Stephen Cochell July 9, 2018

We have been witnessing a feeding frenzy in Congress over Planned Parenthood. Some Republican politicians have pledged to defund Planned Parenthood as other Republicans introduce bills in Congress to accomplish this goal. On the flip side, we have heard people on the far left defend Planned Parenthood with the same blind frenzy even though the videotapes distributed by a group called the Center for American Progress portrays some horrific statements by Planned Parenthood personnel. I subscribe to a philosophy of independence from one extreme versus another. Perhaps that makes me a wimp, or perhaps a “moderate.” Let’s take a “Former Fed’s” view of the debate from a legal standpoint.

Is Planned Parenthood really violating the law and selling fetal body parts for profit? Is there hard evidence that a Planned Parenthood doctor killed a baby when it was born alive? Have the tapes of these interviews been “doctored” by right-wing investigators? Where is the truth and who is telling the truth? I’m not sure that I believe any of the commentators at this point

Regardless of political persuasion, some facts are undisputed. Planned Parenthood has been providing valuable medical services to all women, but particularly low-income women for decades, which is why it receives federal funding. The percentage of general medical services provided to women for general services versus abortions is 97% to 3%. While many of us do not approve of abortion for social, religious or other reasons, the fact is that Planned Parenthood provides a broad spectrum of medical services to all women regardless of income and abortion is a very small part of their services.

Conservative politicians understandably serve their constituents just as liberal politicians serve their constituents. Conservative politicians understand that, in our constitutional form of government, the Supreme Court ultimately determines the law, and decided the issue of a woman’s right to reproductive choice in Roe v. Wade back in 1964. Regardless of whether we love or hate Roe v. Wade, it is the law of the land and must be obeyed. When non-profit agencies receive federal funds to provide medical services allowed by law, the federal government has a perfect right to question how federal funds are spent. However, the federal government should not allow political ideology or popularity of an organization to dictate whether a qualified organization should receive federal funds. Simply stated, neither Planned Parenthood or any other organization should be vilified based on contrived or doctored videotapes.

Prohibitions Regarding Human Fetal Tissue

Impartial investigators are open to all evidence in a situation where, as here, serious allegations have been made. Thus, we need to listen carefully when Planned Parenthood takes a position that the secret tapes made of its personnel were edited heavily to portray the very worst of the alleged misconduct. The investigators need to review and forensically evaluate the full unedited tapes and submit a report to Congress and the public. We also need to evaluate the criminal statute and the standards set by Congress that was allegedly violated and what it actually prohibits.

42 U.S.C. §289 (g), entitled Prohibitions Regarding Human Fetal Tissue, provides, in pertinent part, that: (a) It shall be unlawful for any person to knowingly, acquire, or otherwise transfer any human fetal tissue for valuable consideration if that transfer affects interstate commerce.

One of the lead sponsors of the legislation, Democratic Congressman Henry Waxman stated that: “It would be abhorrent to allow for the sale of fetal tissue and a market to be created for that sale…Any price is illegal.”

Violations of the statute are punishable by ten years imprisonment and twice the amount of value of the consideration given. The term “valuable consideration” does not include reasonable payments associated with the transportation, implantation, processing, preservation, quality control, or storage of human fetal tissue.

For those aching for a federal prosecution of Planned Parenthood, that plain language of the statute requires “valuable consideration.” Consideration generally refers to some money, mutual promises or benefit to the parties engaging in an exchange of fetal tissue. The term “consideration”, however, is extremely broad and, in most contract cases, requires minimal proof and can be as little as one dollar bill. Waxman’s comment, which is part of the legislative history, may become problematic for Planned Parenthood. Clearly, congressional intent condemned any creation of a market for the sale of fetal tissue. However, criminal statutes are usually construed strictly to discourage overreaching by the Government. Publicly available information indicates that Planned Parenthood charges $60 for transfers of human fetal tissue. Essentially, this may well constitute the cost of preserving, maintaining and shipping bio-medical samples via overnight transportation, such as through FedEx or UPS.

