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By Marilyn Odendahl
The Indiana Citizen
June 24, 2024

Two Indianapolis OB/GYNs are being allowed to intervene in the lawsuit filed against the Indiana Department of Health for no longer releasing the terminated pregnancy reports, which provide information on the individual abortions performed in the state.

Drs. Caitlin Bernard and Caroline Rouse filed a motion to intervene in Voices for Life v. Indiana Department of Health, et al., 49D02-2405-MI-019876, earlier this month. They argued they have an interest in the case to avoid a conflict in their legal duties, protect patient privacy and prevent Indiana Attorney General Todd Rokita’s “erroneous interpretation of the TPR statute from becoming law.”

In particular, the doctors noted Bernard was reprimanded by the Medical Licensing Board of Indiana for publicly disclosing that she was providing abortion care to a 10-year-old Ohio girl who was six weeks and three days pregnant.  All of that information, they said, is included in the TPRs.

“If (Voice for Life) obtains the relief that it seeks in this lawsuit, the Doctors will have to choose between submitting TPR forms they know will be immediately disclosed to the public, contrary to the letter and spirit of the Medical Board’s guidance, or facing criminal penalties for failing to submit the forms,” Bernard and Rouse asserted in their motion. “The Doctors’ interest in avoiding this Catch-22 is clear and compelling.”

Marion County Superior Court Judge Timothy Oakes granted the motion to intervene in a two-sentence order issued June 13, two days after the motion was filed.

Stephanie Toti, executive director of the Lawyering Project, a nonprofit focused on protecting reproductive rights, confirmed the organization is representing Bernard and Rouse in this case pro bono. Kathrine Jack, solo practitioner in Greenfield, is serving as local counsel.

AG is relying on public complaints

Voices for Life filed its lawsuit seeking the TPRs less than a month after Indiana Attorney General Todd Rokita held a news conference to release his office’s opinion, which found the reports were public documents subject to the state’s open records laws. He disputed the contention that TPRs were medical records and said individuals could sue for access.

“If you’re a citizen, if you asked for these reports and you were denied them, you could be filing a lawsuit against the state of Indiana,” Rokita said.

Until October 2023, the state health department had routinely released the TPR forms whenever Voices for Life, a pro-life nonprofit based in South Bend, made a public records request for the documents, according to the lawsuit filed May 1, 2024. Any “potential patient identifying information” was redacted by the health department before the records were released, the lawsuit stated.

However, on Jan. 12, 2024, about five months after Indiana’s near-total abortion law took effect, the lawsuit said, the department of health responded, saying that “individual terminated pregnancy reports submitted to the IDOH after August 1, 2023, are no longer releasable through public records request.”

The department bolstered its position by including an informal opinion from the Indiana Public Access Counselor. Noting the TPR calls for more than 30 categories of information on each individual patient, the public access counselor held the information contained in the terminated report is part of a patient’s medical record. Moreover, such data could be “reverse engineered” to identify patients, especially in rural communities.

According to the motion to intervene, the terminated pregnancy reports include such information as the patient’s age, county of residence, marital status, educational level, race and ethnicity, previous live births and deceased children. Also the reports contain the father’s age, the reason for the abortion, the patient’s obstetrical history, and details of either the medication or surgical abortion that was performed,  and when and where it occured.

However, the attorney general’s office maintains the TPRs are not medical records. In its opinion issued April 11, the office states the reports are for determining whether the health-care provider complied with the state’s abortion law when terminating the pregnancy.

Rokita said, during the news conference, his office replies on complaints from the general public before launching any investigation into allegations that a medical doctor has not followed state law. The TPRs, he said, give members of the public the evidence needed to evaluate compliance.

In its opinion, the attorney general’s office noted the quarterly reports released by the health department offer aggregated data about the number and types of abortions performed in the state. But, the opinion stated, that information does not provide the public with any insight into whether the health-care providers are acting in accordance with Indiana’s abortion law.

“The enforcement authority that we have at the attorney general’s office isn’t universal in the respect that we can rove around the state and enforce against doctors willy nilly,” Rokita said at the news conference. “We wait for a properly filed complaint. Our enforcement statutes in this area are complaint-driven, which means we have to get a compliant from the public in order to start an investigation.”

AG’s ‘political pressure campaign’

In their motion to intervene, the OB/GYNs faulted the attorney general’s interpretation of the law regarding terminated pregnancy reports.

“The Attorney General has taken the position that, in enacting the TPR statute, the legislature intended to authorize anti-abortion groups like VFL to act as private attorneys general, surveilling doctors who provide abortion care and acting in concert with the Attorney General’s office to regulate them,” the doctors asserted. “But the statute makes no mention of this, …  and Indiana’s abortion law are generally enforced through criminal proceedings brought by local prosecutors.”

Rokita’s comments telling the public that they have a right to sue the state of Indiana if they are denied access to the termination reports, have also raised concerns. Michael Leppert wrote in a column for the Indiana Capital Chronicle that, as the state’s top lawyer, Rokita’s duties include defending state agencies, such as the health department. Nevertheless, Leppert noted, Rokita was “actively encouraging someone to file the suit” against the health department – his client – which, Leppert argued, is a violation of the attorneys’ professional oath.

 The Indiana Department of Health told The Indiana Citizen that the attorney general’s office had enlisted Lewis and Wilkins in Indianapolis to defend the department against the Voices for Life lawsuit. The attorney general’s office confirmed it had assigned Lewis and Wilkins to the case, but lead attorney, Josh Martin of Lewis and Wilkins, did not respond to request for comment.

Lewis and Wilkins first entered into a contract with the Indiana attorney general’s office to provide legal services in 2005. The most recent contract was signed in 2018, under former Attorney General Curtis Hill’s administration, with expenses capped at $1.25 million. Hill extended the contract to Dec. 31, 2021, raising the cap to $4.93 million, and Rokita’s office pushed the contract’s expiration  to Dec. 31, 2024, and capped the fees at $13.13 million.

In making their request to intervene in the lawsuit, Bernard and Rouse, the OB/GYNs, told the court they could not rely on the defendants named in the case – the health department and the health commissioner Lindsay Weaver – to represent their interests. They reiterated that their interest is in harmonizing their obligations under the TPR statute with the guidance from the medical licensing board.

Also, Bernard and Rouse asserted they want their own lawyers because of Rokita’s actions.

“Additionally, the Attorney General’s office, which has taken a position on the issues in this case that is adverse to the Doctors’ interests, may appear at a future stage of this litigation to represent (the) Defendants,”  the OB/GYNs asserted in their motion. “And even if the Attorney General’s office does not make an official appearance in this case, the Health Department’s litigation positions may be impacted by the political pressure campaign that the Attorney General has mounted against it and the Public Access Counselor.”

Dwight Adams, a freelance 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