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By Marilyn Odendahl
The Indiana Citizen
September 10, 2024

In a two-page order issued Monday, a Marion County Superior Court judge dismissed the lawsuit against the Indiana Department of Health, finding the termination of pregnancy reports, which are submitted by health-care providers and contain information about any abortion performed in the state, are not public records.

Judge Timothy Oakes noted as with most cases focused on statutory interpretation, this one had to consider “legislative intent, word choice, placement, and other interpretive analyses and arguments.” Also, he pointed out the conflicts between the “clear Congressional and legislative intent” to keep patient medical information private and Hoosiers’ “long history of demanding” governmental transparency.

“In the end, the Courts are obligated to follow the law as written, regardless of personal beliefs, electoral pressures, or potential non-judicial consequences or outcomes,” Oakes wrote in his order granting a motion to dismiss. “Thus, this Court is not persuaded that the law, as written, makes the Termination of Pregnancy Reports (“TPRs”) public records.”

Voices for Life, an anti-abortion nonprofit based in South Bend filed the lawsuit – Voices for Life, Inc., v. Indiana Department of Health, et al., 49D02-2405-MI-019876 – in May to force the health department to release the TPRs. The organization issued a statement in response to the ruling, saying it planned to continue fighting

“We are in this for the long haul, and we are working with our legal team at the Thomas More Society to appeal this decision,” Melanie Garcia Lyon, Voices for Life executive director, said in the statement.

Previously, the health department had provided the reports to the public, but when Indiana’s near-total abortion ban took effect in August 2023, the number of abortions being performed in Indiana dropped dramatically. Soon after that, state health officials, fearing the information contained in the reports could be “reversed engineered” to identify the women receiving abortion care, stopped releasing the TPRs.

The Department of Health responded to the complaint by filing a motion to dismiss. Oakes heard oral arguments on the motion on Sept. 6. Voices for Life argued the TPRs are not medical records because specific identifiers like the patient’s name, address and Social Security number are not included. The health department countered TPRs meet the three criteria for medical records in Indiana: they are written or printed; they are used by health-care providers; and they contain information about diagnosis, treatment or prognosis of a specific patient.

In response to the court order granting the department’s motion to dismiss, the Thomas More Society, which represented Voices for Life in the court case, reiterated its argument that TPRs should not be kept from public view.

“In our view, once a patient’s identity has been removed from a medical record, the record is no longer a ‘patient medical record’ as defined in Indiana’s access to public records law, but simply medical data,” the Thomas More Society said in a statement. “For many years before its last December about-face, the Department of Health interpreted the law this way and granted public access to Terminated Pregnancy Reports. For the protection of Indiana citizens, it should continue to do so.”

The health department declined to comment.

At the start of the oral arguments over the motion to dismiss, Oakes got the parties to confirm that whichever way he ruled, the decision would be appealed. The judge referred to the case as a “three-stop train,” meaning his decision would be appealed to the Court of Appeals of Indiana and that decision appealed to the Indiana Supreme Court.

In his order, Oakes, again, highlighted this case is likely not over.

“Plaintiff may very well find relief in an appellate court’s analysis or, more likely, at the Indiana legislature,” Oakes wrote.

Voices for Life has maintained that public review of the TPRs is necessary to ensure health-care providers and medical facilities are following state laws regarding abortion. Since the health department stopped releasing the reports, “we have no idea if our abortion laws are being enforced,” Voices for Life stated on Facebook.

The dispute over the termination of pregnancy reports took an unusual twist when Indiana Attorney General Todd Rokita entered the fray by issuing an advisory opinion in April on the privacy issue. During a news conference broadcast on Facebook, Rokita said the reports are public records and the health department – which he has a duty to defend as the state’s lawyer – could be sued for not releasing them.

Less than a month after Rokita made that statement, Voices for Life filed its lawsuit.

Democratic candidate for Indiana attorney general, Destiny Wells, criticized Rokita for his actions in this matter and noted he has been called before the Indiana attorney disciplinary commission for essentially advocating a lawsuit be filed against his client, the health department.

“The dismissal of this case is a win for medical privacy,” Wells said in a statement released Tuesday. “Hoosiers are done with Todd Rokita’s waste of taxpayer dollars.”

Dwight Adams, an editor and writer based in Indianapolis, edited this article. He has been a content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and a planner for other papers, 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.