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Legal Experts Say Indiana AG’s Vow to Investigate Doctor Who Provided an Abortion to a 10-Year-Old Girl Smacks of a ‘Political Witch Hunt’

Republican Attorney General Todd Rokita appears on Fox News on July 13, 2022, announcing an investigation into Dr. Caitlin Bernard.

Indiana Attorney General Todd Rokita (R) appears on Fox News Channel on July 13, 2022. (Image via YouTube screengrab.)

After days of questioning the veracity of a since-confirmed story of a 10-year-old rape victim who crossed state lines to obtain a medical abortion, some conservative pundits and politicians turned their outrage to a new target: Dr. Caitlin Bernard, the Indiana obstetrician who treated her.

In a live interview on Fox News, Indiana Attorney General Todd Rokita (R) pledged to investigate Bernard. Abortion is legal in Indiana, but the attorney general claimed that Bernard may have run afoul of reporting laws. He later invoked privacy laws in a press release.

Legal experts who scrutinized the relevant statutes and the conduct at issue tell Law&Crime that they see no crime — but they do see evidence of a “political witch hunt.” They include a University of Indiana professor and the CEO of the American College of Obstetricians and Gynecologists.

“It’s just odd that [Rokita] would be jumping the gun,” Jody Madeira, a professor at Indiana University’s Maurer School of Law, told Law&Crime on Thursday. “He’s appeared on national television saying ‘I’m going to get her,’ but she’s a known abortion provider.”

Fox News flashed an image of Bernard onto the screen during the broadcast — a decision denounced by some commentators as putting the doctor in danger.

“This feels like more of a political witch hunt than a failure to provide a report,” Madeira added.

In a separate interview, a top county prosecutor in a Hoosier State told Law&Crime he, and not the AG, would have jurisdiction over a hypothetical case and provided a breakdown of the relevant law.

WXIN, a Fox affiliate in Indiana owned by Nexstar, reported on Thursday that Bernard had indeed filed the necessary paperwork on time.  The Indianapolis Star on Thursday evening reported similarly and included a statement from the doctor’s attorney.

“My client, Dr. Caitlin Bernard, took every appropriate and proper action in accordance with the law and both her medical and ethical training as a physician,” attorney Kathleen Delaney wrote in an email to the newspaper. “She followed all relevant policies, procedures, and regulations in this case, just as she does every day to provide the best possible care for her patients. She has not violated any law, including patient privacy laws, and she has not been disciplined by her employer. We are considering legal action against those who have smeared my client, including Indiana Attorney General Todd Rokita, and know that the facts will all come out in due time.”

“This Is a Horrible, Horrible Scene”

Rokita, a former GOP Congress member with a voting recording 100 percent in line with the anti-abortion National Right to Life Committee, chose to announce his investigation to Fox host Jesse Watters on Wednesday. He offered several justifications, which he appeared to attribute to an elaborate conspiracy involving “Marxists,” “socialists” and unnamed people in the White House. Rokita also latched onto the fact that the suspected rapist is an undocumented immigrant, even though that group statistically commits crimes at a lower rate than native-born citizens and legal immigrants across a range of felony offenses:

We have this abortion activist acting as a doctor with a history of failing to report. So we’re gathering the information, we’re gathering the evidence as we speak and we’re going to fight this to the end, including looking at her licensure, if she failed to report, and in Indiana it’s a crime to not report, to intentionally not report.

There’s a strong public interest in understanding if someone under the age of 16 or under the age of 18 or really any woman is having an abortion in our state. If a child’s being sexually abused, of course parents need to know, authorities need to know, public policy experts need to know, we all need to know as citizens in a free republic so we can stop this. This is a horrible, horrible scene caused by Marxists and socialists and those in the White House who want lawlessness at the border and this girl was politicized — politicized — for the gain of killing more babies. That was the goal, and this abortion activist is out there front and center.

Rokita did not elaborate on what he called Bernard’s “history of failing to report.”

On Thursday, Rokita confirmed in a press release that the investigation into Bernard was underway, stating that Bernard had the obligation to report child abuse under Indiana. (Again, WXIN reported that Bernard had submitted the proper paperwork on time, despite the AG’s claim.)

