By Marilyn Odendahl
The Indiana Citizen
January 23, 2025
A flurry of executive orders issued Wednesday by Gov. Mike Braun includes one which overrides a court order and requires the Indiana Department of Health to publicly release the reports filed after an abortion is performed in the state.
Executive Order 25-20, which effectively mandates the health department to open the terminated pregnancy reports to public review, comes as the state is fighting a legal battle in court to keep the documents private. In September 2024, Marion County Superior Court dismissed the complaint against the IDOH, finding Indiana’s open records statute, as written, does not make the TPRs available to members of the public.
The plaintiff, Voices for Life, turned to the Court of Appeals of Indiana in its battle to gain access to the TPRs. Last week, the appellate court granted Voices for Life a second extension, giving the pro-life nonprofit until Feb. 5 to file its brief.
Voices for Life did not respond to a request for comment about the executive order and whether the South Bend-based organization would be continuing its appeal.
In an email to The Indiana Citizen, the Indiana Department of Health said it is complying with Gov. Braun’s executive order.
Reaction to Braun’s order was swift. Democrats in the Indiana General Assembly, in particular, condemned the executive order.
“We should all be outraged and deeply concerned,” Indiana Sen. Andrea Hunley, D-Indianapolis, said in a statement. “The government has no business digging into private medical files, and with this Executive Order, Governor Braun is creating a surveillance state. In no uncertain terms, Hoosiers do not want big government in their exam rooms and Hoosiers do not want their freedoms compromised.”
However, Indiana Right to Life was thankful that Gov. Braun was taking “swift and decisive” steps to support the state’s near-total abortion ban.
“Governor Braun’s action today ensures Indiana’s abortion law will be enforced under his administration,” Mike Fichter, Indiana Right to Life president and CEO, said in a statement. “In directing the Indiana Department of Health to ensure compliance with pro-life laws, including reporting laws, abortion providers are on notice that there is no tolerance in Indiana for illegal abortions.”
The executive order, itself, does not explicitly state the TPRs are public records. Instead it mandates all state agencies “fully and faithfully” execute Indiana’s abortion laws including “the submission of TPRs.” Also, it directs state agencies to “fully cooperate” with the Indiana attorney general in the “investigation and enforcement” of the state’s abortion laws.
Renée Landers, a visiting law professor at Indiana University Robert H. McKinney School of Law in Indianapolis who is an expert in health privacy law, is not surprised by the executive order’s obscurity. She sees Braun’s order as a political statement, rather than an attempt to establish a policy or procedure and said its use of oblique language is part of a national trend by governors and presidents to impose requirements without being direct.
The obscure phrasing, Landers said, can make people complacent because they are not sure what the executive order means and how it impacts TPRs.
“Gov. Braun doesn’t have to say that he wants to out women who’ve had these procedures and their doctors,” Landers said. “He doesn’t run the risk of being accused of that. He’s trying to have it both ways.”
Landers is a professor and director of the health and biomedical law program at Suffolk University Law School. Also she is a board member of the Planned Parenthood League of Massachusetts.
Indiana House minority leader, Rep. Phil GiaQuinta, D-Fort Wayne, issued a statement removing any doubt about the executive order’s intent by saying the directive was requiring the health department to release the terminated pregnancy reports.
GiaQuinta noted under Indiana’s near-total abortion ban, enacted in 2022, a pregnancy can be terminated only in cases of rape, incest, a serious threat to the life of the mother or when the fetus has a fatal anomaly.
“Can you imagine how painful that must be for affected women, girls, their spouses and their children?” GiaQuinta queried in his statement. “I am disappointed that Gov. Braun wants to put their suffering on display for anyone to see by ordering the IDOH to release their records in the form of terminated pregnancy reports.”
Landers said whether the executive order can actually be enforced is uncertain because of the trial court’s ruling, which said TPRs are not public documents. The health department, she said, is now in the position of having to decide whether to obey the governor’s directive or the court’s ruling.
