Monday, June 21

Saying “Oops!” Gracefully


I hesitate to "recycle" or reprint previous posts, in this case, a post from July of 2015, but the recent grand jury decision completely exonerating Planned Parenthood (PP)   overrules my reticence. (It also bears emphasizing that the refusal to indict [a] occurred in Texas, one of the most abortion-hostile  States in the Union, a State whose legislature recently passed a law resulting in abortion clinics being separated by hundreds of miles; [b] that has a conservative Republican governor and lieutenant governor; and [c] that the case was argued before the grand jury by a conservative Republican district attorney, Devon Anderson.) But, on the contrary, evidence was found warranting charges against the oh-so-ironically named Center for Medical Progress. Not that mere facts will stop conservative PP critics from pausing in their drumbeat of threats and misrepresentations ... in other words, deliberate, brazen, and bare-faced lying ... quite the contrary. ("Doubling down" no longer just refers to folding baby-duck feathers.)  On a whole host of issues -- climate change, gun control, health insurance, border security, etc. -- contemporary conservatives have filed for a legal separation from Reality, based on "irreconcilable differences," and, judging by the presidential candidates currently infesting the GOP, are in the process of suing for a formal divorce, including exclusive custody of the Nation. Going into a presidential election year, we would all do well to remember that.

Besides ... I freely admit to being enough of an egotist that I actually enjoy feeling vindicated.


In a PS to a recent Skeptic's Collection post, I alluded to a case in Portland, OR, where a bakery, Sweet Cakes, had been fined $135,000, allegedly for refusing to bake a wedding cake for a lesbian couple. I cited this case as an instance of what I believed at the time was an egregious violation of the “free exercise” rights of the conservative-Christian owners of the business. But it subsequently turned out that the fine was not for the refusal to bake the cake, but for some violations of the couple’s privacy (e.g., by publishing their contact information, their sexual orientation, etc.), perhaps in retaliation for the couple’s having filed a complaint against the bakery. (My editor, Terri Stewart, called this to my attention.) OK … I was wrong. Oops! I am particularly chastened because this was an uncharacteristic lapse of skepticism on the part of Your Faithful Skeptic-in-Residence. Now an incident arises, documented in a recent issue of Christianity Today, in which an anti-abortion organization, the Center for Medical Progress, sent two actors, posing as agents of a medical company buying fetal tissue, to a lunch meeting to discuss with Dr. Deborah Nucatola, Senior Director of Medical Services for Planned Parenthood (PP), the possible purchase of such tissue. The short version of the recording went viral, receiving extensive play in the conservative media, including, e.g., Fox News. However, a review of the transcript of the long version of the video reveals the recording for what it is: puppy kibble for the pit-bulls of the religious right, judiciously edited to give the appearance of illicit for-profit trafficking in human tissue. Well, everyone makes mistakes. I did with the wedding-cake incident in Portland. So did the conservative Christian media with the Nucatola recording. I said “Oops … sorry”. I wonder if they will.

[Actually, as it turned out afterwards, I was not wrong.  My initial take on the wedding-cake controversy was right:  the owners of the bakery were indeed attempting to use their religious convictions as leverage to exempt themselves from Title II requirements that businesses serve all members of the public impartially.]


The outrage centers on two aspects of the video recording:

  • Dr. Nucatola’s off-the-cuff-over-lunch estimate of a $30- to $100-dollar reimbursement of PP for collecting tissue of aborted fetuses. The short / edited less-than-9-minute version of the three-hour video leaves the impression that when Planned Parenthood collects this fee, it is added to the organization’s bottom line. However, reading the $30-to-$100 remark in full context from the transcript leaves a much different impression (boldface added):

PP: ... I think every provider has had patients who want to donate their tissue, and they absolutely want to accommodate them.They just want to do it in a way that is not perceived as, ‘This clinic is selling tissue, this clinic is making money off of this.’ I know in the Planned Parenthood world they’re very very sensitive to that. And before an affiliate is gonna do that, they need to, obviously, they’re not—some might do it for free—but they want to come to a number that doesn’t look like they’re making money. They want to come to a number that looks like it is a reasonable number for the effort that is allotted on their part. ... 
BUYER: Okay, so, when you are, or the affiliate is determining what that monetary—so that it doesn’t create, raising a question of this is what it’s about, this is the main—what price range, would you—?
PP: You know, I would throw a number out, I would say it’s probably anywhere from $30 to $100 [per specimen], depending on the facility and what’s involved. It just has to do with space issues, are you sending someone there who’s going to be doing everything, is there shipping involved, is somebody gonna have to take it out. ... we have 67 affiliates. They all have different practice environments, different staff, and so that number—
BUYER: Did you say 67?
PP: 67.
BUYER: Okay. And so of that number, how much would personality of the personnel in there, would play into it as far as how we’re speaking to them—
PP: I think for affiliates, at the end of the day, they’re a non-profit, they just don’t want to—they want to break even. And if they can do a little better than break even, and do so in a way that seems reasonable, they’re happy to do that. Really their bottom line is, they want to break even. Every penny they save is a just pennies they give to another patient. To provide a service the patient wouldn’t get.


