Update on the State of Indiana's attack on Dr. Caitlin Bernard
24 July 2023
This post updates the numerous issues associated with the State of Indiana’s political and legal attacks against Dr. Caitlin Bernard.
Physicians in anti-abortion rights (i.e. most red states) should assume they will be similarly attacked if they publicly deviate from their State’s mission to put women and girls in their place by restricting abortion rights and contraception use, enacting fetal personhood laws and declaring war against physicians who disagree.
Dr. Bernard’s “sin” was to answer questions from an Indianapolis Star reporter about an abortion she subsequently performed in Indiana on a 10 year old Ohio girl because it was now illegal in Ohio. She did not disclose any confidential information and the article contained no identifying information about the patient.
The Star story caught fire. Even President Biden decried the injustice. Conservatives went wild, accusing Bernard of making the story up. “Another lie. Anyone surprised?” brayed Ohio Republican U.S. Rep. Jim Jordan in a tweet he later deleted.
Medical Licensing Board Complaint against Dr. Caitlin Bernard
Spurred by Indiana Attorney General Todd Rokita, the Indiana Medical Licensing Board investigated, and subsequently fined Dr. Bernard $3,000 and issued a reprimand because they claimed she violated privacy laws by talking to a reporter, even without disclosing any confidential information. 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.
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”. Paige Joyner, a privacy compliance officer and past auditor for the Office for Civil Rights, also disagreed with the decision: “The information she shared was age, gender and state," Joyner said. "That’s not protected health information."
The board has 90 days to finalize its decision, after which both sides have 30 days to appeal in Marion Superior Court. To date, I am aware of no additional information.
Pending charges against Indiana’s Attorney General Todd Rokita for misconduct in this case
As noted here, in July 2022, the Dean of Indiana University’s law school filed a grievance against Mr. Rokita accusing him of "recklessly" making claims that weren't backed by fact.
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.
Although on 22 February 2023, Mr. Rokita verified that he was under investigation by the Indiana Disciplinary Commission, there has been no further update. These legal investigations typically move very slowly, are confidential under the end and take years to conclude.
Dr. Caitlin’s articles
In July 2023, Dr. Bernard wrote an essay for USA Today, “Abortion bans force doctors like me to watch women suffer. I won't be silent.” She previously wrote about her experience for the Washington Post and a colleague wrote a similar essay about the chilling effect that the Dobbs decision has had on medicine for the New York Times.
Status of Abortions in Ohio
Abortion is currently legal in Ohio pending further court decisions. In April 2019, Ohio passed a law banning abortion which was enjoined (i.e. halted) due to the existing Roe vs. Wade decision. On 24 June 2022, after the Dobbs decision overturned Roe vs. Wade, the injunction against the Ohio law was lifted, so abortion became illegal, which is why the 10 year old Ohio girl could not get an abortion in her state. In September and October 2022, the injunction against this law was enacted again, so abortion became legal. Further court action is pending.
The Ohio Right to Make Reproductive Decisions Including Abortion Initiative has collected over 700,000 petition signatures to establish a state constitutional right to "make and carry out one’s own reproductive decisions," including decisions about abortion, contraception, fertility treatment, miscarriage care, and continuing pregnancy, to appear on the 7 November 2023 ballot. To thwart this measure, which appears to be very popular, the Ohio legislature and governor have put Ohio Issue 1 on the ballot for 8 August 2023 to require the abortion constitutional amendment to pass with 60% of the vote to take effect.
Status of Abortions in Indiana
On June 30, the Indiana Supreme Court ruled the state's near-total abortion ban can take effect. Abortion is currently legal in Indiana but is scheduled to become illegal on 1 August 2023.
Criminal charges against rapist of 10 year old girl.
The 28 year old man accused of impregnating the then 9 year old Ohio girl was sentenced to life in prison after pleading guilty to rape. He was the boyfriend of the girl’s mother.
Action against the Bernard attackers
Many people and institutions attacked Dr. Bernard and the Indy Star story as untrue based on their apparent indifference to the truth.
The attackers included:
Jesse Watters, Fox News, who also took credit for the arrest of the rapist.
Ohio’s attorney general, Dave Yost, who fanned doubts about the case by stating that there was “not a damn scintilla of evidence” to support the story and “Shame on the Indianapolis paper that ran this thing on a single source who has an obvious ax to grind.”
The Wall Street Journal published an editorial, “An Abortion Story Too Good to Confirm”.
Ohio Republican U.S. Rep. Jim Jordan, in a tweet he later deleted, stated “Another lie. Anyone surprised?”
Fox and the Wall Street Journal later provided updated facts but did not apologize for their false reporting.
Although I am not aware of any action taken against these attackers, I plan to do what I can, within the law, to stay away from these evil individuals and institutions, to lessen their influence in society and to urge others to do likewise.
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Well written and researched.