In a letter from Planned Parenthood to Congress dated July 20, 2015, Planned Parenthood vigorously challenged the tapes and the specifically raised the fact that Planned Parenthood did not make a profit from the transfer of human fetal tissue. Specifically, it noted that the Center for Medical Progress was directed by a known “extremist and alleged that this organization has violated state and federal law to gain entry to Planned Parenthood locations, and set up a phony company named Biomax that had offered to buy a liver and thymus for $1600.

Planned Parenthood is legitimately defending itself on the basis that the funds charged were not to generate profit, but was to cover the costs of their fetal tissue program. In other words, they are saying this was not a “profit center” for this charitable organization but a valuable public service to advance medical research.

In my opinion, if there are a few people in Planned Parenthood who have violated the law, they should be prosecuted and put in jail. At the same time, portions of the videotapes, possibly edited portions appear to reflect a callous attitude toward life that cannot be tolerated in a civilized society. The answer, however, is to remain a civilized society and investigate what happened, how it happened and who did it. It is up to our legislators to learn from the deficiencies or loopholes under current law and to fill the loopholes to assure the uniform and effective application of the law. Before Congress starts tinkering with legislation or defunds Planned Parenthood, Congress needs to investigate before they act.

Representative Jason Chafetz was recently criticized by other conservative Republicans for focusing the Ways and Means Committee’s questioning of Planned Parenthood on finances, questioning their use of funds for salaries, expenses (reportedly first-class air travel), etc, which is his job as Chair of the Ways and Means Committee. If, as reported, Planned Parenthood’s overall expenses are covered by revenues, should this non-profit organization receive the same level of federal funding going forward or less? Chafetz stated that he did not ask questions about the videotapes because the Committee had not received all the videotapes. In other words, Chafetz did not ask questions about the tapes because he did not have all the facts.

Chefetz appears to be doing his job impartially although this part of the story needs to play out further before any lasting conclusions. One hopes that the Democrats show the same restraint in defending Planned Parenthood.

My “Take” on the Dispute

Like any opinion, mine will depend on the ultimate findings of fact. However, it is not a stretch for me to imagine that Planned Parenthood doctors obtained human fetal tissue from aborted fetuses and maintained them in appropriate storage devices while their administrative staff determined where they went and then shipped in specialized containers through authorized bio-medical shippers. All of this costs money. My gut reaction is that the ultimate facts will show that the facts against Planned Parenthood are unsupported and unworthy of any congressional action.

Like any other non-profit agency seeking federal funds, however, Planned Parenthood’s funds should be on the chopping block if they are overspending or manipulating the system financially.

Bottom line…Planned Parenthood should not be trashed for what it did not do until there is actual proof—reliable proof, that they deserve whatever they get. Republicans should be conservative and protect all citizens, including Planned Parenthood from a public lynching. We must all be concerned when members of Congress and political candidates start a rush to judgment in what appears to be a set of ideological allegations by an allegedly extremist organization that has set out to hurt an organization that serves millions of women who rely upon and trust Planned Parenthood for medical services. Verify their evidence. If they have trumped charges, they should be held strictly accountable by Congress and the public.

Like many others, I am fiercely independent (or moderate) and hate the extreme political speech being undertaken by extreme elements of both parties. I have voted for Republicans and Democrats and do not want to see this country fall into the trap of extreme positions being taken as the litmus test for political office. As a practical matter, what are the Republicans really thinking about? These women vote, and a vote to defund Planned Parenthood just supports the Democrats’ “War on Women” campaign against Republicans. If the Republican party ideologues really persist in defunding the entire organization, it becomes increasingly difficult for this older white male Independent (with conservative tendencies) and others like him to disagree with that claim. By the way, that doesn’t necessarily equate to a vote for the extreme Democratic candidates, it just gets thrown into the goulash of political issues that accompanies me into the voting booth!

What do you think?