Abortion doctor files lawsuit against Indiana AG Rokita to stop ‘sham investigations’

IL file photo

Caitlin Bernard, the OB-GYN targeted by Indiana Attorney General Todd Rokita after she publicly stated in July that she had performed an abortion on a 10-year-old rape victim from Ohio, has filed a lawsuit seeking to block the attorney general’s “baseless investigation” into physicians who provide abortion care.

The complaint, filed Thursday, is asking the Indiana Commercial Court in the Marion Superior Court to declare Rokita and Scott Barnhart, chief counsel and director of the Indiana Office of the Attorney General’s Consumer Protection Division, have violated state statute, exceeded their authority and breached confidentiality provisions regarding consumer complaints.

Also, asserting the plaintiffs, their patients and other licensed professionals will suffer irreparable harm unless Rokita and Barnhart are stopped, the complaint asks the court to permanently enjoin the defendants from future violations.

“Unless this Court intervenes, Defendants will continue to unlawfully harass physicians and patients who are engaged in completely legal conduct and even though neither the physicians nor patients have any complaints about their relationship,” the complaint states.

The lawsuit also contends that without court action, the attorney general could conduct similar investigations into other professionals.

“Defendants’ current targets are physicians who provide medical care, including abortion services permitted under Indiana law,” the complaint states. “But there is no reason to believe Defendants will stop there. All licensed professionals face the exact same dangers as Plaintiffs.”

Bernard is joined in the lawsuit by her medical partner, Dr. Amy Caldwell, and their patients. The plaintiffs are represented by Kathleen DeLaney of DeLaney & DeLaney LLC and pro bono counsel Arnold & Porter LLP.

In response to the lawsuit, Rokita’s office defended the handling of the complaints against Bernard.

“By statutory obligation, we investigate thousands of potential licensing, privacy, and other violations a year,” Kelly Stevenson, spokesperson for the attorney general, said in a statement. “A majority of the complaints we receive are, in fact, from nonpatients. Any investigations that arise as a result of potential violations are handled in a uniform manner and narrowly focused. We will discuss this particular matter further through the judicial filings we make.”

The Bernard matter has ignited a firestorm.

DeLaney sent a “cease and desist” letter to Rokita in July.

In addition, former Indiana University Maurer School of Law Dean Lauren Robel called for a disciplinary investigation against Rokita while 29 Indiana law school professors criticized his conduct. Plus, former Congresswoman Susan Brooks and former 7th Circuit Court of Appeals Judge John Tinder publicly denounced Rokita’s actions.

The lawsuit accuses the attorney general and the Consumer Protection Division director of moving forward with an investigation into Bernard based on “facially invalid” consumer complaints.

After the media reported on the 10-year-old’s abortion, seven consumer complaints against Bernard were filed over four days in July, according to the lawsuit.

According to the suit, the complaints were without merit because they were submitted by individuals who did not engage or have any personal interaction with Bernard or Caldwell. Instead, the complainants cited to news stories and made claims without offering explanations or details supporting their allegations. Also, the complaints did not include a valid affirmation.

The lawsuit states that rather than determining whether any of the complaints had merit, and in spite of Bernard complying with the law by filing a Termination of Pregnancy Report, the attorney general and director notified Bernard that an investigation had been opened into her conduct.

Next, the attorney general and the director issued “sweepingly broad document subpoenas” for the “entire medical file” of the rape victim, according to the lawsuit.

“The Attorney General and Director ignored their responsibilities to find (the consumer complaints) had merit before opening investigations into them,” the lawsuit states. “Instead, the Attorney General and Director opened multiple investigations into Bernard despite the obvious deficiencies in all the consumer complaints and the fact that publicly available information indicated that the complaints were frivolous.”

Also, the lawsuit asserts, the attorney general and director opened a “similarly meritless and overbroad investigation into Dr. Caldwell.” The lawsuit states the defendants converted a complaint that was filed against “an institution” into a complaint against Caldwell.

The attorney general, through the director, served Caldwell and a “local health care clinic” with similar document subpoenas seeking all medical records relating to Bernard’s patient identified in the TPR.

Moreover, the lawsuit asserts, the attorney general and director “brazenly disregarded” state law that requires consumer complaints be kept confidential until the licensure board is notified of the attorney general’s intent to prosecute. Rokita spread the “groundless allegations” by giving multiple interviews to the media, making public a letter he sent to Indiana Gov. Eric Holcomb and issuing an “inflammatory press release.”

“The Attorney General’s and Director’s improper conduct dissuades patients who need emergency abortions from seeking care,” the lawsuit asserts. “It also threatens patients seeking legal abortions that their most personal and private medical records and health care decisions could be exposed as part of a meritless investigation.

“The Attorney General and the Director will continue to initiate sham investigations of Plaintiffs unless enjoined by the Court,” the lawsuit concludes.

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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