November 4, 2016

November 4, 2016 | Commentary on Rule of Law

Endangering Whistleblowers to Protect Planned Parenthood

California’s overcriminalization problem became a bit worse two weeks ago, when Gov. Jerry Brown signed the Planned Parenthood law (AB 1671) into law.

Overcriminalization occurs when lawmakers try to punish people who make mistakes — often without any intent of breaking a law — with harsh criminal penalties. It’s a mindset that has helped create almost 5,000 criminal laws — and 300,000 regulations carrying criminal penalties — at the federal level alone.

The law effectively criminalizes whistleblowing by “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.”

California’s new Planned Parenthood law illustrates one part of this problem: how lawmakers enable well-connected, politically favored organizations to misuse criminal law and penalties to silence their opponents.

The new law duplicates criminal penalties for a person who violates the state eavesdropping law and then “intentionally discloses or distributes, in any manner, in any forum … or for any purpose, the contents of a confidential communication” that involves “a health care provider” — and no one else. That belies the governor’s earlier opposition to “finding a novel way to characterize and criminalize conduct that is already proscribed.”

But Planned Parenthood wanted protection from bad publicity such as that sparked by the release of controversial videos showing some of its employees discussing compensation for aborted fetal tissue. Given “the tremendous wildfire nature in which news can be spread now through social media, we need to have a crime against distribution by those in particular who did the illegal recording,” said Beth Parker, chief legal counsel of Planned Parenthood Affiliates of California. Existing criminal liability — “A slap on the hand of a $2,500 fine,” she said, conveniently omitting the maximum three-year prison sentence under existing law — “isn’t sufficient.”

Lawmakers gave no explanation why other professions — like clergy, journalists, or others with strong privacy interests — are not similarly protected. But then, unlike Planned Parenthood, these professions had no role in sponsoring and drafting the law.

As Parker implied, Planned Parenthood's law is not about protecting patient privacy. Congress already provides robust protection of medical information through the Health Insurance Portability and Accountability Act of 1996. But Planned Parenthood is most definitely interested in deterring investigation and disclosure of its own potential wrongdoing.

One year ago, Gov. Brown gave the California State Assembly clear reason to oppose bills like AB 1671, even absent First Amendment concerns. California lawmakers have grown the state criminal code to "more than 5,000 separate provisions, covering almost every conceivable form of human misbehavior," he noted. He lamented lawmakers' proclivity to exacerbate this problem by "finding a novel way to characterize and criminalize conduct that is already proscribed."

In passing AB 1671, California missed an opportunity to avoid the steady "multiplication and particularization of criminal behavior" decried in Brown's 2015 letter. In fact, the state has created a strong disincentive to potential undercover journalists and whistleblowers to act in the public interest.

As the Los Angeles Times noted, the law effectively criminalizes whistleblowing by "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."

Unable to find any rational reason for passing such a dangerous measure, the LA Times editorial concludes that it was done "simply to satisfy an interest group popular among Sacramento Democrats."

Planned Parenthood's success at raising the criminal penalties and civil liability of potential undercover journalists and whistleblowers will likely embolden other politically favored groups to abuse criminal law by urging lawmakers to craft new criminal laws designed to cater to and protect them.

And that's just the way Planned Parenthood likes it. Following the bill signing, Kathy Kneer, president of Planned Parenthood Affiliates of California, crowed: "The rest of the nation looks to California to be on the leading edge of protecting access to reproductive health care. We continue that leadership today.

This special interest law is yet another example of how political cronyism begets overcriminalization. California's failure to keep it off the books shows how easy it is for special interests and lawmakers to team up to quash whistleblowers and truth-tellers.

About the Author

John-Michael Seibler Meese Center for Legal & Judicial Studies: Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Related Issues: Rule of Law

This piece first appeared on Lifezette.com