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An Indianapolis doctor is suing the Indiana Department of Health and members of the state Medical Licensing Board over the enforcement of a state law the requires physicians performing abortions to report certain information to the state despite new federal health privacy requirements that appear to prohibit such disclosures.
Dr. Christina Scifres filed the lawsuit in the U.S. District Court of Southern Indiana on Dec. 23, the same day physicians were required to begin complying with the federal Reproductive Health Care Privacy Rule, which amends federal regulations under the Health Insurance Portability and Accountability Act. or HIPAA.
The federal rule prohibits disclosure of individuals’ protected health information when it could be used to investigate, impose liability on, or identify anyone seeking, obtaining, providing, or facilitating reproductive health care.
Scifres’ lawsuit says the federal law is in direct conflict with Indiana Code Section 16-34-2-5, which requires state physicians who perform abortions to submit terminated pregnancy reports to the Indiana Department of Health.
These reports are used “to aid in the enforcement of Indiana’s laws governing the circumstances in which a physician can legally provide an abortion within the state,” according to the lawsuit.
Representatives for the state health department and the medical licensing board told the Indiana Lawyer that they do not comment on pending litigation.
The federal privacy rule was promulgated in April 2024, and Scifres says state and federal authorities have not been able to offer guidance as to how to resolve the conflict by the December 2024 compliance date.
The lawsuit states it would be impossible for Scifres and other physicians to comply with both laws concurrently. Further, when there is an incompatibility between state and federal law, federal law preempts state law.
Scifres says that if she were to submit an abortion report to the state health department after Dec. 23, she and her employer, Indiana University Health, would be subject to criminal and civil penalties in violation of HIPAA. But if she did not submit a report, she could lose her medical license in the state of Indiana.
Because Indiana’s law requiring abortion reports is designed to assure compliance with the state’s abortion laws, any reports physicians submit “would necessarily be used or disclosed for a prohibited purpose under the Reproductive Health Care Privacy Rule,” the lawsuit states.
The terminated pregnancy reports have been at the center of a separate political scuffle for months, since the state health department announced it would no longer release individual terminated pregnancy reports following the enactment of the state’s near-total abortion ban, which sharply curtailed reproductive health care access. It still releases aggregated reports.
The health department decided against releasing the reports in January after the state’s public access counselor issued an opinion that said the reports could be “reverse engineered to identify patients — especially in smaller communities.”
In April, Republican Attorney General Todd Rokita issued an advisory opinion that these reports should be considered public record. The anti-abortion group Voices for Life filed a lawsuit seeking to regain access to the reports but lost at the trial court level and has announced plans to appeal.
In her separate lawsuit, Scifres is seeking declaratory judgment and preliminary and permanent injunctive relief.
The case is Scifres v. Commissioner, Indiana Department of Health et al, 1:24-cv-2262.
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