Doctor who provided abortion to 10-year-old seeks to bar AG access to records

Thursday, November 24, 2022

An Indiana physician who said she performed an abortion on a 10-year-old rape victim in June is awaiting a ruling from a judge on whether the state's attorney general will be allowed to access patients' medical records and investigate abortion providers.

A lawsuit filed earlier this month by Dr. Caitlin Bernard and her colleague, Dr. Amy Caldwell, accuses Indiana Attorney General Todd Rokita of infringing on patient-doctor confidentiality and claims that he is targeting physicians who provide legal medical care including abortions, according to court filings.

The two physicians filed a request for a preliminary injunction against Rokita and Scott Barnhart, the Director of the Consumer Protection Division of the attorney general's office, asking a judge to prohibit them from investigating "invalid consumer complaints against [physicians and their patients] and from violating statutory confidentiality requirements," according to court documents.

They are asking the court to halt "sham investigations" being conducted based on "bogus" consumer complaints and to keep the attorney general's office from being able serve subpoenas seeking the entire medical charts of patients who have received abortion care, according to Kathleen DeLaney, a lawyer for Bernard and Caldwell.

Marion Superior Court Judge Heather Welch is expected to make a decision on the request for an injunction this week.

The plaintiffs claim that without court intervention, Rokita will "continue to unlawfully harass physicians and patients who are engaged in completely legal conduct," according to the suit.

In June, Bernard publicly revealed that she provided abortion care for a 10-year-old rape victim who traveled from Ohio to Indiana for care.

At the time, abortions in Ohio were banned at 6 weeks.

A restrictive law in Ohio banning nearly all abortions has since been put on hold by a judge as a legal challenge proceeds. An Ohio man was charged with raping and impregnating the 10-year-old girl who police say then traveled out of state to receive abortion care.

Rokita later appeared on Fox News and accused Bernard of failing to properly report an abortion and revealed that his office was investigating her.

"We believe she has failed to carry her burden of proof and that the Office of the Attorney General should be free to continue its statutory duty to hold physicians and other practitioners to the standards of the law," a spokesperson for the attorney general's office said in a statement to ABC News on Wednesday.

The office also placed blame on Bernard for telling a newspaper about the abortion case, claiming it was "to further her own political agenda."

"There is no defensible reason for this doctor to shatter her 10-year-old patient's trust by divulging her abortion procedure to a reporter so her traumatizing experience could be used in the polarizing abortion debate on the heels of Dobbs," a spokesperson for the attorney general's office said.

The spokesperson added, "The evidence strongly suggests that the doctor violated the mandatory reporting law, which required her to immediately report the child's abuse to Indiana authorities. Only by reporting to Indiana authorities immediately, as called for by statute, might the little girl have been spared from potentially being sent back to her perpetrator."

Abortion rights in Indiana hang in the balance. The state was the first in the country to pass an abortion ban after the U.S. Supreme Court issued a decision in June to overturn Roe v. Wade ending federal protections for abortion rights.

But, abortions resumed in the state after a judge granted a request for a temporary hold on the ban's enforcement while a legal challenge continues in court. Abortion providers who filed the legal challenge claim the ban violates the Indiana Constitution.

The ban makes providing an abortion a level 5 felony, only allowing three exceptions for when a woman's life is in danger, the fetus is diagnosed with a fatal anomaly or if the pregnancy was a result of rape or incest. The near-total ban had replaced a previous 22-week abortion ban.

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