Mon. Dec 5th, 2022

Washington — Dr. Caitlin Bernard, the Indianapolis obstetrician-gynecologist who provided an abortion to a 10-year-old rape victim from Ohio, is suing Indiana Attorney General Todd Rokita, alleging he has relied on “baseless” consumer complaints to launch “overbroad” investigations into physicians who provide abortion care, and issued subpoenas seeking the confidential medical records of their patients.

The lawsuit, filed by lawyer Kathleen DeLaney on behalf of Bernard and her medical partner Dr. Amy Caldwell in Indiana Commercial Court in Marion County, claims Rokita opened investigations into seven consumer complaints filed against Bernard after she came under scrutiny for performing the medication-induced abortion on June 30, days after the Supreme Court reversed Roe v. Wade.

Bernard was thrust into the national spotlight after she told the Indianapolis Star that a child abuse doctor in Ohio had called her about the pregnant 10-year-old, who was seeking an abortion out of state due to Ohio’s near-total abortion ban. A man was arrested and charged with rape two weeks later. Ohio’s abortion law, which bans the procedure once an embryonic heartbeat is detected, typically around six weeks of pregnancy, took effect after the Supreme Court issued its decision overturning Roe.

In an interview with “CBS Evening News” anchor and managing editor Norah O’Donnell in July, Bernard couldn’t confirm she provided the abortion due to privacy laws, but state records confirmed that she did, and her suit filed Thursday references her “providing abortion care to this patient.”

After opening investigations into the complaints, Bernard’s lawyers said Rokita and Scott Barnhart, director of the Consumer Protection Division of the attorney general’s office, issued “sweepingly broad document subpoenas” in August to a hospital system seeking the full medical file of the child. The subpoenas, they wrote, “serve no legitimate investigative purpose.”

“The attorney general’s and director’s improper conduct dissuades patients who need emergency abortions from seeking care,” they told the court. “It also threatens patients seeking legal abortions that their most personal and private medical records and health care decisions could be exposed as part of a meritless investigation.”

In addition to the investigations into Bernard, the suit claims Rokita also launched a probe into Caldwell’s actions in May on the basis of a consumer complaint filed based on a “termination of pregnancy report,” required for all abortions performed in the state, that was obtained through an open records request. 

In late July, Rokita served Caldwell with a subpoena for all medical records relating to the patient identified in the report, and, in October, issued a subpoena to a local health care clinic seeking medical records for the same patient. Neither Caldwell nor the patient were notified of the subpoena.

Bernard’s lawyers said they are aware of at least five subpoenas issued by Rokita’s office, but believe there could be more as they’re being sent to the entities that may have medical records.

“The attorney general’s overreach in seeking these irrelevant medical records poses a significant threat to patient privacy and the confidentiality of medical records,” they said. “Because they lack notice of the document subpoenas, physicians like Drs. Bernard and Caldwell cannot take steps to ensure their patients’ most confidential and personal information is protected.”

Bernard and Caldwell are asking the court to block Rokita and his office from initiating investigations without assessing the merit of each consumer complaint, and to block the attorney general from issuing subpoenas in connection to an investigation based on a consumer complaint without determining whether it has merit.

Kelly Stevenson, a spokesperson for Rokita, said the attorney general’s office investigates “thousands” of potential licensing, privacy and other violations each year, as obligated by state law.

“A majority of the complaints we receive are, in fact, from nonpatients. Any investigations that arise as a result of potential violations are handled in a uniform manner and narrowly focused,” Stevenson said in a statement to CBS News. “We will discuss this particular matter further through the judicial filings we make.”

After Bernard’s involvement became public over the summer, top Republicans accused her of lying about the incident, and Rokita pledged to investigate whether she violated state law, which requires doctors to report abortions performed on patients younger than 16 within three days of the procedure. Referring to Bernard as an “abortion activist acting as a doctor,” Rokita said he had sought documents proving Bernard complied with Indiana requirements and said that her licensure could be affected if she failed to do so.

Records obtained by CBS News, and cited in the lawsuit, show Bernard submitted the required termination of pregnancy report on July 2, two days after she performed the abortion on the 10-year-old. Communications that accompanied the report included information showing that Bernard was cooperating with authorities investigating the rape of the girl, according to the court filing.

A 27-year-old Ohio man was arrested and charged with the rape in mid-July, and police said he confessed to the crime. A detective with the Columbus, Ohio, police testified that law enforcement learned of the girl’s pregnancy through a referral her mother made to Franklin County Children Services on June 22, and the abortion was performed in Indianpolis on June 30.

The lawsuit from Bernard and Caldwell accuses Rokita of launching his investigations — and subsequently issuing subpoenas — on the basis of “frivolous” complaints, in violation of Indiana’s statutory framework for investigating consumer complaints against licensed medical providers.

Seven people filed the consumer complaints against Bernard between July 8 and July 12, according to the suit, days after she was revealed as the doctor who performed the abortion on the Ohio girl. Many were submitted by people who did not purport to live in Indiana, and all said they saw news stories or social media posts about Bernard’s patient.

“The face of the consumer complaints showed the allegations to be based on rumor, hearsay, or speculation,” Bernard’s lawyers wrote.

In one complaint, in a section seeking “incident details,” one individual wrote Bernard “kept knowledge of the rape of a 10 year old from authorities,” suggesting she failed to comply with Indiana’s reporting requirement, according to a copy cited in the lawsuit. The person also included vague contact information for Bernard, listing her street address as “U of I” and phone number as a series of fives.

Another complaint referenced Bernard’s television appearances with a link to an MSNBC interview and wrote that “as a citizen of Ohio I feel that this misinformation (aka LIE) harmed my state’s image and is a malicious act intended to harm people such as myself that hold a pro-life position.”

The unidentified complainant continued: “I have personally experienced hostility against me with specific mention of Dr. Bernard’s interviews and her claim of a 10 year old Ohio girl being forced to have an abortion in Bernard’s Indiana clinic. If I am continued to be harrassed in this manner I will be filing a personal injury case against Dr. Bernard.”

Also included in the filing was a photo showing online search results about the abortion, with red flags pointing to Bernard’s name, according to the lawsuit.

In a third complaint cited in Bernard’s suit, the filer is asked “what was the very first contact between you and the individual/business,” and, next to the box checked “other,” wrote “reported in the US media and president of the United States.”

“These consumer complaints were facially valid and no reasonable prosecutor could determine they have merit,” Bernard’s lawyers wrote.

Additional complaints that gave rise to investigations by the Indiana attorney general’s office included one that was based on “news stories” that claimed Bernard “failed to report sexual abuse in a child,” and another that stated, without naming Bernard, that “doctor did not report rape of 10 year brought to indy from Ohio foe [sic] abortion.” The complainant listed herself as the entity the complaint was filed against and provided a phone number of “317,” according to the court filing.

“The attorney general and director opened multiple investigations into Dr. Bernard despite the obvious deficiencies in all the consumer complaints and the fact that publicly available information indicated that the complaints were frivolous,” Bernard’s lawyers argued, citing the termination of pregnancy report she filed, consistent with Indiana law.

Indiana became the first state to pass a near-total ban on abortion after the Supreme Court’s decision ending the constitutional right to an abortion. The state legislature in August approved the law, which includes exceptions in cases of rape, incest and to protect the life of the mother. The ban took effect Sept. 15, but the Indiana Supreme Court  blocked its enforcement after abortion providers challenged the measure in state court, arguing it violates the state constitution.



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