“The failure to do so constitutes a crime in Indiana, and her behavior could also affect her licensure,” his press release said. “Additionally, if a HIPAA violation did occur, that may affect next steps as well. I will not relent in the pursuit of the truth.”

After Law&Crime pressed him on the statutory basis of his investigation, Rokita’s office pointed to the state’s abortion reporting statute. Indiana Code § 16-34-2-5(b) mandates that an abortion provider report the procedure to the state within 30 days. That time is shortened to three days where a child under age 16 is concerned; in that case, the provider must report to both the state health department and the department of child services within three days after the abortion is performed.

Failure to make such reports is a Class B misdemeanor in the state, punishable by up to 180 days in jail.

Rokita also sent a letter to Indiana Gov. Eric Holcomb (R) requesting that he “direct the state agencies under your purview” to produce reports related to Rokita’s investigation. Holcomb’s office did not immediately respond to Law&Crime’s request for comment.

“The Purpose of the Statutes is to Protect Children”

Indiana’s child abuse reporting requirement is set forth in Indiana Code § 31-33-5, which governs the duty to report child abuse or neglect. The statute creates an affirmative duty for any adult in Indiana “who has reason to believe that a child is a victim of child abuse or neglect” to report such abuse either to law enforcement or child services.

One section of the law specifically addresses what happens if the abuse has already been reported.

“This chapter does not relieve an individual of the obligation to report on the individual’s own behalf, unless a report has already been made to the best of the individual’s belief,” the code says.

That caveat is particularly relevant here because it’s unclear whether Bernard knew whether the child’s assault had been reported where it allegedly took place — in Ohio.

According to the probable cause warrant for the girl’s alleged rapist Gerson Fuentes, a police report about the rape was generated on June 22. According to The Columbus Dispatch, that’s the same day that the police were alerted to the situation by Franklin County Children Services, following a report from the girl’s mother.

The Dispatch, citing testimony from Det. Jeffrey Huhn, who investigated the alleged rapist, reported that the alleged assault took place on May 12. The girl received an abortion from a clinic in Indianapolis on June 30. It’s unclear whether Bernard knew whether the rape of the girl had been reported in Ohio, where the alleged assault occurred and where the girl originally sought treatment.

But it is clear that a report was generated in Ohio — a fact that Marion County Prosecutor Ryan Mears (D) says should not be overlooked.

“Indiana law requires that either a law enforcement agency or the department of child services needs to be notified,” Mears said. “In this particular case we know that law enforcement was notified because there’s currently an active prosecution of the person” believed to have committed the assault.

Mears, the top prosecutor for county that includes the state capitol of Indianapolis, added that the statute is silent on that particular aspect of the notification requirement.

“The statute does not particularly state that Indiana law enforcement has to be notified,” Mears said. “I think one thing that’s important to note when we’re talking about these cases is that the purpose of the statutes is to protect children because they are not often in a position to protect themselves. In this case, it makes sense that both law enforcement in Ohio and the department of child services in Ohio would be notified because they are in the best position to offer care where the child will need it most, because that’s where the child resides.”

Mears said that his office had not received a criminal referral in this case, and pointed out that his office — not the Attorney General’s staff — has jurisdiction.

Despite comprehensively laying out the relevant law, Mears declined to comment specifically on a hypothetical case against Bernard to Law&Crime, noting that the matter might be litigated. His record suggests, however, that he would be unlikely to take up any possible referral. He was one of nearly 70 local prosecutors from across the United States to sign a statement vowing not to prosecute cases criminalizing abortion.

“Indiana law makes it clear that the Marion County prosecutor has the authority to prosecute crimes in Marion County as it relates to any crimes that occur in Marion County,” Mears said.

Mears, who has previously said that he will not file criminal charges against doctors providing abortions or patients who seek them, told Law&Crime that the focus on Bernard could set a dangerous precedent — and overlooks the true victim in the case.

“It’s unfortunate that a doctor who provides legal medical treatment to a victim who needs help is now subject to this level of intimidation,” Mears said, adding that it “erodes trust and the public’s confidence in institutions.”

“I hope people don’t lose sight of the fact that the person we are ultimately talking about is a 10-year-old who is a victim of a horrific crime,” Mears added. “No one is asking me about that.”

