By

Indiana Capital Chronicle

Nov. 3, 2022 

Two Indianapolis doctors — including one at the center of a controversial abortion case over the summer — filed suit Thursday against Attorney General Todd Rokita (above) to block his office from continuing a “baseless investigation into physicians who provide abortion care.”

The suit claims Rokita overstepped his statutory limits when investigating Dr. Caitlin Bernard, using meritless claims to launch an overly-broad investigation. The Attorney General’s office said Thursday it would defend itself in court.

Bernard provided abortion care to a 10-year-old rape victim from Ohio after that state’s strict anti-abortion laws prevented her from seeking care in her home state. Rokita and the Ohio Attorney General Dave Yost accused Bernard of fabricating the story and improperly filing paperwork, both later determined to be false allegations.

During an interview with Fox TV host Jesse Watters on July 13, Rokita called Bernard an “abortion activist acting as a doctor,” saying he would gather evidence and investigate Bernard.

When news reports later emerged documenting the arrest of the girl’s alleged assailant and Bernard’s proper filing of the required paperwork, attorneys for the doctor sent a cease-and-desist letter to Rokita. The filing advised him to stop making false and misleading statements about the doctor.

Bernard previously filed a tort claim related to a possible defamation claim against Rokita for his comments but has not filed a lawsuit on that matter.

The new lawsuit

The suit filed Thursday claims that Rokita issued subpoenas for medical records related to care provided by Bernard or her medical partner, Dr. Amy Caldwell, violating the privacy of those patients seeking abortion care. Those patients did not file any consumer complaints.

The complaints were from individuals who have never been a patient of either doctor, who lack any personal knowledge of their work and provide no explanation of their validity, according to attorneys.

Rokita and Scott Barnhart, the chief counsel and director of the Consumer Protection Division in Rokita’s office, are accused of exceeding their authority.

“Defendants will continue to unlawfully harass physicians and patients who are engaged in completely legal conduct and even though neither the physicians nor patients have any complaints about their relationship,” the suit reads.

The attorneys warn that the Attorney General’s office could extend that harassment to all of Indiana’s licensed professionals. The office, they say, is limited by the General Assembly in its ability to conduct investigations into complaints against licensed professionals unless the consumer complaint has merit.

According to the lawsuit, the office cannot investigate frivolous complaints, such as those where the complainant doesn’t have personal knowledge relating to the relevant care. These investigations, with limited exceptions, must be narrowly focused and kept confidential.

“The Attorney General has wholly ignored the General Assembly’s fine-tuned structure for handling complaints regarding licensed professionals and has engaged in precisely the type of overbearing, harassing conduct that the General Assembly sought to prohibit,” the suit reads.

Complaints didn’t come from patients

The suit details seven complaints filed against Bernard shortly after she told the IndyStar about the 10-year-old’s abortion care, all of which indicated they’d seen news coverage of the procedure but had never sought care from Bernard themselves. Most complainants don’t live in Indiana.

But Rokita, through Barnhart, notified Bernard they were launching investigations based on those complaints. Attorneys say they didn’t determine whether or not the complaints had merit before initiating the investigation as required by Indiana code.

Physicians who perform abortions in Indiana must file a terminated pregnancy report, which documents the patient’s age and reason for seeking the procedure. Public records show Bernard filed the report within her allotted time frame in early July, denoting the child’s sexual abuse.

Though Rokita’s office had this filing in their possession, the office issued subpoenas to Bernard in late August investigating whether she had properly reported the rape, which Bernard’s attorneys called a “fishing expedition.”

The lawsuit reads, in part, “The Attorney General’s and Director’s improper conduct dissuades patients who need emergency abortions from seeking care. 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.”

Attorneys called for an injunction that would bar the Attorney General’s office from pursuing similarly expansive investigations based on claims without merit.

But the office said Thursday it had complied with all requirements in its investigations.

“By statutory obligation, we investigate thousands of potential licensing, privacy and other violations a year. A majority of the complaints we receive are, in fact, from nonpatients,” said Rokita’s Press Secretary Kelly Stevenson. “Any investigations that arise as a result of potential violations are handled in a uniform manner and narrowly focused. We will discuss this particular matter further through the judicial filings we make.”

Bernard is being represented by Indianapolis Attorney Kathleen Delaney and pro bono counsel Arnold & Porter, an international law firm.

Indiana Capital Chronicle is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Indiana Capital Chronicle maintains editorial independence. Contact Editor Niki Kelly for questions: info@indianacapitalchronicle.com.

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