By Marilyn Odendahl
The Indiana Citizen
March 26, 2025
The terminated pregnancy reports filed with the Indiana Department of Health every time a physician performs an abortion in the state will remain exempt from public access after the Marion County Superior Court granted a preliminary injunction on Monday.
Marion County Superior Court Judge James Joven issued the order in Caitlin Bernard M.D. and Caroline Rouse, M.D. v. Indiana State Health Commissioner and Voices for Life, Inc., 49D13-2502-PL-006359, finding that blocking access would serve “a significant public interest.”
Joven ruled the plaintiffs – Indianapolis OB/GYNs Bernard and Rouse – demonstrated that they, as medical doctors, would be adversely impacted, or suffer “sufficient injury,” if the TPRs were released to members of the public. He found the public release of TPRs caused at least one of Bernard’s patients to seek abortion care out of state to avoid the public release of her private health information and also reduced the level of trust between a doctor and a patient.
Also, as Joven had ruled previously in this case when he issued a temporary restraining order prohibiting the release of the TPRs, he held the reports are medical records and, therefore, excused from the state’s public access law, because they contain information about a patient’s diagnosis, treatment or prognosis.
The parties presented their arguments during a four-hour hearing on March 12. The preliminary injunction will remain in effect until the court issues a final judgment in this case.
Bernard and Rouse welcomed the court’s decision. They noted the TPRs contain 31 data points about each woman seeking an abortion, including her age, county and state of residence, race and ethnicity as well as details about her medical history and circumstances for terminating her pregnancy.
“We are thrilled that the court has ruled to protect our patients’ privacy,” Bernard and Rouse said in a joint statement. “Physicians like us and our patients will be at-risk if people’s personal health information is unnecessarily released. This decision reinforces the fundamental principle that privacy is an essential component of healthcare.”
The Indiana Attorney General’s Office, which represented the health commissioner, and Voices for Life did not respond to requests for comment about the ruling. They have the option of continuing to litigate in the trial court or appeal the preliminary injunction to the Court of Appeals of Indiana.
The court’s decision is another setback for Voices for Life, an anti-abortion nonprofit based in South Bend, and the Indiana Attorney General’s Office, both of whom have fought to make TPRs disclosable to the general public. Joven was unconvinced by Voices’ argument that it had relied on access to the reports, when they were available to the public, in order to assist the health department in ensuring doctors were following the state’s abortion laws.
“At the hearing, neither the (state health commissioner) nor the VFL presented any evidence that the lack of TPRs hampered any abortion law enforcement whatsoever,” Joven wrote in the preliminary injunction order, adding the defendants had not shown how they would be harmed by the injunction. “It is the responsibility of the Commissioner, the Department (IDOH) and in conjunction with the Attorney General’s Office, to uphold abortion laws – they are the state entities specifically charged with investigating and initiating enforcement actions against any doctors who fail to follow such laws.”
This is the third time a trial court has determined TPRs are not subject to the Indiana Access to Public Records Act. The health department had stopped releasing the reports nearly two years ago out of concern that the information in them could be reverse engineered to identify the women, since so few pregnancies were being terminated once the state’s near-total abortion ban took effect in August 2023.
In September 2024, Marion Superior Court Judge Timothy Oakes dismissed a lawsuit Voices for Life filed against the Department of Health, ruling the TPRs were private medical records. Voices appealed but had the case dismissed after it reached a settlement agreement with the attorney general’s office that allowed for the release of the TPRs with some of the information redacted.
Bernard and Rouse, who had intervened in the Voices for Life case, immediately filed their own lawsuit seeking to prevent the health department from issuing the TPRs.
Joven saw the plaintiffs’ intervention in the first case as bolstering, and possibly independently establishing, their standing to bring the current action. In the previous lawsuit, he noted, not only was the dispute over public access to TPRs the same but also the parties were the same with the exception that Bernard and Rouse were joined by the health department and health commissioner in arguing that the reports were confidential.
Also, Joven found the successful argument made by the IDOH and the health commissioner before Judge Oakes that TPRs are exempt from APRA disclosure was a “noteworthy detail” that reinforced the conclusion that the plaintiffs “have a reasonable likelihood of success.”
“Conspicuously, the Commissioner (and the Department) supported this same position in the earlier lawsuit while opposing it here,” Joven wrote. “The Commissioner will have the opportunity to explain its reversal of positions in this litigation.”
When the IDOH was sued by Voices for Life, the department sought representation by outside counsel, but Indiana Attorney General Todd Rokita declined the request and appointed Lewis & Wilkins, a law firm based in Indianapolis. Voices for Life’s lawsuit was filed in May 2024 about a month after Rokita issued an advisory opinion asserting TPRs were public records and, in a news conference, said anyone denied access would have grounds to sue.
However, when the Voices for Life case went to the Court of Appeals, the attorney general’s office took over representing the IDOH and negotiated a settlement agreement with Voices for Life on the department’s behalf.
During the preliminary injunction hearing, an official for the health department asserted that patient-identifying information would be removed before the TPRS were released. However, Joven noted that the settlement agreement included a provision that specified that certain information could not be redacted from the terminated pregnancy reports, which to the court appeared to be patient medical information that would be exempt from APRA disclosure.
“(Justin Stover, IDOH assistant commissioner for consumer services and healthcare regulation,) could not identify the specific information that Department would redact so that the TPR would no longer contain information that would make a TPR a medical record and represented that redaction would take place on a case-by-case basis,” Joven wrote. “The Court, therefore, determines that, at this time, the Department’s redaction of a TPR would provide inadequate to avoid the harms the Plaintiffs seek to avoid.”
(This story has been updated to clarify why outside counsel represented IDOH in the May 2024 lawsuit filed by Voices for Life, seeking access to the terminated pregnancy reports.)
Dwight Adams, an editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.
The Indiana Citizen is a nonpartisan, nonprofit platform dedicated to increasing the number of informed and engaged Hoosier citizens. We are operated by the Indiana Citizen Education Foundation, Inc., a 501(c)(3) public charity. For questions about the story, contact Marilyn Odendahl at marilyn.odendahl@indianacitizen.org.
