The State of Indiana is censoring physician speech
5 June 2023
Dr. Caitlin Bernard, c/o Indiana University Health
This essay discusses the complaint filed by Indiana Attorney General Todd Rokita against the academic OB-GYN physician, Dr. Caitlin Bernard for her brief discussion with a reporter about an abortion she performed in Indiana on a 10 year old girl from Ohio, where the abortion would have been illegal. As discussed below, there appears to be no legal basis for this complaint. You can decide for yourself but it appears to me that this complaint is about the Indiana Attorney General censoring political speech that he did not like.
Background
Caitlin Bernard, M.D., M.S. is an Assistant Professor of Clinical Obstetrics & Gynecology (OB-GYN) at the Indiana University School of Medicine. She has published 20 articles cited in PubMed since 2018. She is “one of just two doctors in Indiana with expertise in complicated obstetric cases like second-trimester abortions”, according to Dr. Peter Schwartz, chair of the American Medical Association’s Council on Ethical and Judicial Affairs. She has also provided patient care in Kenya for the past four years. She has written an editorial about her experience.
According to the Los Angeles Times, on 28 June 2022, four days after the Dobbs decision overturning Roe vs. Wade, Dr. Bernard attended an abortion rights rally, was talking about a case with a colleague and was overheard by a reporter for the Indianapolis Star who asked her about it. Dr. Bernard told the reporter, without divulging any confidential information, that she had received a call from a child abuse doctor in Ohio about a 10 year old girl who needed abortion care but was three days over the Ohio limit of 6 weeks. On 30 June 2022, Dr. Bernard performed the procedure in Indiana, where it was legal. On 1 July 2022, the IndyStar reported this information.
On 7 July 2022, President Joe Biden cited this case in discussing the need to safeguard abortion access.
In an article dated 12 July 2023, Ohio Attorney General Dave Yost said his office had not heard “a whisper” about this story and that there is no “biological evidence” to say it ever really happened. However, on 12 July 2022, an Ohio man was arrested for the rape of this girl. To date, the rape case is still pending and its next court date is 5 July 2023.
Indiana’s Attorney General starts his attack
On 13 July 2022, Indiana Attorney General Todd Rokita appeared on Fox TV and announced that he was “looking into” the case:
“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.”
The attorney general also claimed that Bernard has “a history of failing to report,” as a part of his roughly 2-minute appearance on the Fox News show “Jesse Watters Primetime.”
Rokita did not provide any evidence to back up his claims.
He later released a statement reiterating his speculation about whether reporting requirements had been followed, and said he was "investigating this situation." He also said there may be further action if a HIPAA violation occurred, meaning patient information was improperly shared. He did not offer evidence.
"I will not relent in the pursuit of the truth," he said in his statement.
Despite Mr. Rokita’s claims, the Indiana Department of Health produced for the IndyStar a copy of the 10 year old's terminated pregnancy report, which was filled out by Dr. Bernard. The abortion was reported two days after the abortion was performed, within the 3 day requirement under Indiana law, and was accessible to the Attorney General.
The Indiana Attorney General subsequently filed a complaint alleging that Dr. Bernard violated patient privacy laws when she discussed the case of the girl without the consent of the patient or a guardian – even while not using her name – with the Indianapolis Star. He also alleged that she did not immediately report suspected child abuse and did not keep abreast of mandatory reporting and patient privacy laws.
The HIPAA privacy law prevents disclosure of “protected health information” that “identifies the individual or for which there is a reasonable basis to believe it can be used to identify the individual.” There are no restrictions on the use or disclosure of de-identified health information. De-identified health information “neither identifies nor provides a reasonable basis to identify an individual.”
The Indiana Medical License Board ruled that Dr. Bernard violated privacy laws
On 25 May 2023, the Indiana Medical Licensing Board ruled that Dr. Bernard violated privacy laws in her handling of a 10 year old abortion patient’s information last summer but cleared her of the charge that she failed to report abuse of the girl quickly enough. She was fined $3,000 and given a letter of reprimand. The board has 90 days to finalize its decision after which both sides have 30 days to appeal to the Marion Superior Court. Details of the hearing are here.
There was no apparent legal basis for the ruling against Dr. Bernard by the Indiana Medical License Board
The Indiana Medical License Board issued its ruling that Dr. Bernard violated privacy laws despite:
The only information Dr. Bernard provided to the reporter was the patient’s age (10 years), that she lived in Ohio, the gestational age (6 weeks and 3 days) and that she received an abortion in Indiana.
Bernard's employer, IU Health, concluded that she didn't violate HIPAA privacy laws.
Dr. Peter Schwartz, chair of the Council of Ethical & Judicial Affairs at the American Medical Association, said Dr. Bernard did not violate any privacy laws and had an “affirmative obligation to speak out”.
Andrew Mahler, a former official with the federal Office for Civil Rights and an expert witness for Indiana, said the doctor violated federal privacy laws because it “certainly is possible” the girl could have been identified based on the facts Bernard gave the IndyStar reporter, although the reporter testified that Dr. Bernard gave her no information beyond that which was published. It is not clear on what basis Mr. Mahler concluded that this constitutes a privacy violation because HIPAA requirements are “reasonable basis to believe it can be used to identify the individual”, a strict test, and not “certainly is possible”, which can apply to any situation.
Paige Joyner, a privacy compliance officer and past auditor for the Office for Civil Rights, disagreed with Mahler: “The information she shared was age, gender and state," Joyner said. "That’s not protected health information."
