November 2023 update on Dr. Caitlin Bernard and related issues
9 November 2023
This essay updates the fascinating but terrifying story of Caitlin Bernard, M.D. an Assistant Professor of Clinical Obstetrics & Gynecology at Indiana University who continues to be targeted by Indiana’s Attorney General Todd Rokita for performing an abortion on a 10 year old Ohio girl and discussing it, in general terms, with a reporter. After Rokita’s complaint, she was reprimanded by the Indiana Medical Licensing Board and ordered to pay a fine of $3,000 based on their determination that she violated the HIPAA law on patient privacy, although Donna Shalala (the author of HIPAA), the American Medical Association and Indiana University indicated that there was, in fact, no HIPAA violation.
Prior posts:
The State of Indiana is censoring physician speech, 5 June 2023
Indiana physicians - your ability to practice medicine is threatened, 19 June 2023
Update on the State of Indiana's attack on Dr. Caitlin Bernard, 24 July 2023
September 2023 update on Dr. Caitlin Bernard and related issues, 20Sep23
1. Dr. Bernard has a podcast discussing her hearing
Dr. Caitlin Bernard, the OB-GYN who was targeted by Indiana’s attorney general after providing abortion care to a 10-year-old rape victim from Ohio, shared her experience fighting for her medical license and her fears for the future in a new podcast series. The Nocturnists: Post-Roe America is a seven-part series that interviews providers about what their personal and professional lives have been like since Roe v. Wade fell last year, per Indiana Capital Chronicle.
During the fifth episode of the podcast, Bernard reflected on her hearing before the state medical licensing board in May. Attorney General Todd Rokita pursued punishment of the doctor after she shared a personal anecdote about abortion care with the Indianapolis Star, though she didn’t provide identifying details about the patient. Rokita’s quest culminated with the Indiana Medical Licensing Board determining Bernard still violated patient privacy laws and fining her $3,000. The board ultimately concluded the doctor properly reported the abortion to the state.
Bernard said in the podcast that the hearing started with the board interrogating her about her tattoo of a hanger and whether she should be forced to answer questions about it. She continues to practice obstetrics in Indiana but wonders if she’ll be targeted again for providing an abortion to protect a patient’s health. “What happens if we do her abortion and we put it on the terminated pregnancy report,” Bernard pondered. “It gets sent to Indiana Right to Life. They send a complaint to the Attorney General’s office. I’m back in a hearing again.”
2. Indiana Attorney General Todd Rokita is reprimanded by the Indiana Supreme Court for his comments on Dr. Bernard
The opinion states it was misconduct for Rokita to describe Dr. Caitlin Bernard as an “abortion activist acting as a doctor — with a history of failing to report.” Rokita made the comments in July 2022 on a Fox News show hosted by Jesse Watters.
Justices Mark Massa, Geoffrey Slaughter and Derek Molter agreed in the opinion released Thursday that Rokita violated attorney conduct rules. Chief Justice Lorretta Rush and Justice Christopher Goff, in a dissenting opinion, said the discipline was too lenient given Rokita’s position as attorney general.
The Supreme Court's opinion Thursday specifically found that Rokita violated rules that say a lawyer cannot make public statements about an investigation that has a likelihood of "materially prejudicing" the proceeding and that a lawyer cannot "use means that have no substantial purpose other than to embarrass, delay or burden a third person."
Kathleen Clark, a law professor at the Washington University in St. Louis School of Law, said that Rokita's statement on the court's misconduct ruling does not really acknowledge what he might have done wrong. Clark also worked as counsel for Washington D.C.'s attorney general and the U.S. Senate Judiciary Committee.
"This isn't just about a technical violation of the rules, this is about abusing his office to hurt someone," Clark said. "There's gravity to that that I do not see reflected in his statement released today." IndyStar
Comments on this ruling:
The disciplinary commission investigates and prosecutes allegations of attorneys accused of violating professional conduct, and according to the Indianapolis Star, former Indiana University law school dean Lauren Robel filed one of the complaints, as did Don Lundberg, a former executive director of the disciplinary commission.
Lundberg told the Star he never filed a grievance in his 48 years of law practice.
