September 2023 update on Dr. Caitlin Bernard and related issues
20 September 2023
Dr. Caitlin Bernard is an Indiana University OB-GYN, professor and abortion rights activist who recently performed an abortion on a 10 year old Ohio girl. She spoke briefly about it to a reporter without disclosing any personally identifiable information, but the Indiana Attorney General then announced an investigation into the matter before the Indiana Medical Licensing Board.
My prior related essays:
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
There have been 4 developments since my last essay:
1. Todd Rokita filed a lawsuit against Indiana University Health
Indiana Attorney General Todd Rokita recently filed suit against Indiana University Health claiming that its defense of Dr. Caitlin Bernard before the Licensing Board damaged the confidentiality rights of their patients. See also here.
Rokita initially filed a claim against Dr. Bernard with the Indiana Medical Licensing Board for failing to file reports and for invasion of privacy. Although Dr. Bernard’s employer, Indiana University Health and the American Medical Association indicated that there was no invasion of privacy and the AMA called her actions “exemplary”, the Board disagreed, reprimanded her and fined her $3,000 for the invasion of privacy of a patient. The Board dropped the “failure to file” claim since public records indicated that the proper reports were timely filed.
Dr. Bernard declined to appeal that decision:
My goal has always been to protect and support my fellow medical providers and people who need medical care, including abortions. I want to make it clear that my case should not create a precedent that allows politicians to go after physicians who provide reproductive care or any other care that politicians disagree with. I am hopeful that my example shows how important it is for medical providers to be brave advocates and speak up when needed. At this point, I have no confidence that an appeal would change the outcome of this decision.
Although Rokita’s lawsuit against IU Health appears frivolous to me, the possible silver lining is that the court may overturn the irrational decision of the Indiana Medical Licensing Board because Dr. Bernard clearly did not violate her patient’s privacy:
The board’s action earned—and merited—national and international scorn among medical and legal ethics experts.
The criticism focused on two areas.
The first was that the information Bernard had disclosed—the age of the patient, the medical procedure and the state where the patient resides—routinely can be found in medical journals and was well within accepted guidelines. Rokita himself had disclosed as much or more information about the little girl during his ceaseless attempts to attract attention from national right-wing media.
The second was that the licensing board is populated entirely with political appointees. These included board members who had made substantial campaign contributions to Rokita and yet chose not to recuse themselves. Source
As I noted, there was no rational basis for the decision of the Indiana Medical Licensing Board:
This administrative board created a new “Mahler standard” that expands on the HIPAA privacy law which prevents disclosure of “protected health information” that either identifies the individual or for which there is a reasonable basis to believe it can be used to identify the individual. Under the Mahler standard, there is a privacy violation if it “certainly is possible” that information disclosed could identify the patient. This is nonsense legal reasoning that should be overturned.
Of course, the Indiana Medical Licensing Board has no authority or competence to expand the interpretation of the HIPAA law.
In effect, Rokita and the State of Indiana are censoring physician speech and attempting to silence pro-abortion rights speech.
2. The Indiana Supreme Court Disciplinary Commission filed charges against Todd Rokita
On 18 September 2023, the Indiana Supreme Court Disciplinary Commission filed three charges against Rokita, all related to his breaches of confidentiality as Attorney General of the State of Indiana.
One of the allegations outlined in the disciplinary complaint states that Rokita improperly disclosed on national television last summer that his office was investigating Indianapolis OB-GYN Dr. Caitlin Bernard. Doing so could be deemed a violation of Indiana’s Rules of Professional Conduct, which prohibits such a disclosure if the investigation is still pending.
At the time of Rokita’s statements, the Bernard investigation was still pending, and a formal complaint against the doctor had not yet been filed with the Indiana Medical Licensing Board.
The complaint additionally alleges that by publicly referring to Bernard as an “abortion activist acting as a doctor — with a history of failing to report,” Rokita broke a professional rule that bars attorneys from using means “that have no substantial purpose other than to embarrass, delay, or burden a third person.”
A third count contends that — because Rokita disclosed his office’s investigation into Bernard before making a referral to the Medical Licensing Board — he broke another professional rule that describes any lawyer’s actions that are “prejudicial to the administration of justice” as misconduct.
The complaint against Rokita was filed by Lauren Robel, former IU law school dean, and Don Lundberg, former executive director of the disciplinary commission.
Lundberg told IndyStar that other than this, he has never filed a grievance in his 48 years of practicing law.
"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." Source.
3. The Indiana governor’s office interfered with Dr. Bernard receiving an award
Dr. Bernard was nominated to receive Indiana’s Torchbearer Award to honor Hoosier women, particularly those who have demonstrated “courage, perseverance and compassion.” The judges who selected Bernard were former Torchbearers themselves and described Bernard as “a woman who took a stand for reproductive health care while withstanding threats, national vitriol and state persecution.”, However, someone from the Governor’s office removed her name from the list.
4. Ohio citizens will vote in November on a constitutional amendment supporting abortion rights, but the Republican Party is sabotaging the process
On 7 November 2023, Ohio citizens will vote for a citizen initiated constitutional amendment supporting abortion rights (note that Dr. Bernard’s case was about performing an abortion on a 10 year old Ohio girl who was unable to get an abortion there). The Republican Party and others opposing abortion rights set up a special election in August to change the rules of this November election that it thought it would otherwise lose by raising the threshold for passage of this amendment from 50% plus one to 60%. However, the provision in the August special election failed by 56.5 percent to 43.5 percent. Recently, Ohio’s Republican Secretary of State approved ballot language rife with misleading and defective language, in another attempt to win at any cost. Nonetheless, the most recent poll for this amendment to support abortion rights shows 58% support, 32% oppose and 10% are undecided.
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