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AG’s Office asks judge to lift injunction impeding abortion-related investigation

scales justice court 620The Attorney General’s Office is asking a federal judge to allow it to pursue an investigation into whether anyone in Arizona is violating state laws dealing with abortions and fetal remains.

In legal papers filed in federal court, Assistant Attorney General Maria Syms wants U.S. District Court Judge William Orrick to rule that his injunction barring the anti-abortion Center for Medical Progress from releasing more undercover videos does not apply to copies already being sought by prosecutors. Syms said her boss, Mark Brnovich, believes the injunction, unless amended, will impede his legal obligation to investigate whether state laws are being violated.

The Attorney General’s Office would not comment on what it is investigating other than to say it is a “possible violation of Arizona law.”

But court documents obtained by Capitol Media Services confirm there is an active investigation: Judge Orrick specifically said a subpoena already has been issued by the state.

It remains to be seen, however, whether Brnovich will be able to get the videos he is demanding.

Following a hearing on earlier this week, Orrick rejected arguments by Syms that federal courts cannot interfere with pending state investigations. But that’s not the end of it.

“The court recognizes that the Arizona Attorney General has an interest in the matter,” the judge wrote. And he agreed to look at the issue again after hearing further arguments from all involved.

That includes contentions by the National Abortion Federation, which sponsored the conferences where the videos were taken, that it and its member organizations would be harmed if more of them were released. But there also is a claim by the Center for Medical Progress that surrendering the videos under subpoena could implicate its Fifth Amendment rights against providing evidence against itself.

Exactly who or what Brnovich is investigating remains confidential.

On orders from Gov. Doug Ducey, the state Department of Health Services enacted emergency rules last month requiring abortion providers to disclose what they do with fetal tissue, including whether it is sold and to whom.

While the sale of fetal tissue for profit is forbidden by federal law, there is no similar prohibition in state statutes. There are, however, civil regulations which govern the procedure.

And Bryan Howard, president of Planned Parenthood Arizona, said his organization does not engage in such sales.

But a separate statute makes it a crime to use any fetus or parts of it “in any manner for any medical experimentation or scientific or medical investigation.” The only exception is as “strictly necessary to diagnose a disease or condition in the mother of the fetus or embryo” – and only if the abortion was performed because of that disease or condition.

The question of experimentation has taken on national significance since the Center for Medical Progress released undercover videos which appear to show Planned Parenthood executives and others, chatting with people at various conferences, discussing supplying tissue from aborted fetuses to firms doing medical research.

Last month, at the behest of the National Abortion Federation, Orrick issued a temporary restraining order barring further release of videos obtained at the organization’s conferences. The judge said there was enough evidence at this point to suggest that the Center for Medical Progress had violated agreements signed by all attending the conferences not to disclose what they heard or observed.

But Syms said that order is delaying her agency’s investigation.

“We believe state law enforcement has an interest in being able to follow all potential leads and interview witnesses consistent with our legal authority and discretion,” she told Capitol Media Services.

In her court filings on behalf of Brnovich, Syms told the judge there is no reason to block Arizona from pursuing its own investigation.

She said the National Abortion Federation, which describes itself as the professional association of abortion providers in North America, has not shown a likelihood of irreparable harm if the videos were given to law enforcement agencies conducting official investigations.

Syms did not dispute that the organization believes that release of videos will lead to a “hate campaign” directed at the individuals who have been in the already released videos as well as to others. But she said none of that applies here.

“Plaintiff does not contend that law enforcement or its personnel will engage in a ‘hate campaign’ with death threats as a result of seeing the videos and other materials in defendants’ (Center for Medical Progress) possession,” she wrote.

“Such a contention would be ludicrous,” Syms continued, calling any harm to the federation or the abortion providers who are its members purely “conjecture.” Anyway, she told the judge, information obtained by her agency is confidential under Arizona law.

On the other side of the equation, Syms said there is “substantial public interest” in allowing Brnovich and other attorneys general who he is representing “to pursue an investigation into suspected illegal activity without interference.” And she said a proposal to require the Center for Medical Progress to meet and confer with the National Abortion Federation before complying with any subpoena “will frustrate and harm investigation’s such as Arizona’s.”

“States have a strong interest in conducting an investigation before disclosing the information to a potential target,” Syms wrote.

“The investigative targets may include the parties in this case or their affiliates,” she continued. Syms said such disclosure “may significantly impede the investigation.”

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