By Marilyn Odendahl
The Indiana Citizen
February 11, 2025
Less than a week after Voices for Life and Indiana Attorney General Todd Rokita’s office announced a settlement to release terminated pregnancy reports, two Indianapolis OB/GYNs are asking Marion County Superior Court to block public access to the reports.
Drs. Caitlin Bernard and Carolina Rouse filed a lawsuit and a motion for a temporary restraining order last week against the Indiana state health commissioner and Voices for Life. The physicians argued the disclosure of the TPRs would place them in a Catch-22 of either complying with the law or following the direction of the Indiana Medical Licensing Board.
“If (the Indiana Department of Health) is able to disclose TPRs to members of the public on request, Plaintiffs will have to choose between serving as a conduit of private patient health information to the public, contrary to the letter and spirit of the Medical Board’s directive, or facing criminal penalties for failing to submit TPRs to IDOH,” Bernard and Rouse asserted in the memorandum supporting their motion for a temporary restraining order. “This Catch-22 also causes irreparable harm to Plaintiffs.”
A hearing on their motion has been scheduled for 1 p.m. Tuesday before Marion County Superior Court Judge James Joven.
Terminated pregnancy reports have been the subject of legal wrangling since the health department stopped releasing them after Indiana’s near-total abortion ban took effect in August 2023. Department officials cited concerns about patient privacy and pointed to an advisory opinion from the Indiana public access counselor, which found the information included in the TPRs could be “reverse engineered” to identify patients.
Voices for Life, an anti-abortion group based in South Bend, sued for access and in September 2024, the Marion County Superior Court ruled that the terminated pregnancy reports are exempt from the Indiana Access to Public Records Act. After turning to the Court of Appeals of Indiana, Voices for Life entered into negotiations with the attorney general’s office. The parties announced a settlement agreement and the appellate court dismissed the appeal with prejudice on Feb. 6.
Under terms of the settlement, the Department of Health will release the TPRs to any group or individuals who request copies. The IDOH can redact “personal health identifiers” before making the TPR public, but it is prohibited from deleting a long list of information deemed necessary “to determine whether a physician performed an abortion in accordance with Indiana law.” That information includes the patient’s age and state of residence, the type of abortion and date it was performed, the facility where the abortion care was administered, the physician’s name and the reason for terminating the pregnancy.
The physicians are not only asking the court to declare that TPRs are exempt from Indiana’s open records law, but they also are trying to claw back any reports that may have been recently released. Specifically, they asked the court to require that Voices for Life “return, delete or destroy” all TPRs the organization has received since the settlement was reached.
“We are once again in court defending our patients and their right to privacy,” Bernard and Rouse said in a joint statement. “Everyone receiving medical care deserves to have their personal health decisions and pregnancy outcomes protected. There is no reason to release this sensitive information to the public. We will keep fighting to protect patient privacy and the trust between doctors and patients.”
Voices for Life did not respond to a request for comment.
Bernard and Rouse noted that last year, Rokita had stepped into the fight surrounding the release of the TPRs and taken a position contrary to the health department. The attorney general issued an opinion in April 2024 asserting the reports are subject to public disclosure and he urged then-Gov. Eric Holcomb and state legislators to “take retaliatory action” against the health department and the public access counselor.
Also, the physicians asserted that Rokita’s contention that the legislature intended to rely on private citizens to “police abortion providers” is “wholly unsupported” by the TPR statute.
“There is no mention of outsourcing enforcement of abortion laws to vigilantes, and such a method of law enforcement would be so unusual that it should not be inferred absent a clear manifestation of legislative intent,” Bernard and Rouse stated in the memorandum. “Given that the legislature directed physicians to submit TPRs to IDOH, a far more plausible interpretation of the statute is that the legislature intended IDOH to monitor abortion care as part of its general oversight of public health in Indiana.”
Because of Rokita’s advocacy for releasing the TPRs to the public, the health department did enlist outside counsel to provide representation during the Voices of Life litigation last year. However, the attorney general’s office represented the IDOH at the Court of Appeals.
The Indiana Citizen asked the Department of Health whether it had consented or requested that the attorney general’s office represent it in the appeals process and whether the department participated in the settlement negotiations.
In an email, the IDOH responded, “The Braun Administration appreciates the Attorney General’s representation on this matter. The Indiana Department of Health, as an agency in the Braun Administration, shares this sentiment.”
Voices for Life is being represented in this case by Benjamin Horvath of Horvath Legal Services in South Bend. Also, the Indiana Attorney General’s Office is representing the Indiana State Department of Health Commissioner.
In their memorandum, Bernard and Rouse argued, under certain circumstances, a temporary restraining order may be granted without notice to the opposing parties. The physicians asserted, in part, that their TRO should be granted because they will suffer “immediate and irreparable injury, loss, or damage” before the opposing party can be heard on the matter.
Without the court’s intervention, the doctors stated, the Department of Health would be “free to disclose” TPRs filed by the plaintiffs to Voices for Life and other members of the public. As a result, “VFL and others will, in turn, be free to publicize the TPRs further, including by posting them on the internet.”
Bernard and Rouse stated they feared that the release of the TPRs and potential dissemination to a wider audience could put the privacy and personal safety of themselves and their patients at risk.
Also, they asserted their concerns that they could be penalized by the Medical Licensing Board for violating patients’ confidentiality since the TPRs contain what is regarded by the board as private patient information.
The physicians noted Bernard was reprimanded and fined $3,000 in 2023 for talking to a newspaper reporter about providing abortion care to a 10-year-old rape victim from Ohio. In that interview, the information that Bernard was found to have disclosed – the patient’s age, state of residence, when the patient was referred to Bernard’s care, how far along the pregnancy was and that Bernard would be providing the abortion care – is included in terminated pregnancy reports, the physicians stated.
Bernard and Rouse are asking the trial court to enter a temporary restraining order to prevent the health department from disclosing TPRs to Voices for Life, or any other member of the public, while the preliminary injunction motion is being litigated.
The physicians are represented by Kathrine Jack of the Jack Law Office in Greenfield and the Lawyering Project, an advocacy law firm focused on improving access to reproductive health care.
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.
