By Marilyn Odendahl
The Indiana Citizen
February 20, 2025
A Marion County Superior Court judge has blocked the Indiana Department of Health from releasing terminated pregnancy reports, becoming the second trial court jurist to determine the documents are not public records.
Marion Superior Court Judge James Joven granted a temporary restraining order on Wednesday in a case brought by Drs. Caitlin Bernard and Caroline Rouse, two Indianapolis OB/GYNs, against the Indiana health commissioner and Voices for Life, an anti-abortion nonprofit based in South Bend. The court agreed with the physicians that the TPRs are medical records and, therefore, not subject to disclosure under the Indiana Access to Public Records Act.
“Absent a court order prohibiting disclosure, the Department (of Health) is likely to provide VFL access to TPRs,” Joven wrote in his seven-page order. “If VFL gains access to TPRs, it will be free to publicized those medical records further, including by posting them on the internet, depriving patients of their privacy, which cannot be adequately remedied through money damages.”
The restraining order in the lawsuit – Caitlin Bernard M.D. and Caroline Rouse M.D. v. Indiana State Health Commissioner and Voices for Life, 49D13-2502-PL-006359 – will remain in effect for only 10 days, but the court indicated it could be extended for “good cause.”
Bernard and Rouse issued a joint statement, applauding the court’s ruling.
“We are grateful to see that, for now, our patients’ privacy is protected,” Bernard and Rouse said. “We hope that the court will continue to prevent the unnecessary release of people’s personal health information, which puts both physicians and patients in jeopardy for simply providing and receiving needed healthcare.”
Indiana Attorney General Todd Rokita’s office, representing the Department of Health, and Voices for Life did not respond to a request for comment.
Judge Joven’s ruling comes a little more than two weeks after the attorney general and Voices for Life reached a settlement agreement which allowed for TPRs to be disclosed to the public. As part of that agreement, the parties said that the reports could be redacted to protect the patients’ privacy.
However, Joven was skeptical that blacking out patients’ information would prevent the women who had received abortion care from being identified.
“The Court preliminarily determines that, notwithstanding reassurances of counsel for the Department (of Health) and VFL, the settlement agreement would not sufficiently protect against the disclosure of confidential medical records,” Joven wrote in the order. “At the hearing for Plaintiffs’ request for a temporary restraining order, counsel could not specify the information the Department would redact and protect from release as a confidential medical record.”
Five months ago, Marion County Superior Court Judge Timothy Oakes reached the same conclusion as Joven that TPRs are not public records.
Oakes’ September 2024 ruling was in the case brought by Voices for Life against the Indiana Department of Health. The nonprofit was suing for access to the TPRs, after the health department stopped releasing them once the state’s near-total abortion ban took effect in August 2023.
Pointing to patient privacy laws, the department was concerned that with so few abortions taking place, the women receiving abortion care could be identified through the information included on the reports. Department officials cited an advisory opinion from the Indiana public access counselor, who said the information in the TPRs could be “reverse engineered” to identify the patients.
Oakes granted the health department’s motion to dismiss the case: Voices for Life v. Indiana Department of Health et al., 49D02-2405-MI-019876. The judge ruled the TPRs are not public records based on an analysis of the state statute, legislative history, and the parties’ legal briefs and oral arguments.
Voices for Life filed a notice of appeal in October, but never submitted a brief with the Court of Appeals of Indiana. Instead, the nonprofit and the attorney general’s office, which was representing the health department before the appellate court, announced Feb. 5 that they had negotiated a settlement to the case.
Although Bernard and Rouse had intervened in the Voices for Life case, they were not included in the settlement agreement. The physicians filed their own lawsuit to stop the release of the TPRs after the Court of Appeals dismissed the Voices for Life case.
Joven used the doctors’ arguments as the basis for his ruling.
In particular, Joven found that TPRs are medical records because they contain the “diagnosis, treatment or prognosis of the patient.” Also, he noted the statute requiring the health department to compile a quarterly report of the TPR data suggests the terminated pregnancy documents, themselves, were not meant to be public. The statute directs the health department to ensure that “no identifying information” about a patient is contained in the quarterly public report, which, Joven concluded, is “demonstrating a belief that the TPRs contain such identifying information in the first place.”
Moreover, Joven reiterated the physicians’ assertion that they would face “an irreconcilable conflict of legal duties” if the TPRs are subject to public access. Bernard and Rouse argued that they could face professional discipline if they submit the TPRs to the state, since the Indiana Medical Licensing Board has ruled that disclosing patient medical information, like that contained in the TPRs, violates patient privacy. However, the doctors noted, they could be charged with a crime if they do not submit a complete TPR to the health department for every abortion performed.
“In light of the foregoing, the Plaintiffs are likely to suffer serious, irreparable harm unless the Court enters relief immediately,” Joven wrote in his order.
Bernard and Rouse are being represented by Kathrine Jack of the Jack Law Office in Greenfield and the Lawyering Project, a nonprofit law firm focused on defending reproductive rights.
“The court’s ruling will temporarily prevent the Department of Health from releasing abortion patients’ personal health information to the public,” Stephanie Toti, executive director of the Lawyering Project said in a statement. “We will continue working to safeguard patient privacy and prevent the mishandling of sensitive health data by government agencies.”
In addition to the court battles over TPRs, Attorney General Rokita is being investigated by the Indiana Supreme Court Disciplinary Commission for his conduct related to the terminated pregnancy reports.
Rokita issued an official, advisory opinion in April 2024, asserting that the TPRs were public records and should be released. Also, in a news conference, he said individuals and organizations would have grounds to sue if the Indiana Department of Health did not turn over the reports.
The disciplinary complaint filed against Rokita asserted his remarks during the news conference that the public could sue the health department conflicts with his duty as attorney general to represent all state agencies, including the IDOH.
In fact, the health department obtained outside counsel to defend against the Voices for Life lawsuit because of Rokita’s potential conflict in representing the agency he said should release TPRs. However, when the case moved to the Court of Appeals, the attorney general’s office took over representing the IDOH and has continued to represent the department in the lawsuit filed by Bernard and Rouse.
The disciplinary commission’s investigation into his conduct is ongoing.
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.