“Doctors Always Give the Age of a Patient”

In addition to Rokita’s alleged investigation, Fox News reported that Bernard’s employer, Indiana University Health, has filed a HIPAA complaint for sharing a very brief version the girl’s story with the Indianapolis Star.

HIPAA, or the Health Insurance Portability and Accountability Act, is the 1996 law that provides guidelines and standards in order to protect sensitive patient health information.

When asked to confirm whether a HIPAA violation had been filed, a spokesperson for Indiana University, where Bernard practices medicine and also serves as a professor, told Law&Crime that they did not have any information to share.

Legal experts in Indiana aren’t certain that any violation occurred — at least, not from Bernard.

“HIPAA applies to protected health information, which includes and individual’s identifiable information that concerns a patient’s health care, such as their name and identification,” Jody Madeira, a professor at Indiana University’s Maurer School of Law, told Law&Crime on Thursday.

Madeira said that the “quintessential example” of a HIPAA violation is one where a doctor faxes a positive medical diagnosis, such as for HIV, to a patient’s employer — and even then, it’s not entirely clear that a violation occurred, Madeira said.

When it comes to Bernard’s case, the information is even less specific to the patient. According to the Star report, Bernard did no more than identify the girl’s age.

The Star reported the situation as follows:

On Monday three days after the Supreme Court issued its groundbreaking decision to overturn Roe v. Wade, Dr. Caitlin Bernard, an Indianapolis obstetrician-gynecologist, took a call from a colleague, a child abuse doctor in Ohio.

Hours after the Supreme Court action, the Buckeye state had outlawed any abortion after six weeks. Now this doctor had a 10-year-old patient in the office who was six weeks and three days pregnant.

Could Bernard help?

Indiana lawmakers are poised to further restrict or ban abortion in mere weeks. The Indiana General Assembly will convene in a special session July 25 when it will discuss restrictions to abortion policy along with inflation relief.

But for now, the procedure still is legal here. And so the girl soon was on her way to Indiana to Bernard’s care.

As Madeira noted, Bernard did not disclose the child’s name, race, or home county. Nor did she disclose the name of the “child abuse doctor in Ohio” who called her in the first place. All that was revealed was the child’s age, which Madeira said is not enough, by itself, to trigger a HIPAA violation because that alone won’t lead to the patient being identified.

“[P]rotected health information is more specific,” Madeira said.

Madeira said that without additional information — for example, a patient’s address, date of birth, date of admission, medical records, social security number, driver’s license, or other unique identifying characteristics — it would be nearly impossible to identify a patient by their age alone.

“If you look at case studies, doctors always give the age of the patient,” Madeira noted.

In other words, the sharing of an anonymized vignette about a patient’s medical treatments generally does not offend HIPAA.

“I’m Not Letting It Go”

Despite what experts describe as the shaky legal ground of the AG’s investigation, Rokita told Watters that he has Bernard in his sights.

“I’m not letting it go,” Rokita said at the end of his Wednesday interview with Watters, after the host asked to be kept apprised as to whether Bernard would “face any sort of scrutiny.”

The pursuit of Bernard, doctors say, may put her life in danger.

“This is inexcusable,” Maureen G. Phipps, the CEO of the American College of Obstetricians and Gynecologists, told Law&Crime in an email. “By publicizing the name of any obstetrician-gynecologist who provides compassionate, life-saving care to people in need of it, news outlets are cruelly exposing them to very real danger.”

Phipps noted that doctors and clinicians who provide abortion care are “regularly subject to threats, intimidation, and even violence,” and criticized the decision to publicize Bernard’s identity.

“If such behavior continues, it will cost lives – not just of patients but of the clinicians who are dedicated to them,” Phipps wrote. “In a specialty where violent attacks on our colleagues is not new, we are highly aware of how wrong this behavior is and we wholly condemn it.”

Madeira called Bernard a “beloved and necessary member of the Indiana medical community, a trusted medical provider,” and said that it is highly unlikely that any investigation into her treatment of the young girl will pan out.

“They are not going to undermine this physician’s career,” Madeira predicted. “They’re not going to take her license away.”

[Image via YouTube screengrab.]

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