- The Washington Times - Tuesday, May 3, 2016

Arizona Attorney General Mark Brnovich’s investigation into fetal-tissue sales has run into a large obstacle: a federal judge’s preliminary injunction protecting the National Abortion Federation.

The injunction, issued Feb. 5, bans the pro-life Center for Medical Progress from releasing video taken at two NAF conferences. But the order is creating headaches for Mr. Brnovich and 13 other attorneys general.

They recently joined legal scholars and lawmakers in challenging the preliminary injunction, arguing that the order hampers their ability to carry out their law-enforcement function. In order to gain access to the video, the state must issue a subpoena and have it cleared by the NAF.

That “sets a troubling precedent for future cases — that an association wishing to avoid law enforcement scrutiny can obtain an injunction restricting communications regarding potential wrongdoing,” according to the brief filed by the 14 attorneys general.

U.S. District Court Judge William H. Orrick’s injunction prevents the CMP from releasing video pending the outcome of a lawsuit filed by the NAF, which accuses the Center of racketeering during its undercover investigation of fetal-tissue sales involving Planned Parenthood.

The California-based federal judge said the center had violated the NAF’s right to privacy when its investigators secretly videotaped conversations about fetal-tissue procurement at the pro-life organization’s 2014 and 2015 annual meetings.

“Weighed against that public interest are NAF’s and its members’ legitimate interests in their rights to privacy, security, and association by maintaining the confidentiality of their presentations and conversations at NAF Annual Meetings. The balance is strongly in NAF’s favor,” said the judge in his decision.

In their filing to overturn the order, the CMP and lead investigator David Daleiden argue that the order violates the prior-restraint doctrine, which protects media outlets and others from having gag orders placed on their work before publication.

Those in the center’s corner include 11 legal scholars from nine U.S. universities, including Harvard Law School professor Mary Ann Glendon and Stanford Law School professor Michael W. McConnell.

The professors “do not agree with one another on all aspects of the controversial issue of abortion,” said their amicus brief.

“But [they] are united in insisting that all Americans — no matter what their views on abortion — have an unfettered right in our society to have access to important information about controversial matters, including abortion,” the brief said.

Six House Republicans insist that the judge erred by relying on the contentions by the NAF and Planned Parenthood that the undercover videos, a dozen of which have been released since July, are “misleading” and “highly edited.”

“The publicly released CMP videos were not ’manipulated,’ ’altered,’ ’doctored,’ or ’misleadingly edited’ in any way contrary to the accusations of [the NAF] and their supporters in the media and the public sphere, but were accurate recordings of conversations with NAF members that were faithfully reproduced, shared in full on CMP’s YouTube page, and fairly represented in the shorter video versions posted online,” said the House Republicans’ brief.

The NAF has argued that releasing the videos will subject its members to death threats and harassment, but the attorneys general pointed out that they regularly handle material in cases involving danger to people’s lives and property.

“If law enforcement cannot be trusted to handle information with the potential to risk bodily harm or even death if it falls into the wrong hands, then it simply cannot do its job,” said the attorneys general.

The brief was filed by Mr. Brnovich and supported by the attorneys general of Alabama, Arkansas, Georgia, Louisiana, Michigan, Montana, Nebraska, Nevada, Oklahoma, South Carolina, Texas, Utah and Wisconsin.

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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