Monday, November 18, 2019
The Ninth U.S. Circuit Court of Appeals on Friday declined to order a modification or lifting of a preliminary injunction barring the Center for Medical Progress (“CMP”) and others from further publication of recordings made surreptitiously at the 2014 and 2015 annual meetings of the National Abortion Federation (“NAF”). The appellants were CMP, BioMax Procurement Services, LLC (“BioMax”) which gained entry to the meetings posing as a tissue procurement company, and CMP founder, David Daleiden. Below are excepts from the memorandum opinion.
Since the district court entered its preliminary injunction, California has initiated criminal proceedings against Daleiden in state court; Congress has completed its investigations into fetal tissue donation, uncovering no wrongdoing; and NAF has released statistics of violence and disruption following publication of CMP’s recordings. CMP, Biomax, and Daleiden filed a motion arguing that these three developments warranted the dissolution, modification, or clarification of the district court’s preliminary injunction.
First, the publication of NAF’s 2015 Violence and Disruption Statistics does not represent a significant change in the facts. Rather, these statistics are consistent with the district court’s conclusion that a significant increase in harassment, threats, and violence toward reproductive providers following CMP’s publication of its recordings warrants preliminary injunctive relief. Second, the (publication of congressional findings regarding fetal tissue donation—even if a significant change in fact—does not warrant dissolution, modification, or clarification of the district court’s preliminary injunction. Significantly, both houses of Congress have expressly disclaimed reliance on CMP’s recordings in their investigations and referrals….Thus, there is no newsgathering or investigatory public interest that weighs in favor of modifying or dissolving the preliminary injunction. Third, although the filing of state criminal charges against Daleiden is a significant change in fact, this change does not warrant altering the district court’s preliminary injunction because the preliminary injunction does not impede the state’s ability to bring criminal charges or Daleiden’s ability to mount a defense. Accordingly, the district court did not abuse its discretion in denying the motion to dissolve, modify, or clarify the preliminary injunction.
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