The Indiana Medical License Board created a new privacy standard and applied it for the first time to Dr. Bernard
The Indiana Medical Licensing Board decided to change the requirements of HIPAA and add new conditions not present before, either on its own initiative, under pressure from the Indiana Attorney General or perhaps to “punish Bernard for embarrassing Republicans after the story became a viral example of the cruelty of abortion bans.” They then applied this new standard to Dr. Bernard. To my knowledge, they cited no comparable examples of discipline for violation of this new standard.
Physicians routinely discuss patients with colleagues, the media and other patients, using these nonspecific criteria of age, gender, residence and diagnosis:
Almost every medical journal includes case reports or case series from physicians that provide this basic information about patients with even more detail about the clinical history that theoretically could be used to determine who the patient was. For example, this report describes a 25 year old woman with a specific diagnosis and a detailed clinical history. Based on the standard of the Indiana Medical Licensing Board in the Bernard case, all of these case reports and case series would violate patient privacy and should subject the physicians to medical discipline.
In Indiana, at a press conference on 16 March 2020, Dr. Ram Yeleti, an Indianapolis cardiologist, appeared with the Indiana governor to warn Indiana residents about the danger of COVID by talking about the death of Indiana’s first patient. He and others revealed the patient’s age, other health issues and that he had died from the virus earlier that day in Marion County, Indiana.
Dr. Anita Joshi, a Crawfordsville, Indiana pediatrician, indicated that she speaks in general terms about the kinds of cases she is seeing to help her patients understand potential health risks. Her statement could be repeated by a large number of physicians:
I very often will say to a mom who is, for example, hesitant about giving their child a vaccine, 'Well, you know, we have had a 10 year old who has had mumps in this practice.'
Thus, in the Dr. Bernard case, the Indiana Medical Licensing Board has markedly deviated from the usual standards of privacy in their ruling, which had no basis in law and must be overturned.
Indiana has created a “chilling effect” on its physicians
Individual physicians and medical organizations have described a chilling effect from this complaint and ruling, considered a “shameful political farce”, which is being interpreted as targeting physicians who provide abortions in general or perhaps targeting anyone who disagrees with the political policies of the Indiana Attorney General.
This sends a message to all doctors everywhere that political persecution can be happening to you next for providing health care to your patients, Wilkinson said.
. . .
The decision creates a chilling effect for physicians in her field, said Dr. Caroline Rouse, who listened to her friend “be put on trial for taking care of her patient and providing evidence-based health care. And that is incredibly demoralizing as a physician.”
Over 500 Indiana physicians recently wrote an open letter asking the board to reconsider its decision, saying it sets a "dangerous and chilling precedent."
The American Medical Association has also opposed this decision, as has the Good Trouble Coalition.
Charges are pending against Indiana’s Attorney General for misconduct in this case
Indiana’s Attorney General Todd Rokita himself broke state confidentiality laws in this case and violated legal ethics:
Margaret Tarkington, a professor at Indiana University Robert H. McKinney School of Law who teaches legal ethics, was among a group of law professors who signed a letter outlining their objections to the attorney general’s remarks. In particular, Tarkington believes Rokita ran afoul of the rules of professional conduct—including Rule 3.8, which prohibits a prosecutor from making statements that will “heighten public condemnation of an accused”—by accusing Bernard of breaking the law before he had any proof to support his claim.
. . .
The professor highlighted a statement the attorney general sent on Twitter and in a press release July 14, 2022. Mr. Rokita took to social media after the abortion on the Ohio minor became public and implied Bernard may have violated state law even while conceding he did not have any evidence. Moreover, since discovering the OB/GYN did notify the proper authorities of the abortion, Mr. Rokita has not issued any retraction.
In July 2022, the Dean of Indiana University’s law school filed a grievance against Mr. Rokita:
Lauren Robel, a former dean of Indiana University's law school, filed a complaint with the Indiana Supreme Court Disciplinary Commission against Rokita on Friday, accusing him of "recklessly" making claims that weren't backed by fact.
. . .
He has a special responsibility to take care that the rule of law and the standards of the profession are protected, and a special responsibility to protect our citizens, not to launch dangerous, politicized, and factually baseless assaults against them, wrote Robel, who served as the Indiana University Bloomington provost and Executive Vice President of Indiana University between 2012 and 2021.
. . .
What General Rokita did, in essence, was identify a private citizen whose political views he disagrees with and suggest repeatedly, on national television, and on the Attorney General’s official website, that she had broken the law, with no evidence to support those claims," Robel wrote. "If he can throw the entire weight of his office without consequence to attack Dr. Bernard, he can do so to target any private citizen with whom he disagrees. This is the opposite of the rule of law.
In December 2022, Marion County Judge Heather Welch indicated that Mr. Rokita made “clearly unlawful breaches” of state confidentiality laws with his public comments about investigating the doctor before filing the medical licensing complaint against her.
On 22 February 2023, Mr. Rokita verified that he was under investigation by the Indiana Disciplinary Commission. Typically, the Indiana Supreme Court Disciplinary Commission does not confirm or deny if a complaint has been filed unless it decides to file formal disciplinary charges. The Commission keeps these matters confidential while under investigation, and does not even indicate if an attorney is under investigation. This is the professional standard that many of us believe Mr. Rokita should have followed in his investigation.
This blog will issue updates on the Indiana Medical Licensing Board decision and the status of the disciplinary action against Indiana Attorney General Todd Rokita as more information becomes available.
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Excellent summary of a terrifying case. This rogue Attorney General needs to be impeached.