Damage control, indeed: Democrats don't have a response to Planned Parenthood videos

It’s their own fault, really. After abandoning the “safe, legal, and rare” position adopted by Bill Clinton in the 1990s for absolutism on anytime-and-anywhere abortions, Democrats left themselves exposed for backlash from an electorate mostly inclined to limit abortions if the true nature of the act ever got played out on a national stage. Now that disaster has arrived, Democrats have no idea how to handle it, thanks to their abandonment of moderation:

The videos, produced by the anti-abortion nonprofit and self-described “citizen journalist” project Center for Medical Progress (CMP), have put Planned Parenthood on the defensive—and the Democratic candidates for president, too. For Democrats, the push against Planned Parenthood is eerily reminiscent of a debate their party started to lose nearly 20 years ago, when abortion opponents used the politics of revulsion to sway public opinion on so-called partial-birth abortion.

In other words, the CMP videos have given pro-lifers plenty of gross-out pull quotes, leaving Democrats in the presidential race struggling to respond. …

But ask a Democratic candidate about the videos, and answers are less than forthcoming. In fact, it’s not even clear if Hillary Clinton and her primary competitors have watched them.

Asked by the New Hampshire Union Leader on Wednesday if she had seen the videos, Clinton responded, “I have seen pictures from them and I obviously find them disturbing.” She stopped short of calling for an investigation, however, saying only that if there were to be a congressional inquiry then “it should look at everything and not just one part of it.”

That response has Democrats and abortion supporters panicking, Dave Weigel reports for the Washington Post:

That line had the intended effect. It rattled abortion rights supporters, reminding them that the Democratic frontrunner for president had hedged on their issue. The fight to defund Planned Parenthood is only the latest in a series of conservative attempts to shift the conversation on abortion, from one that bedevils Republicans to one that flummoxes Democrats. Instead of speaking generically — and popularly — about “women’s health care,” the Planned Parenthood sting forced Democrats to confront the little-covered and gruesome issue of fetal tissue sales.

Clinton’s “disturbing” comment, made in an interview with New Hampshire’s Union Leader, landed poorly. It did not matter that Planned Parenthood’s CEO Cecile Richards had apologized for the conversations in the video sting. The Democratic frontrunner, seemingly, had been forced into a defensive crouch. “She needs to clarify what her [point of view] is, and articulate it strongly and without apology,” former Planned Parenthood president Gloria Feldt told MSNBC’s Irin Carmon. “I just think that when candidates get to the firing line of a campaign they get thrown off balance and waffle.” …

Conservative news sites, spotting an opportunity, have repeatedly asked the Democratic presidential candidates to talk about the videos. None have been willing to defend the videos’ contents.

That might be because they’re indefensible. Instead of attempting to rationalize the horrors within these videos, including today’s eye-popping comments “it’s a baby” and “another boy!” from Planned Parenthood personnel, Planned Parenthood and its apologists have tried to change the subject. Any subject other than the clear message that abortions kill human life will do, whether it’s the ethics of using covertly recorded conversations (which didn’t bother these same people when it happened to Mitt Romney) or claiming victimhood at the hands of political opponents.

They also want to shut down the discussion by blocking the release of any more videos, and momentarily succeeded with a judge in Los Angeles. That ruling, though, turns out to be very narrow — and probably unenforceable anyway, as Ken White explains at Popehat:

Under this doctrine, if you try to get a court to prohibit a publication in advance — or order it taken down — on the grounds that it’s defamatory, you’ll almost certainly fail. The remedy is to seek damages afterwards. But StemExpress’ complaint isn’t about defamation. It’s about illegal recording and about violation of a nondisclosure agreement — an agreement that CMP operatives signed, attached to StemExpress’ complaint as an exhibit.

Recordings made secretly in violation of California Penal Code section 632(a) are inadmissible — you can’t illegally record someone and then use that recording as evidence against them in a case.1 But I see no authority suggesting that the general rule against prior restraint is relaxed when the communication in question is an illegal recording under California law. Courts have generally declined to create broad exceptions to the prior restraint doctrine for illegally recorded materials, particularly in a “investigative reporting” context. The recordings — and maybe even the publications of them — can be punished, but there’s not strong authority for them being prevented in advance.So: to the extent this TRO purports to rely upon the fact that the recording was illegal, it is of very dubious constitutionality.

Remarkably, StemExpress’ TRO application contains no prior restraint analysis whatsoever. Its sole concession to the First Amendment is an argument that (1) this isn’t a First Amendment violation because it’s an illegal recording, and (2) it’s not a First Amendment violation because the defendants are free to speak or write about what happened at the meeting, they just can’t release the recording. We don’t have a transcript of the hearing, and we don’t know what other arguments the court may have considered, but this is troubling.

And it could already be moot:

Right now CMP is bound by the order: its options are an emergency appeal or a knowing violation with all the consequences that follow. However, if CMP already provided the video to someone else independent of them, that person has the right to publish the video, and almost certainly can’t be subject to prior restraint. The Supreme Court has made it very difficult to prevent the media from publishing illegally-obtained materials of public interest when the media in question wasn’t complicit in getting those materials.

How much do you want to bet that this has already taken place?

At any rate, the notion of prior restraint is ironic in this debate. Had Democrats continued their “prior restraint” on abortion, the backfire from these videos would be much less problematic for their candidates up and down the 2016 ticket. Instead, they backed the extremist position, and now they find themselves in a corner over it. They have no response, because the truth in these videos cannot be denied — abortion kills human beings, abortionists know it and profit off of the destroyed human life, and Democrats want to protect the destruction of life all the way to birth.