation’s largest abortion provider committed no wrongdoing.
“We must go where the evidence leads us,” said Harris County District Attorney Devon Anderson, an elected Republican.
Daleiden issued a statement saying his group “uses the same undercover techniques” as investigative journalists and follows all applicable laws.
Most professional news organizations discourage or explicitly forbid reporters from posing as someone else or otherwise misrepresenting themselves.
“We respect the processes of the Harris County district attorney and note that buying fetal tissue requires a seller as well,” he said.
The Texas video was the fifth released by the Center for Medical Progress, which Daleiden founded.
Despite the center’s lofty name, public filings suggest only a small number of people are affiliated with the nonprofit, none of whom are scientists or physicians engaged in advancing medical treatments. The people named as its top officers are longtime anti-abortion activists with a history of generating headlines.
Earlier this month, Planned Parenthood sued the center in a California federal court, alleging extensive criminal misconduct. The lawsuit says the center’s videos involved making recordings without consent, registering false identities with state agencies and violating nondisclosure agreements.