November 21, 2022

Arguments center on privacy laws, reporting in case to block AG from patient records over abortion

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Bernard's attorney, Kathleen DeLaney, speaks to reporters outside of the courthouse. - Violet Comber-Wilen/IPB News

Bernard's attorney, Kathleen DeLaney, speaks to reporters outside of the courthouse.

Violet Comber-Wilen/IPB News

Arguments continued Monday afternoon in Dr. Caitlin Bernard’s lawsuit to halt Attorney General Todd Rokita’s subpoenas for patient information and medical records from the doctor.

Rokita’s office said they need access to Bernard’s patient records to investigate consumer complaints. Bernard’s lawsuit was an attempt to stop this.

Rokita began investigations into Bernard after an abortion she provided for a 10-year-old rape victim from Ohio earlier this year became the center of a national debate on abortion access.

READ MORE: Judge hears arguments in Dr. Bernard's motion to block AG Rokita from accessing patient records

The argument on Monday centered around whether Bernard properly reported the abortion she provided to the appropriate entities and if she followed privacy laws in the process.

Reporting the abortion 

Rokita’s legal team argued Bernard did not follow proper protocol in reporting her abortion to the correct entities.

They brought up a statue, which says mandatory reporters must report an immediate oral or written report of child abuse to the department of child services and the local law enforcement entity.

During Bernard’s testimony, she said she reported the rape case to both DCS and law enforcement in Ohio. Rokita’s defense asserted Bernard should’ve reported to local law enforcement in Indiana, where the child received medical treatment.

Katie Melnik is the supervisor of the special victims unit at the Marion County Prosecutor’s Office. She said there would be no need to report this crime to Indiana law enforcement, as the crime happened outside of Indiana.

“We would not have jurisdiction to prosecute something that happened in Ohio,” Melnik said.

Bernard’s attorney, Kathleen DeLaney, said the rape is under the jurisdiction of Ohio authorities, where the crime was committed.

“In a situation where the patient is in Ohio resident, and where the crime occurred in Ohio, and where the patient is going back to Ohio after two days of medical treatment,” she said. “The law enforcement authorities in Ohio and DCS in Ohio are the ones to whom the report should be made.”

Mary Hutchinson, deputy attorney general of licensing enforcement in the office of the attorney general, also testified during the hearing. She said her interpretation of the statue would mean also reporting to local law enforcement in Indianapolis.


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Hutchinson said the attorney general’s office was also still looking into Bernard’s reporting to the Indiana Department of Child Services. When provided a document showing Bernard had reported to a social worker about the case, Hutchinson said if this the social worker is the “accurate person” to report to via hospital policy, Bernard accurately reported this.

The attorney general’s team said the rape victim returned home to live with her abuser before law enforcement arrested him. They said Bernard should’ve reported to local Indianapolis authorities, and argued they may have been able to intervene in this case.

Privacy laws

Rokita’s team also argued Bernard violated patient privacy laws when an Indianapolis Star reporter obtained information about when her patient would arrive in Indianapolis to receive an abortion and how old the patient was.

Bernard’s legal team said she had not intentionally pushed the anecdote. They said the reporter overheard Bernard speaking about the 10-year-old victim.

“I don’t recall everything I said but I did not reveal protected health information or patient-identifying information,” she said.

Rokita’s team argued Bernard was seeking to benefit from the publicity of this experience – referencing articles in Vanity Fair and an op-ed in the Washington Post.

DeLaney said Bernard received threats and harassment that put her personal safety and career in danger.

No decisions were made in the hearing today, and are not expected until the coming weeks.

Contact reporter Violet at or follow her on Twitter at @ComberWilen.

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