By Marilyn Odendahl
The Indiana Citizen
March 14, 2025
In the convoluted tug-of-war over whether to release terminated pregnancy reports, a hearing Wednesday in Marion County Superior Court revealed inconsistencies in arguments of both plaintiffs and defendants.
During the four-hour-long hearing, the Indiana Attorney General’s Office was reminded that the Indiana Department of Health had recently argued that the TPRs are exempt from the state’s open records laws, which would seem to run counter to its current position. Also, one of the plaintiffs, an obstetrician/gynecologist, was confronted with her alleged prior statement that the reports are public documents, even though she now wants to keep them private.
At one point, the judge even wondered whether the Indiana Department of Health had been wrong in the first place with its previous, longstanding practice of releasing the TPRs to the public.
The plaintiffs, Drs. Caitlin Bernard and Caroline Rouse, and defendants, the Indiana health commissioner and Voices for Life, were arguing over a motion for a preliminary injunction to block the state Department of Health from publicly disclosing the TPRs. Attorney Stephanie Toti, representing Bernard and Rouse, told Judge James Joven that keeping the reports from the public while the case is being litigated is warranted because the health department could not claw back any TPRs if the court ultimately rules they are confidential records.
Taking place in a small courtroom, the hearing included testimony from four witnesses, along with oral arguments by the attorneys. The two central issues in the case are whether the plaintiffs have standing to bring the lawsuit and whether TPRs are exempt from Indiana’s Access to Public Records Act.
Toti, executive director of The Lawyering Project, a nonprofit law firm focused on reproductive rights, and Katherine Jack, solo practitioner in Greenfield, argued Bernard and Rouse have grounds to bring the lawsuit. As OB/GYNs who provide abortion care, the plaintiffs could be professionally and personally harmed if the TPRs are released, the lawyers asserted.
Representing the health commissioner, Jeff Garn, special counsel in the Indiana Attorney General’s Office, countered that standing cannot be considered in isolation. The issue of “irreparable harm” asserted by the plaintiffs has to be viewed in relation to the disclosures of the TPRs, he said, and he added that the physicians have not shown they face any risk if the reports are made publicly available.
Joven has already extended the temporary restraining order he issued in February that prohibits the health department from releasing the TPRs. He opened Wednesday’s hearing by pushing the restraining order’s expiration to March 22, which he anticipates will coincide with his ruling on the preliminary injunction motion.
This is the second lawsuit filed over terminated pregnancy reports since Indiana’s near-total abortion ban took effect in August 2023 and the third time a trial court has been asked to consider whether the reports are subject to the state’s open records law.
Marion Superior Court Judge Timothy Oakes ruled in September 2024, in a separate case, that TPRs were medical records and exempt from public disclosure. Joven cited to Oakes’ ruling in his restraining order and reached the same conclusion.
“The language of the TPR statute suggests that the legislature views TPRs as private medical records rather than public records subject to disclosure under (Indiana’s Access to Public Records Act),” Joven wrote.
Although Bernard and Rouse had been granted their request for the restraining order, they returned to court Wednesday to seek the preliminary injunction.
Bernard, on the witness stand for nearly two hours, testified she filed the lawsuit because she wanted to keep confidential the patients’ private health information contained in the TPRs. When she said she was also concerned about what “civil vigilantes” would do if the reports were made public, the state objected.
Garn argued that Bernard was opining on matters of which she had no knowledge. Joven sustained, finding she did not have a foundation for her assertion.
In the years before the state restricted access to abortion, the health department released the completed terminated pregnancy reports, as they were filed by physicians, to the public. The reports contain patient information, identify the physician and facility where the abortion care was provided, and include details about the procedure.
With the change in Indiana’s abortion law, the number of abortions dropped significantly, falling from just over 9,500 in 2022 to 146 in 2024, according to health department data. State health officials stopped releasing the TPRs out of fear that with so few abortions, the women undergoing the procedure could be identified by the information in the reports.
On the stand, Bernard indicated she has been filing incomplete TPRs in order to protect her patients’ privacy.
Garn challenged Bernard’s concerns with the TPRs. In the 2022 lawsuit she and Dr. Amy Caldwell filed to stop Attorney General Todd Rokita from “unlawfully (harassing) physicians and patients,” Bernard took the opposite view of TPRs and indicated they were not medical records, Garn said.
Bernard replied she did not know then that she could have prevented their release to the public.
