Antiabortion activists must face criminal trial, state’s top court holds

Two antiabortion activists who posed as fetal researchers in order to enter national meetings of abortion providers and secretly record conversations will go to trial on criminal charges in San Francisco after the state Supreme Court rejected their latest appeal Wednesday.

The state attorney general’s office has charged David Daleiden and Sandra Merritt with violating a California law prohibiting the recording of private conversations without consent. The two claim they were acting as investigative journalists to expose alleged plots by abortion providers to sell fetal parts. A Superior Court trial is scheduled in July on nine felony charges against Daleiden and eight against Merritt.

Daleiden heads an antiabortion group called the Center for Medical Progress, and Merritt is an employee there. Identifying themselves as researchers for Biomax Procurement Services, a nonexistent company, they gained access to conventions of the National Abortion Federation in San Francisco in 2014 and in Baltimore in 2015, as well as to meetings of Planned Parenthood around that time.

After they posted videos of their discussions, which Planned Parenthood said had been heavily edited, both the abortion federation and Planned Parenthood said their members were subjected to harassment and death threats. Some states cited the videos when they cut off money to Planned Parenthood. 

In a separate case, a federal court jury in San Francisco awarded more than $2 million in damages to Planned Parenthood in 2019 in a suit accusing Daleiden, Merritt and their colleagues of fraud, clandestine recording and violating nondisclosure agreements the two had signed before entering the meetings. A federal appeals court upheld most of the damages last October. Their lawyers say Daleiden and Merritt will appeal to the Supreme Court.

One issue in the criminal case is whether Daleiden and Merritt were protected by an exemption in state law that allows secret recordings to gather evidence about a violent felony — a term the two activists claimed would apply to fetal research by the abortion groups. Superior Court Judge Christopher Hite refused to dismiss the charges on those grounds in 2019 but said a jury could decide whether the two reasonably believed a violent crime was being planned.

The defendants also argued that the conversations they recorded were at lunch gatherings and other meetings that could have been overheard by others. But Hite said prosecutors had presented enough evidence to allow a future jury to decide whether discussions with eight abortion providers were confidential. Daleiden and Merritt are also charged with conspiring to violate the confidentiality law.

Another judge, yet to be named, will preside over the trial, Brentford Ferreira, a lawyer for Daleiden, said Wednesday.

In a filing with the state Supreme Court last month seeking to dismiss the charges, Ferreira said the secretly recorded conversations had all taken place “in crowded, open areas and within earshot of other people.” He said multiple attorneys had advised Daleiden that “it was legal to record public conversations in public spaces with other people in California surreptitiously … where other people can overhear.”

The filing cited a U.S. Supreme Court ruling in June that overturned the convictions of two Alabama physicians for illegally prescribing opioids because the jury had not been asked to determine whether the two believed they were acting without authorization. Because the defendants were authorized to dispense potentially dangerous drugs classified as “controlled substances,” Justice Stephen Breyer wrote for the court, prosecutors must prove that they “knowingly or intentionally acted in an unauthorized manner.”

In recording the conversations, Ferreira wrote, Daleiden and Merritt believed “that they were simply exercising their First Amendment rights.”

The state’s high court denied review without comment Wednesday, allowing the trial to proceed.

The case is Daleiden v. Superior Court, S278761.

Reach Bob Egelko: begelko@sfchronicle.com; Twitter: @BobEgelko