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Doctor says she shouldn’t have to turn over patients’ abortion records

The Washington Post logo The Washington Post 11/20/2022 Kim Bellware
Caitlin Bernard is an OB/GYN in Indianapolis. © Kaiti Sullivan for The Washington Post Caitlin Bernard is an OB/GYN in Indianapolis.

An Indiana doctor who provided an abortion to a 10-year-old rape victim has asked a judge to stop the Indiana attorney general from accessing patient medical records as part of an investigation into consumer complaints her lawyers have called a “sham.”

Attorneys for Caitlin Bernard, an OB/GYN affiliated with the Indiana University School of Medicine, and Indiana Attorney General Todd Rokita (R) met Friday for an emergency hearing to determine whether to allow a subpoena of the 10-year-old patient’s medical charts while a lawsuit seeking to permanently halt Rokita’s investigation plays out.

Bernard’s lawyers said Rokita’s efforts to obtain the patient’s medical charts are a troubling violation of patient privacy that, if allowed, would shake trust in doctor-patient confidentiality. The state countered that Rokita’s office is allowed to access the records as it investigates complaints accusing Bernard of professional lapses.

Friday’s courtroom battle began four months after Bernard made headlines for treating the 10-year-old rape victim, who was forced to seek an abortion out of state because of Ohio’s six-week abortion ban taking effect immediately after Roe v. Wade was struck down. Since then, legal fighting has intensified and become more politicized as the landscape of abortion access in the United States continues to shift.

She provided an abortion to a 10-year-old. She’s still fighting for her patients.

The hearing is scheduled to continue Monday. Both sides on Friday raised questions of medical privacy, but with substantially different approaches.

Four expert witnesses for the plaintiffs testified on professional ethics and patient privacy. They spoke specifically to the ramifications of third-party complaints being allowed to trigger subpoenas of sensitive medical records.

“It’s asking very specific information,” said witness Kyle Brothers, a pediatrician bioethics expert from the University of Louisville who reviewed a civil investigative demand from Rokita’s office, which is sealed from the public. Brothers described the request as seeking information such as medical charts, names, addresses and other documentation, according to the Indianapolis Star.

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“This kind of disclosure, especially for a minor, is just heartbreaking,” he said, speaking to how releasing such specific medical information could affect a patient.

Rokita contends that it was Bernard who violated her patient’s privacy when she mentioned the case to a reporter for the Indianapolis Star; as part of a story on patients traveling across state lines to receive abortion access, Bernard gave an anecdote of having the 10-year-old rape victim referred to her by “a child abuse doctor” in Ohio.

Bernard’s attorney Kathleen DeLaney told reporters at a news conference after Friday’s hearing that the experts agreed it’s routine and acceptable for doctors to discuss patient cases in a “deidentified way,” leaving out names, dates of birth, county of residence or any other specifically identifying details.

“Multiple of our doctor witnesses today made the point … that going after the patients’ entire chart is itself a HIPAA violation,” DeLaney said. “Neither patient has made a complaint about the care they received; they have not put their medical care at issue in a medical proceeding or legal proceeding.”

Abortion is now banned in these states. See where laws have changed.

The Health Insurance Portability and Accountability Act, or HIPAA, limits what medical information can be shared without patients’ permission.

DeLaney’s last point is a key part of the Nov. 3 lawsuit filed against Rokita by Bernard and her medical partner Amy Caldwell alleging that he failed in his statutory due diligence to investigate whether complaints into Bernard and Caldwell had merit.

The suit argues that Rokita is relying on “facially invalid consumer complaints to justify multiple, duplicative, and overbroad investigations into law-abiding physicians.”

“The consumer complaints were from people who heard about the situation on TV or from social media,” DeLaney said at Friday’s news conference.

Once the story of the 10-year-old Ohio rape victim became national news, even earning a mention by President Biden as he condemned the U.S. Supreme Court’s overturning of Roe, Rokita made public announcements that he would investigate Bernard for potential wrongdoing.

Rokita appeared on Fox News less than two weeks after the Indianapolis Star story published and described Bernard as “this abortion activist acting as a doctor,” and he claimed without evidence that she had a history of not reporting to the required agencies.

“We’re gathering the evidence as we speak, and we’re going to fight this to the end, including looking at her licensure,” Rokita said. “If she failed to report it in Indiana, it’s a crime for — to not report, to intentionally not report.”

Bernard and her attorneys said she complied with all reporting requirements under Indiana law. Their assertion was substantiated by Indiana termination of pregnancy reports obtained by The Washington Post in July, which indicated that Bernard had properly reported performing the abortion on a child victim of rape within the state’s required three-day period. A review of Bernard’s records showed no prior complaints until after the story of the 10-year-old victim was publicized.

According to the suit, between July 8 and 12, seven people filed complaints against Bernard. In excerpts filed with the suit, the complainants do not indicate that they are patients of Bernard’s or even residents of Indiana. One falsely alleged that Bernard “kept knowledge of the rape of a 10 year old from authorities” while another appears to come from an Ohio resident who inaccurately described Bernard’s experience treating the 10-year-old as “misinformation” meant to diminish Ohio and demean “pro-life” supporters. Another complaint simply attached the results of a search-engine query.

Bernard, who is expected to testify Monday when Rokita’s lawyer’s call their witnesses, said in a statement after Friday’s hearing that her obligation to ethical patient care includes protecting patient privacy.

“Make no mistake, the intent of this so-called investigation is to silence physicians who provide abortion care and make people seeking abortion care afraid to do so,” Bernard said.

Deputy Attorney General Patricia Erdmann told reporters after the hearing that “the office of the attorney general will speak through its court filings.” In a brief statement after the hearing, Rokita’s office said it would “continue to push forward in this legal battle to ensure every patient’s privacy is protected in Indiana.”

A final ruling on the preliminary injunction is expected next week.

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