“I think it’s a serious matter,” he said. “To maybe turn the tables a bit on the rhetoric of the right, to me, this was the weaponization of government against a physician who was working within her specialty to assist a young victim of a horrible crime. I think it’s an utter abuse of that office.” The Journal Gazette
For some important context, Indiana’s Medical Board is appointed by Gov. Eric Holcomb (R), who signed an abortion ban into law; two of the board’s seven members are reportedly donors to Rokita. Meanwhile, numerous members of the medical community including one of the authors of HIPAA—the privacy law Bernard supposedly violated—maintained that she hadn’t done anything improper and that the board’s ruling had merely been a means to chill speech and punish doctors who criticize abortion bans. A spokesperson for Physicians for Reproductive Health told Jezebel at the time that the decision to reprimand Bernard “is not the first instance of abortion providers being senselessly targeted by the state and it will not be the last.”
Even after Bernard was reprimanded earlier this year, Rokita has maintained his crusade against the doctor by filing a lawsuit against the Indiana University Health system under which she works, alleging that the whole health system violated privacy laws. The state of Indiana also reportedly blocked Bernard from receiving a prestigious award for her work this year over her abortion rights advocacy. It’s unlikely the state Supreme Court’s reprimand and $250 fine will deter him from continuing to try to make her life hell. Jezebel
The concurring—actually, in this case, “enabling” might be a better word choice—justices decided that Rokita merited the reprimand because of a statement he made during his costly and inexcusable campaign to malign Dr. Caitlin Bernard. Because the doctor had agreed to perform a legal abortion for a 10-year-old Ohio girl who had been raped, the attorney general went on national television to accuse Bernard of violating both the law and her professional responsibilities.
None of what Rokita said during that TV appearance was true.
The enabling justices decided, in fact, that the attorney general’s statement had no purpose “other than to embarrass or burden the physician.”
In the affidavit that was part of the agreement, Rokita—under penalty of perjury—admitted he had done so.
Immediately following the public announcement of the reprimand, Rokita said he had done no such thing. He claimed he agreed to the reprimand just to save Hoosier taxpayers money. The Statehouse File.com
Attorney General Todd Rokita has paid more than $190,000 in legal fees to a Washington D.C.-based law firm for legal work related to his investigation into an IU Health doctor who performed an abortion on a 10-year-old girl, records show.
Those fees do not yet include the work lawyers at Schaerr Jaffe are doing to defend Rokita personally in a legal ethics case filed Monday by the Indiana Supreme Court's Disciplinary Commission.
"Really the question you need to think about — at least this makes me think about as a taxpayer, not even as a legal professional — is they're spending all this state money just to have one medical professional be reprimanded," said Margaret Tarkington, a professor at the Indiana University McKinney School of Law.
"I mean, there's a lot of state resources that are going into something that really is a political stunt." WRTV
3. Ohio citizens pass a constitutional amendment protecting the right to abortion
Ohio has voted, 56.6% to 43.4%, to protect the right to an abortion in the State Constitution. It was Ohio’s ban on abortions that led to Dr. Bernard performing the abortion in the neighboring state of Indiana, where it was then legal. But this was a difficult campaign because of the obstacles that the Republican Party created to prevent a free and fair election on this matter:
From the governor and attorney general on down, they had leaned on the power of their offices to try to thwart the measure. They called a special election in August to try to make ballot amendments harder to pass, and purged voter rolls in recent weeks. They rewrote the language that appeared on the ballot, adopting the terms of anti-abortion groups to play to voter unease that the measure would lead to more abortions late in pregnancy.
A coalition of abortion rights groups supporting the amendment had appealed to Ohioans’ — and Americans’ — suspicion of government interference. They urged voters to keep politicians out of decisions about their health and families. New York Times
President Joe Biden issued a statement following Issue 1’s passage: “Ohioans and voters across the country rejected attempts by MAGA Republican elected officials to impose extreme abortion bans that put the health and lives of women in jeopardy, force women to travel hundreds of miles for care, and threaten to criminalize doctors and nurses for providing the health care that their patients need and that they are trained to provide.” Ohio Capital Journal
4. Still pending is Todd Rokita’s lawsuit against Indiana University Health
As noted, in September 2023, Indiana Attorney General Todd Rokita filed suit in federal court against Indiana University Health, claiming that its defense of Dr. Caitlin Bernard before the Licensing Board damaged the confidentiality rights of their patients.
Although this lawsuit appears frivolous to me, the possible silver lining is that the court may overturn the irrational decision of the Indiana Medical Licensing Board reprimanding Dr. Bernard, who clearly did not violate her patient’s privacy.
I will post significant updates on this federal case as they arise.
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