“My personal view is that the agency is perhaps better off following a court order and not running afoul of that, but that would just be how I would make that calculation,” Lander said. “Other people may decide differently.”
Asked whether the attorney general would seek get the TPRs released to the public and to end the lawsuit filed by Voices for Life, a spokesperson for the office replied, “IDOH is the one that releases the TPR and pursuant to the EO, not our office.”
Indiana law requires that physicians submit a TPR to the health department for every abortion they provide. The report contains 31 questions asking the patient’s age, marital status, education level, race and ethnicity, and county and state of residence. In addition, the report seeks information on medical condition of the mother and the fetus and the reason for the abortion.
The Department of Health had released the TPRs at the public’s request prior to the enactment of the state’s restrictive abortion law in the summer of 2022. However, when the number of terminated pregnancies dropped significantly once the near-total abortion ban took effect in 2023, the health department stopped releasing TPRs to the public out of fear the reports provided enough information to identify the women.
Indiana Attorney General Todd Rokita issued his own written opinion on TPRs in April 2024. The state’s top lawyer said the reports were public records and, in a news conference broadcast on social media, asserted private individuals and groups could sue the health department if they were denied access.
Rokita is now being investigated by the Indiana Supreme Court Disciplinary Commission for a possible violation of the rules of professional conduct for his statement that the public could take legal action against his client, the Department of Health.
Landers is skeptical that releasing the TPRS to the public would help enforce the state’s abortion restrictions. She noted the reports are filed with the state and if officials from the health department or the attorney general’s office have any concerns, they can contact the health care provider, but, she said, making the reports publicly available would not enhance enforcement activity.
Indiana Rep. Carey Hamilton, D-Indianapolis, said, in a statement, that the executive order is a “continuation of the Republican attack on women and health care providers.” She claimed the GOP has worked to strip women of their rights to health care access and the state’s abortion restrictions put women’s lives at risk.
“A woman undergoing an abortion – for whatever reason – ought to have the dignity and privacy to not have her health care information shared with a state government hell bent on persecuting her,” Hamilton said.
Planned Parenthood Great Northwest, Hawai‘i, Alaska, Indiana, Kentucky noted Braun’s action came on the 52nd anniversary of the U.S. Supreme Court’s ruling in Roe v. Wade, which held that women have a constitutional right to abortion. That precedent was overturned in 2022, when the U.S. Supreme Court issued Dobbs v. Jackson Women’s Health Organization.
About a month later, the Indiana General Assembly passed the near-total abortion ban.
“These efforts serve one purpose: to intimidate and harass health care providers who are delivering lawful, essential care,” Rebecca Gibron, CEO of PPGNHAIK, said in a statement. “This manipulative tactic of issuing an executive order essentially does nothing to change how current law is applied. It simply emboldens a hostile Attorney General who has weaponized TPRs to single out providers—creating a chilling effect that could deter patients from seeking the care they need.”
Landers agreed physicians are the real targets of the effort to get the TPRs released to the public. The doctors have more to lose, she said, because they have invested hundreds of thousands of dollars into their educations and they could face a prosecution and possibly lose their medical license and go to prison if they perform an abortion that is later deemed illegal. Even if the prosecution is not successful, the physicians would still pay a heavy reputational cost.
The curtailment of abortion care and actions like releasing the TPRs, which put doctors under more scrutiny, are having a broad impact on the entire health care industry, Landers said. She pointed to the fallout from Idaho’s six-week abortion ban. Every week, medical providers in that state are having to airlift women with pregnancy complications out of state for treatment, while hospitals are having trouble recruiting not just OB/GYNs but physicians in other disciplines. Rural parts of the state are also seeing their hospitals’ obstetrics departments close.
“This is not good for health care,” Landers said of abortion restrictions. “Whatever you think about abortion, it is not good for health care. It’s having a lot of other effects beyond the abortion conversation.”
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.