Indiana’s attorney general wants the state’s medical licensing board to penalise an obstetrician-gynecologist who provided abortion care to a 10-year-old rape survivor from Ohio, a case that magnified the far-reaching consequences of restrictive anti-abortion laws and received widespread right-wing media scrutiny.
Dr Cailtin Bernard has filed a lawsuit seeking a preliminary injunction against Republican Attorney General Todd Rokita, who is accused of relying on spurious and frivolous consumer complaints against the doctor as the basis for his subpoenas for medical records of abortion patients.
He is accused of making false and misleading statements about Dr Bernard and the case of the 10-year-old girl from Ohio, whose alleged attacker has since been arrested and reportedly confessed to raping her.
Mr Rokita has accused the doctor of violating state medical reporting laws, though documents show and attorneys for Dr Bernard have argued that the girl’s case had already been reported to Ohio authorities before she receieved care in Indiana. Dr Bernard and another physician, Dr Amy Caldwell, as well as their patients, have filed the suit to block his office from allegedly infringing patient-doctor confidentiality.
Last week, Dr Bernard testified in the case. She wrote in a statement to reporters that “the fight for physicians to compassionately provide abortion care to every single person who needs their care and to fight for their patients’ access to safe, legal abortion care, free from fear of criminalization … is worth waging”.
A judge in Indianapolis is expected to rule in that case later this week.
On 30 November, Mr Rokita announced that his office filed an administrative action against Dr Bernard before the Indiana Medical Licensing Board, claiming that she “violated federal and Indiana law related to patient privacy and the reporting of child abuse.”
“This case is not about whether an abortion was performed,” according to a statement from his office. “It also is not about the office exposing anyone’s medical file. Those were arguments designed to thwart our investigation into the physician’s behavior.”
His said the charge is now before the licensing board “to determine whether there are consequences for violating a patient’s privacy rights and the obligation to immediately report child abuse to Indiana authorities.”
A statement from Dr Bernard’s attorney Kathleen DeLaney called the attorney general’s move “a last-ditch effort to intimidate Dr Bernard and other providers of abortion care.”
“The evidence and testimony from last week’s hearing confirmed that Dr Bernard complied with all reporting requirements, cooperated with law enforcement officials, and discussed a case example only in a de-identified way, within the bounds of applicable privacy laws,” she said.
Mr Rokita is “doubling down on the frivolous consumer complaints by referring them to the licensing authorities,” she added. “Though I am disappointed he has put my client in this position, we are not surprised given Mr Rokita’s consistent efforts to use his office to seek to punish those with whom he disagrees at the expense of Indiana taxpayers.”
After the US Supreme Court overturned Roe v Wade on 24 June, officials in Ohio – among several states that do not provide any exceptions for abortions from pregnancies resulting from rape or incest – enacted its law prohibiting abortion at the detection of a so-called “heartbeat” at roughly six weeks of pregnancy.
Right-wing media figures and GOP officials suggested that the crime involving the 10-year-old girl was a hoax, demanded to see criminal and medical records, and fuelled a barrage of attacks against Dr Bernard, who was baselessly accused of failing to notify law enforcement about her patient’s case.
In late July, Mr Rokita subpoenaed Dr Caldwell for all medical records relating to the 10-year-old patient. Last month, he also subpoenaed a health care clinic seeking medical records for the same patient.
A lawsuit filed on 3 November claims that “these improper investigations unfairly burden Plaintiffs in numerous ways, threatening not only their livelihood but also the availability of the essential services they provide to their patients.”
Mr Rokita’s “improper conduct dissuades patients who need emergency abortions from seeking care,” according to the lawsuit.
State lawmakers in Indiana were the first to pass new anti-abortion legislation in the wake of the Supreme Court’s decision in the case of Dobbs v Jackson Women’s Health Organization.
That bill, which was signed into law by Republican Governor Eric Holcomb in August, was blocked by a state judge, who determined that the ban unconstitutionally burdens Indiana residents’ rights “by making that autonomy largely contingent upon first experiencing extreme sexual violence or significant loss of physical health or death.”
