The following report was written for The Indiana Citizen by veteran Indiana legal journalist Marilyn Odendahl.

Feb. 27, 2023

Indiana Attorney General Todd Rokita’s effort to “relitigate a single issue” in a court ruling he declared a “win” is being characterized as “improper” and a “guise,” in a filing Thursday  by lawyers for Drs. Caitlin Barnard and Amy Caldwell, two OB/GYNs who perform abortion healthcare.

Last month, Rokita moved to strike language in the order granting dismissal of the physicians’ case against him which found he “irreparably harmed” Dr. Barnard when he violated confidentiality rules.

The plaintiffs in Bernard and Caldwell v. Rokita et al., 49D13-2211-MI-038101, filed their opposition to the attorney general’s motion to strike Feb. 23 in Marion County Superior Court.  They are seeking to keep the order in its original form, arguing the defendants’ motion is “meritless” and the attorney general is trying to “relitigate a single issue.”

Also, Bernard and Caldwell have filed a motion for a change of judge. Their case was initially assigned to Judge Heather Welch; per an earlier motion for a change of judge filed by the attorney general, the matter was reassigned to Judge James Joven. The plaintiffs now argue that although the defendants’ motion for a new judge was granted, the parties had not reached an agreement on who the new judge should be.

The Indiana Attorney General’s office did not respond to a request for comment.

Bernard and Caldwell filed their complaint against Rokita and Scott Barnhart, chief counsel and director of the consumer protection division in the office of the Indiana Attorney General, in November 2022. They asked the court to prohibit the attorney general from publicly discussing his office’s investigation into Bernard after she acknowledged she performed an abortion on a 10-year-old Ohio rape victim.

In a December order in Bernard, Judge Welch denied the plaintiffs’ motion for a preliminary injunction to stop the attorney general from speaking publicly. But she did conclude Rokita “clearly violated Indiana law” by publicly discussing the confidential investigations into Bernard and Caldwell.

The plaintiffs then filed a motion to dismiss the case since the matter became moot when the Indiana Medical Licensing Board took over the investigation. With the case now before Joven, the attorney general has enlisted the Washington, D.C., based firm of Schaerr Jaffe to convince the judge to remove Welch’s finding that the attorney general disobeyed statutes prohibiting him from speaking publicly about investigations, a development first reported by The Indiana Citizen.

Bernard and Caldwell maintain the attorney general is too late in presenting his arguments to the court, saying, “This case is closed, the Court no longer has jurisdiction, and all relevant deadlines have expired.” Moreover, they argue the evidence and arguments presented at the hearing on the preliminary injunction support Welch’s finding.

The plaintiffs specifically point to Rokita running afoul of Indiana Code section 25-1-7-10(a) which mandates that all complaints and corresponding information be held in “strict confidence” until the attorney general files a notice to prosecute with the appropriate licensing board.

 Rokita contends Bernard, herself, was the one who disclosed to the public the existence of the ongoing investigation. However, the plaintiffs counter in their opposition motion that the record is replete with evidence that the attorney general “repeatedly disregarded” confidentiality requirements.

Bernard was notified on July 12, 2022, of several consumer complaints regarding the pregnancy she terminated for the 10-year-old girl. The next day, Rokita went on national television and talked about investigating Bernard. He told Fox News, “We’re gathering the evidence as we speak, and we’re going to fight this to the end, including looking at her licensure.”

On July 14, 2022, the attorney general issued a press release, identifying Bernard as the subject of an investigation that could affect her medical license.

The plaintiffs argue that now the attorney general is attempting to twist the court’s conclusion by claiming the law does not prohibit him from publicly disseminating information about investigations that are not tied to consumer complaints.

“But at no point in the preliminary injunction proceeding (or otherwise) did  the Attorney General argue that his public statements did not violate the confidentiality statues because his office was undertaking a separate investigation of Dr. Bernard, unrelated to the consumer complaints at issue in the case,” Bernard and Caldwell argue in their motion. “The Court’s conclusion was well rooted in the evidence and there is no basis to disturb its evaluation of the evidence.”

Marilyn Odendahl has spent her journalism career writing for newspapers and magazines in Indiana and Kentucky. She has focused her reporting on business, the law and poverty issues.

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