Editorial: New bill to protect Planned Parenthood is bad for whistleblowers

After anti-abortion activists released hidden-camera videos last year that purported to show Planned Parenthood officials selling body parts from aborted fetuses, the organization’s opponents went into high gear, pushing state and federal officials to cut off public funds to the group and seek criminal charges. Never mind that the videos, some of which were deceptively edited, didn’t actually demonstrate that Planned Parenthood violated the federal law against fetal tissue sales. The agit-prop provided abortion opponents with enough political momentum to persuade lawmakers in at least six state capitals to bar the organization from receiving public funds for providing women’s health services.

Since then, Planned Parenthood and its allies have pushed back in the courts, in Congress and in some state capitals, where prosecutors launched investigations into whether the surreptitious filmmakers from the Center for Medical Progress violated contracts, illegally doctored government-issued IDs or ran afoul of privacy laws. But now, Planned Parenthood wants to go further. It’s supporting a bill in the California Legislature, AB 1671 by Assemblyman Jimmy Gomez (D-Los Angeles), that would make it a crime to distribute a recording or even a transcript of a private conversation with a healthcare provider.

State law already makes it a criminal violation of privacy, punishable by up to 3 years in prison, to use an electronic device to listen in on or record people without their permission. Gomez’s bill ups the ante by making it illegal for the eavesdropper to disclose or distribute “in any manner, in any forum,” what that person heard or recorded, if the victim is any type of healthcare provider. That prohibition would apply regardless of what the heathcare provider was discussing — not just sensitive details about patients, but also private conversations about fees and billing practices, drug marketers, or plans for the weekend.

Why a healthcare provider merits special protection even when discussing things that don’t involve patient privacy is mystifying. Worse, the original version of the bill pushed by Planned Parenthood would have allowed prosecutors to target not just those who made the recordings, but those who shared them online, reported on them or published the transcripts.

The proposal had civil libertarians, news organizations and filmmakers in an uproar, and rightly so. Even if you decry the Center for Medical Progress’ work, the version of AB 1671 that reached the Senate floor could have criminalized sharing or reporting on legitimate, valuable and even potentially life-saving undercover video work.

Proponents of the bill finally agreed Tuesday to amend it to clarify that only those who actively participated in making the illegal recording could be prosecuted or sued for helping distribute it.

But make no mistake, this measure would heap more criminal and civil penalties on making a secret recording — an act that’s already prohibited by state law, even when done in the public interest — simply to satisfy an interest group popular among Sacramento Democrats. In fact, it would further disincentivize potential whistleblowers from recording malfeasance when they witness it — for example, a patient who sees her doctor handing out opioid prescriptions like candy, or a farm worker who catches a veterinarian approving a sick cow for the slaughterhouse. The potential for unanticipated and unwelcome consequences is huge.

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