Voices for Life, an anti-abortion nonprofit in South Bend, regularly accessed the TPRs and reviewed them for potential violations of state law. Toti introduced into evidence a screenshot of the enforcement page on the group’s website, where physicians, with their photos, are listed with what VFL perceives as violations of the state TPR statute.
On the enforcement page, Bernard is listed as having violated the TPR law four times. However, Bernard testified Wednesday that the Indiana Medical Licensing Board has not taken any action against her over Voices’ alleged violations and no criminal charges have been filed.
The state pushed back on Toti’s characterization that Voices for Life’s enforcement page was misleading. Garn objected, calling the description hearsay, but Joven overruled. “It’s out there,” the judge said. “VFL put it out there, now they’ve got to live with it.”
Amy Osborne, who formerly oversaw professional license compliance for the attorney general’s office, testified how TPR complaints were handled. When a complaint about a TPR is submitted, the AG opens an investigation, which includes giving the physician the opportunity to review and respond to the allegations. Then, based on the findings, the attorney general’s office could either close the investigation, or refer the matter to the medical licensing board.
Attorney Katherine Jack tried to introduce into evidence a complaint with apparently a TPR attached, but Garn objected, saying the defense had not been notified of the exhibit prior to the hearing. Plaintiffs’ counsel responded the document had been included in the discovery provided by Voices for Life.
Joven barred the exhibit from admission, because it could not be authenticated. Toti tried later to get the document entered but was unsuccessful.
During oral arguments, Garn pointed to the language of the Indiana Access to Public Records Act. TPRs are identified as “medical records,” he told the court, but are disclosable to the public because the state’s open records law instead exempts “patient medical records.”
Garn likened the difference to the 2014 dispute in Evansville over death certificates. The Indiana Supreme Court ruled that death certificates are public records because they are intended to provide data for health officials, but it said the certifications of death registrations are exempt from disclosure because they “authenticate death for the purpose of property disposition.”
Joven was skeptical, saying Garn was making a distinction between medical records and patient medical records without specifying a difference. Also, Joven was not swayed by the defendants’ argument that the health department’s release of the TPRs prior to the implementation of the new abortion law shows the reports are not confidential. Joven mused that despite 30 years of disclosure, maybe the TPRS should have never been released.
Moreover, Joven pointed out to Garn that the health department’s position in this lawsuit on TPRs is the opposite of its position in the TPR lawsuit filed in May 2024 by Voices for Life. The nonprofit claimed the state was violating the open records law by withholding the documents, but the health department countered that the reports were private medical records and not subject to public access.
After Oakes ruled the TPRs were confidential medical records, Voices for Life appealed. However, while the case was pending at the Court of Appeals of Indiana, VFL and the attorney general’s office negotiated a settlement agreement. Bernard and Rouse had intervened in the dispute but did not participate in the settlement talks.
The appellate court subsequently dismissed the lawsuit, leading Bernard and Rouse to file the current lawsuit against the health commissioner.
Garn also argued the risk to the patients will be negated because the settlement agreement requires any potentially identifying information to be redacted before the TPRs are released. However, the settlement agreement includes a list of information in the TPR that cannot be blacked out, which includes the patient’s age and state of residence, the facility where the abortion was performed, the type of abortion and when it was performed, and the age of the father.
Other identifying information in the TPR that apparently can be redacted include the race and ethnicity of the patient, marital status, and number of previous live births.
Jordan Stover, assistant commissioner for consumer services and health care regulation at the Department of Health, testified during the preliminary injunction hearing that redactions would be determined on a case-by-case basis. Under questioning from Jack, who noted the settlement agreement’s prohibition on the redaction of certain information in the TPRs, Stover responded that additional data could be deleted even if the removal was barred by the settlement.
In her oral arguments, Toti disputed the contention that the settlement agreement’s call for redaction of the TPRs would shield the identity of the patients. She highlighted that the data which cannot be removed under the terms of the agreement includes information for which Bernard was reprimanded by the Indiana Medical Licensing Board for confirming to the media in 2022 about one of her patients, a 10-year-old from Ohio who had sought an abortion.
Also Toti dismissed Stover’s assertion that the health department would possibly redact more based on the analysis of each individual request for the TPR. She said that testimony was not credible, because the IDOH is bound by the terms of the settlement agreement.
The case is Caitlin Bernard, M.D., Caroline Rouse, M.D. v. Indiana State Health Commissioner, Voices for Life, Inc., 49D13-2502-PL-006359.
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.