Also, Christianity Today points to what it apparently believes is the "smoking gun" of the relationship between PP and StemExpress, a wholesaler of tissue samples, and a brochure published by the latter to substantiate allegations of for-profit trafficking, but again, this turns out to be evidentiary cotton candy.

[In the brochure, StemExpress pitches its] services to potential business partners as "providing a financial benefit to your clinic" and "contributing to the fiscal growth of your own clinic." The recovery of shipping costs accomplishes neither of those things. … That's called "selling" no matter how you want to spin it.

But, of course, the “selling” is already stipulated, and the only question at issue is whether the “selling” violates existing law against trafficking in human tissue in order to make a profit. Guilt by association is not proof, especially when culpability has not been demonstrated on anyone’s part. In any case, what also goes unexplained is why an individual or an organization engaging in any kind of felonious activity would publish and disseminate a brochure explicitly declaring their intent to do so.  I am no one's idea of Cary Grant in To Catch a Thief, but if I wanted to pull a jewel heist, I would not buy a page in the NY Times advertising my intent. There is a reason why President Nixon's "plumbers" went to the Watergate Hotel in the dead of night. And to the best of my memory, they did not publish a brochure apprising anyone of their plans. Criminality and publicity are oil and water.

Furthermore, the "selling" reference, in the above unqualified form, confuses the issue as to Christianity Today's purpose in publishing the recording, the transcript, and the text accompanying the StemExpress brochure. As demonstrated by the transcript, PP freely acknowledges that "selling" is taking place, but that the selling is not intended to make a profit.  The same is true of the StemExpress brochure. (One could hardly expect StemExpress to admit to illegal profiteering in a publicly distributed brochure!) So the question begged is:  So ... what?  Plainly, the "expose" exposes nothing except activity that -- given the lack of evidence to the contrary -- is quite legal. So Christianity Today's statement that StemExpress, and by implication PP, are engaged in "selling" no matter how you want to spin it amounts to nothing more scandalous than an "accusation" that both organizations are engaging in legal activity. McDonald's is in the same sense, and no more illicitly, engaged in "selling" [burgers] no matter how you want to spin it; Nissan, in "selling" [cars] no matter how you want to spin it. "Accusing" an organization of engaging in legal commerce is hardly news of world-historical import. At the end of the day, what Christianity Today is left with is the desire to convict someone based on the law as they wish it read, not the law as it actually reads, i.e., on the basis of a post facto law.

So – given the context that was missing from the selectively edited short version of the recording – the $30 / $100 remark pertained to “logistical” charges for collection, preservation, transportation, etc., i.e., “break-even” charges. To be sure, as the video recording is careful to note in the preamble to the recording “proper”, it is highly illegal to engage in for-profit trafficking in human tissue, fetal or otherwise. But, hypothetically speaking, if charges were to be filed against Planned Parenthood and Dr. Nucatola indicted and hailed into court to defend herself against such charges, and if the prosecution cited the $30-to-$100 remark as proof of her culpability, then given the full context provided by the transcript, if I were a juror on the case, I would have “reasonable doubt” as to her guilt and would be constrained to vote to acquit.

  • Dr. Nucatola’s seemingly cavalier and nonchalant attitude toward the whole subject, calmly eating a salad for lunch and sipping wine while discussing the technical and logistical aspects of human-tissue “harvesting”.

I even heard one radio commentator, glossing the video, criticize her for spearing this lettuce leaf rather than that and engaging in some light-hearted banter about the wine, while discoursing on techniques that minimize tissue damage. I can understand that to lay people – of which I am most assuredly one – this can be unappetizing at best, revolting at worst. (Surprisingly enough, this is even the reaction, according to the Christianity Today article, on the part of Dr. Laurie Zoloth, Professor of Medical Humanities at Northwestern University.) But thanks to time dealing with doctors and other medical personnel on behalf of my parents who, when alive, were in chronically poor health, I can say that such seeming callousness and clinical detachment is, not only typical of medical professionals, but also, perhaps in a deeper sense, necessary as a means of maintaining psychological distance in situations that would otherwise be emotionally consuming. A doctor who allows herself to become so emotionally invested in a patient that she loses her professional objectivity ceases to be a doctor and may eventually herself become a patient, a consequence that is in no one’s best interest.


