Judge Finds Indiana Attorney General Violated Law, Denies Abortion Doctor’s Request

Indiana Attorney General Todd Rokita speaks in Schererville, Ind., on Nov. 8, 2022. Darron Cummings/AP Photo

An Indiana judge has rejected a doctor’s request to limit an investigation into her carrying out an abortion for a 10-year-old, while also finding that the state’s attorney general violated the law.

Both developments were part of a Dec. 2 ruling that came after Dr. Caitlin Bernard, who performed the abortion, sued Indiana Attorney General Todd Rokita, a Republican, for allegedly not following state rules on conducting investigations into doctors.

Bernard asked the Marion County Superior Court to stop Rokita from investigating “invalid consumer complaints” against her and her co-plaintiff, Dr. Amy Caldwell. But in the new order, Marion County Judge Heather Welch rejected the request.

Caldwell no longer has standing because the state investigation into her has already been closed, Welch said. And while Bernard was correct that Rokita violated a confidentiality provision in the law regarding investigating consumer complaints, she didn’t prove other factors that are required to impose a preliminary injunction, Welch ruled.

Both sides claimed victory.

“This is a win for patient privacy rights in the practice of medicine and for properly reporting child abuse,“ Rokita said in a statement, ”but for the doctor’s violation of her patient’s privacy by going to the news media, this story would have never been publicized.”

“Today Judge Welch ruled that Attorney General Todd Rokita violated his duty of confidentiality under Indiana law,” Kathleen DeLaney, a lawyer representing Welch, said in a statement.

More on the Ruling

Bernard had argued that state law governing consumer complaints meant the attorney general’s office needed to make an initial determination for each complaint it receives and that it can only investigate complaints that have merit and indicate a violation of the law.

She also said that she’s suffering irreparable harm from Rokita’s investigation and statements.

Welch said the doctor’s complaint misstated the law and that the attorney general’s office didn’t have to make a merit determination before starting investigations.

“While some of the consumer complaints appeared more meritorious than others on their face, the statute permits the Director and Division to investigate them all the same before coming to any conclusion,” the judge said.

Welch also said that Bernard hadn’t met the burden of showing irreparable harm arising from the investigation. The judge, did, however, find that the burden was met, based on Rokita’s public statements.

Indiana University Dr. Caitlin Bernard speaks during a rally in Indianapolis on June 25, 2022. Jenna Watson/The Indianapolis Star via AP

Confidentiality Violation

Indiana law requires the attorney general’s office not to disclose any information about an investigation, with limited exceptions. Defendants haven’t established that the exceptions applied in the case, so no public disclosure should’ve been made, Welch concluded.

Rokita disclosed the investigations into Bernard on July 13 during an appearance on Fox News, saying in part: “And then we have this abortion activist acting as a doctor with a history of failing to report. So, we’re gathering the information. We’re gathering the evidence as we speak, and we’re going to fight this to the end, including looking at her licensure. If she failed to report it in Indiana, it’s a crime for—to not report, to intentionally not report.”

The statement came after Bernard spoke to an Indianapolis Star reporter, who published an article about the effect of the U.S. Supreme Court striking down Roe v. Wade. Bernard told the reporter she had performed an abortion for a 10-year-old girl from Ohio and that the girl was the victim of sexual abuse.

The reporter initially overheard Bernard speaking about the matter with another doctor and later approached Bernard to confirm the account, according to court papers.

The girl was raped by an illegal immigrant, authorities in Ohio later confirmed. Bernard reported the abortion but listed the alien, who is 27, as a teenager, according to documents obtained by The Epoch Times. The Indiana University School of Medicine, which employs Bernard, determined she didn’t violate privacy laws.

Rokita later made other public statements about the case.

Defendants argued that Bernard speaking about the matter enabled them to, but the law doesn’t support that claim, according to the ruling.

“There is nowhere in the statute that stages the attorney general’s obligation to keep the investigation confidential is relieved when the subject of the investigation makes it public,” she said. “The public statements made by the Attorney General prior to the referral of the matter to the Medical Licensing Board, therefore, are clearly unlawful breaches of the licensing investigations statute’s requirement that employees of the Attorney General’s Office maintain confidentiality over pending investigations until they are so referred to prosecution.”

Referral

Rokita’s office in late November referred the case to the state licensing board.

That means the court couldn’t conclude that the defendants remain in violation of the confidentiality provision.

Because of the referral, “the Court no longer has jurisdiction to make any factual findings over these ultimate questions, even for the purposes of a preliminary order,” Welch said.

The judge rejected the request for a preliminary injunction but noted the ruling isn’t on the merits of the case, which is still ongoing.

Marion County Judge James Joven is set to take over the case after Welch granted a request from Rokita for a special judge.