In July 2015, District Judge William Orrick of San Francisco issued a restraining order blocking the release of undercover videos at the National Abortion Federation (NAF) convention showing Planned Parenthood employees negotiating the sale of aborted fetus body parts. After nearly six years, more than 200 hours of that footage are yet to be seen by the public, but that is now up for deliberation.

Now, the Center for Medical Progress the National Abortion Federation and its founder, David Daleiden, are still fighting both Planned Parenthood and the National Abortion Federation in court, and two cases in particular have put Orrick in an interesting, if not damning, position.

The first is Planned Parenthood’s $16 million civil lawsuit in which Daleiden and the Center for Medical Progress just recently filed an appeal in the federal Ninth Circuit, arguing it should be reversed on First Amendment grounds. What’s curious about this lawsuit, and more importantly, how it differs from the National Abortion Federation’s case against Daleiden, is that Planned Parenthood sued Daleiden for fraud, trespass, unlawful recording, and breach of contract, but not defamation.

Planned Parenthood strategically avoided bringing up the issue of whether the content of the videos was false or defamatory. They never denied the truth of what was revealed in those undercover videos.

Dr. Forrest Smith, an OB-GYN in California who said he’s performed at least 50,000 abortions, was retained by the Center for Medical Progress and Daleiden to review their videos and testify that Planned Planned employees violated the medical standard of practice. He took the witness stand in 2019 at the trial of PPFA’s criminal case against Daleiden, testifying that “there’s no question” some of the induced abortions discussed in the videos “were live births.”

In the PPFA civil case, Orrick did not allow Smith to testify because, again, Planned Parenthood Federation of America strategically did not put the veracity of the videos up for debate. Orrick deemed Smith’s testimony unnecessary and his expert report was submitted but never used, and was recently unsealed in late January.

Daleiden and the CMP submitted another even more extensive expert report from Smith in the the National Abortion Federation case, in which he examines videos that have not been released. But because the National Abortion Federation has put the issue of what the videos show at the center of their case, Orrick is not going to be able to keep Smith’s report out the same way he did in Planned Parenthood. Herein lies Orrick’s catch-22.

“Orrick must grapple with Smith’s report in a way that he didn’t have to before,” Daleiden told The Federalist.

The problem for Orrick is that Smith’s expert report directly contradicts what he said in his 2016 preliminary gag order, that he found no “criminal wrongdoing.”

“Here’s a 50-year experienced abortion doctor who’s worked at Planned Parenthood before, who is saying ‘Actually, your Honor, as a professional in this area, I’m telling you this is extremely wrong, extremely unprofessional, extremely unethical, and extremely illegal,’” Daleiden said.

Full story at The Federalist.