The primary take-away, for me, is “Gosh … I can sympathize”. My passion for the First Amendment in the Portland wedding-cake incident clouded my critical judgment and caused me to pick up the ball and run with it … toward my own team’s goal line. I strongly suspect that the same is true vis a vis the conservative Christian community and the Center for Medical Progress fetal-tissue video. I guess it bears saying that the whole point has nothing – as in zip, zilch, nada, bupkiss – to do with the stance one adopts toward abortion or any other issue in medical ethics. For or against. Pro or con. “Pro-life” or “pro-choice”, terms that have about outlived whatever residual usefulness they may have once had, anyway. It has everything to do, however, with how far one is willing to stretch the limits of integrity, and how much risk one is willing to take with one’s own credibility, in pursuit of one's passion for a single issue.

So if there were one piece of advice I could give to the conservative Christian community regarding this whole affair it would be this: Listen carefully and repeat after me: OK … I was wrong. Oops!

James R. Cowles

PS -- The same tendency to want to convict on the basis of the law "as-wished" instead of the law "as-written" is exemplified by the statement of Charmaine Yoest, president of Americans United for Life, as she is quoted in a recent US News and World Report story (boldface added):  Planned Parenthood's selling of the broken bodies of unborn children is inhumane and troubling no matter how any investigation concludes ... And if Planned Parenthood's conduct does not violate the federal law prohibiting the sale of fetal tissue and organs, then the law must be changed.


  • You might need to publish an “oops” on your first “oops.” The fine was very clearly NOT for improperly releasing personal information. Your editor was incorrect. The fine was for emotional harm that resulted from the illegal denial of service.

    Here is a link to the court’s official ruling. The answer is laid out clearly on page 40:

    I don’t know where people got the idea that the damages were awarded for violating privacy or publishing information. The details are all in the ruling as well, and it is clearly a minor and irrelevant issue.

    • Interesting!!!! Thank you … I’d been contemplating a post on the whole religiously based / “free exercise” dimension of State-level RFRAs for some time. I will read your citation. You may well have given me a peg to hang my post on.

    • As the editor, we had an off-the-cuff discussion about the culpability of the OR bakers and their expression of their own religion. It did turn out that the OR bakers were quite rude in publishing the personal info of the couple which is not a minor or irrelevant issue to their lives. It may be aside from the court’s decision, but definitely took this poor “put upon bakers” and painted them in a different light altogether. And the couple received threats based on the info the bakers released.

      The court’s decision, I agree, was based on OR’s law which says that people can’t do that. Not all laws are that inclusive.

      • I still have an issue with the potential / possible abridgement of the bakers’ “free exercise” rights. I think that before I could support the finding for the plaintiffs, I would need to know specifically 2 things: (1) what “compelling interest” justified the abridgement of the bakers’ free exercise rights and (2) what “least restrictive means” were used to implement (1).

        Maybe it’s useful to compare this case with “Hobby Lobby”. My reading of “HL” is: (1) there is a legitimate “compelling interest” in ensuring access to contraceptives that has to be balanced off against the Greens’ right to the “free exercise” of their religious beliefs, but that (2) ACA as written was not the “least restrictive means” because it mandated 3 (or 4?) contraceptives that were potential (important word) abortifacients that violated the Greens’ religious conscience. There was a lot of maneuvering regarding, e.g., Wheaton College, etc., in terms of “self-certification” of being an exception to the contraception mandate, which Wheaton did not want to do, etc., etc., etc. But I’m talking specifically about HL. Also I have major problems with citing the POTENTIAL for abortion as a justification for excluding those 3 or 4 contraceptives. Under certain circumstances WATER can be a poison, but because water has that POTENTIAL we do not mandate poison labels on bottles of Perrier. Anyway … ) The question I would ask is (1) “To what extent is the OR case comparable to “HL”? Not completely, of course, e.g., “HL” involved the employer / employee relationship. Therefore (2) to what extent are the differences germane to a consideration of the OR case?

        Another aspect of the OR case that makes me a bit nervous is the awarding of damages for emotional trauma. To be sure, there are cases where this is justified, e.g.,a company dumps toxic waste in the water table of your neighborhood and you have to watch carefully and be on edge for years to make sure your dog — or your child — does not grow 3 heads. But in the OR case, justifying the judgment by reference to emotional distress could, in certain less apocalyptic cases, justify a type of de facto blackmail. Except in extreme cases like the toxic dump, I’d rather not go there.

        But …who knows … I need to read the decision more carefully. As Moses said of the 10 Commandments “Nothing is written in stone”.


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