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Editor’s note: This article has been updated as of 1:30 p.m. on Nov. 10.
Attorneys for Indianapolis OB-GYN Dr. Caitlin Bernard and her medical partner have filed an emergency motion to halt Indiana Attorney General Todd Rokita from accessing medical records from her patients, marking the latest movement in a legal battle over abortion.
The motion for preliminary injunction, filed Wednesday afternoon, asks the Indiana Commercial Court in Marion County to grant relief from “improper investigations” initiated by Rokita’s office, including subpoenas served for patient records.
In a news release, the Indianapolis firm of DeLaney & DeLaney LLC — which is representing Bernard and her medical partner, Dr. Amy Caldwell — cited “the irreparable harm that could be done to their patients should their medical records be disclosed.”
The doctors are represented by Kathleen DeLaney of DeLaney & DeLaney LLC and pro bono counsel Arnold & Porter.
“It’s critical that the court acts to stop these subpoenas for our patient’s records,” Bernard and Caldwell said in a statement released by DeLaney & DeLaney. “These subpoenas, if enforced, would result in a gross violation of privacy against patients who deserve and expect their medical records to remain private.”
Attorneys for the doctors filed a lawsuit last week asking the Commercial Court to declare Rokita and Scott Barnhart, chief counsel and director of the Consumer Protection Division in the Office of the Indiana Attorney General, violated state statute, exceeded their authority and breached confidentiality provisions regarding consumer complaints.
The lawsuit stems from Bernard’s public statement made in July that she had performed an abortion on a 10-year-old rape victim from Ohio. She’s now seeking to block Rokita’s investigation into physicians who provide abortion care and claims that without court action, the AG could conduct similar investigations into other professionals.
Wednesday’s emergency motion is a follow-up to the lawsuit, attorneys for the doctors said.
“Today we are filing a Motion for Preliminary Injunction asking that the court grant relief because of the risk of imminent harm that these baseless investigations and subpoenas pose to our clients and their patients,” DeLaney said in a statement. “There is a serious risk that patient identities could be disclosed to the public, which could subject them to harassment based on their most sensitive medical information.
“Furthermore, should this investigation continue, it could create an environment where future patients will be unable to access legal and safe medical care without fear that complete strangers will read their medical records,” DeLaney continued. “We hope the court will act swiftly, both to protect our clients and their patients, but to protect any person seeking medical care. Patients must be able to share with their doctors all information necessary for treatment without fear that politicians will obtain their medical records for improper purposes.”
Likewise, the doctors said the court can “ensure that future patients won’t have to live in fear of their records being publicly scrutinized after seeking safe, legal and necessary medical care.”
In a statement, Rokita said, “Patient privacy is the foundation of medical ethics, and although the doctor’s newfound concern for her patients’ privacy is appreciated, albeit ironic, we will proceed to seek the truth no matter the attempts to push her narrative.”
In a memorandum supporting the injunction motion, the doctors allege several of the complaint forms received by Rokita’s office include “falsehoods or misrepresentations.”
For example, one complainant allegedly responded to the question, “How did you pay?” by checking “Cash.” But the memorandum alleges that complainant had no contact with Bernard, never engaged in any kind of transaction, and reflected a lack of personal knowledge of Bernard by indicating the doctor’s phone number was “555555555” and ZIP code was “00000.”
In another alleged incident, a complainant allegedly from Ohio referenced public statements, asserting they had “personally experienced hostility” and specifically mentioning Bernard’s “claim of a 10-year-old Ohio girl being forced to have an abortion in Bernard’s Indiana clinic.”
“As a citizen of Ohio I feel that this misinformation (aka LIE) harmed my State’s image AND is a malicious act intended to harm people such as myself that hold a pro-life position,” the complainant wrote, according to the memorandum.
“Again, the complaint offered no details that would give rise to a reasonable belief that the complainant had accurate information, much less first-hand knowledge, regarding Dr. Bernard,” the motion alleges. “Instead, the complaint attached what appears to be the results of an internet search.”
A third complainant allegedly asserted that “Indiana is a Mandatory Reporter State. Dr Caitlin Bernard stated she treated a 10-yr old girl from Ohio who was pregnant. Dr Bernard refuses to confirm this was reported to law enforcement, as required by law.”
Multiple sources have publicly confirmed that Bernard filed the proper reports following her treatment of the Ohio girl.
“None of the individuals who filed consumer complaints focused on care they personally received from Plaintiffs,” the doctors’ memorandum states. “Indeed, none of the complainants claimed to have engaged, or made any attempts to engage, in a transaction in Indiana, let alone a transaction with Dr. Bernard.”
“Here, Defendants have engaged in unlawful conduct both by failing to satisfy statutory requirements and by exceeding their statutory authority,” the memorandum concludes. “… Defendants have violated, and will continue to violate, Chapter 7 of Title 25 of the Indiana Code by initiating and continuing to pursue investigations based on facially invalid, patently meritless and publicly refuted ‘consumer’ complaints, conducting investigations that go far beyond any alleged violation, and violating statutory obligations of confidentiality. This conduct does not comport with Indiana law and provides more than a sufficient basis for the Court to find that granting an injunction here serves the public interest.”
The case is Caitlin Bernard, M.D., on her own behalf and on behalf of her patients; Amy Caldwell, M.D., on her own behalf and on behalf of her patients v. Todd Rokita, in his official capacity as Attorney General of the State of Indiana; Scott Barnhart, in his official capacity as Chief Counsel and Director of the Consumer Protection Division of the Office of the Attorney General of the State of Indiana, 49D01-2211-MI-038101.
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