Inbox: Silencing Dr. Bernard

Last year, Indiana Attorney General Todd Rokita smeared Dr. Caitlin Bernard on national television, falsely accusing her of failing to report the rape of a 10-year-old abortion patient as required by state law. He was wrong to do so, and the Indiana Medical Licensing Board was correct in rejecting that charge at its recent hearing. But the board was wrong to reprimand Dr. Bernard for speaking publicly about the existence of a raped child refugee from Ohio’s abortion ban. The information she provided did not violate patient privacy laws and was critical to understanding the impact of one of the biggest issues pending before the Indiana Legislature at the time. Her speech sits at the core of First Amendment protections.

When a reporter spoke to Dr. Bernard, Indiana was in the midst of a legislative discussion about a new ban on abortion. The effect of a recent ban next door in Ohio was and remains a matter of the deepest public concern. Dr. Bernard told the reporter three things: the patient’s age, that the patient was from Ohio and that she was banned there from getting the abortion she had received in Indiana. Her employer, Indiana University Health, determined she had not violated patient privacy by revealing these three facts. Peter Schwartz, chair of the Council of Ethical & Judicial Affairs of the American Medical Association, who testified on the doctor’s behalf at the hearing, agreed.

Indeed, Schwartz described the doctor as having an affirmative obligation to speak out. The news of a raped child being denied an abortion came less than a month after the U.S. Supreme Court had reversed Roe v. Wade, and the reaction was explosive. The Ohio attorney general and Republican members of Congress denied that such a child even existed. The Wall Street Journal wrote an editorial doubting her existence (and sickeningly, calling it a story “too good to be true.”). The president of the United States noted his shock at her situation. Prominent Indiana anti-abortion lawyer James Bopp Jr. opined that the 10-year-old should have continued the pregnancy. The Ohio Legislature ultimately passed a bill requiring schools to teach about sexual abuse as a result of the uproar. And the child’s existence and plight figured in the Indiana Legislature’s discussion of its pending abortion bill.

This reaction demonstrates that Dr. Bernard was speaking clearly and effectively on an issue central to one of the most important political debates of our day. The response to Dr. Bernard’s interview demonstrated the ill-thought-out parameters of Ohio’s law, surfaced the extreme views of influential Indiana abortion opponents like Mr. Bopp and forced the Indiana Legislature to reckon with the implications of its pending legislation. Nothing is more central to the concerns of the First Amendment than the ability of people with firsthand knowledge of events highly relevant to political decision-making to discuss them in the public square.

And nothing in patient privacy law prevented Dr. Bernard from providing the bare-bones account — a 10-year-old rape victim from Ohio who received an abortion — that she gave the reporter. The Health Insurance Portability and Accountability Act, or HIPAA, has a privacy rule that protects individually identifiable patient information. Such information “identifies the individual” or is such that “there is a reasonable basis to believe the information could be used to identify the individual.” The Indiana board members who fined Dr. Bernard apparently believed that knowing that a child had been raped and impregnated in Ohio would reasonably lead to identifying the actual child patient.

To reach this conclusion is to perpetuate the myth that cases like that of Dr. Bernard’s patient are vanishingly rare and that to speak of any of them would be tantamount to an individual identification. But a study of police reports for the Columbus, Ohio, area, where Dr. Bernard’s patient came from, for the first six months of 2022 showed hundreds of police reports of child sexual assault and rape, and a study of the entire year showed thousands of such reports. The Ohio Department of Health reported 521 abortions for children under the age of 18 in 2020. Indeed, Indiana’s own statistics showed 1,205 pregnancies in children under 18 in 2021, with 234 ending in terminations (and 67 of those terminations in children under 16). Child rape and pregnancy are sadly not the rare events the Indiana Medical Licensing Board, or Attorney General Rokita, apparently believe them to be.

Muzzling doctors who tell the truth about who abortion bans’ affects leads to bad policy and bad outcomes for patients. Dr. Bernard did not identify her patient. She identified a public problem, and the First Amendment allows — indeed, encourages — her to do so.•

–Lauren Robel
Val Nolan professor of law emerita, Indiana University Maurer School of Law