Judge allows AG’s investigation into abortion doc Bernard to continue despite ‘clear violations’

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Indiana Attorney General Todd Rokita can continue his investigation into Indianapolis abortion doctor Caitlin Bernard, including accessing her patients’ medical records, a judge has ruled.

However, in denying Bernard’s motion for a preliminary injunction, the judge did rule that Rokita “clearly violated” Indiana law and caused “irreparable harm” to the doctor by discussing with the media his investigation into Bernard and consumer complaints filed against her.

But now that Rokita has filed an administrative action against Bernard’s medical license with the Indiana Medical Licensing Board, “the Court no longer has jurisdiction to make any factual findings over these ultimate questions, even for the purposes of a preliminary order.”

“Since these arguments go to the validity of the consumer complaints, the Court finds any determination of such to be properly within the jurisdiction of the Medical Licensing Board at this time,” Marion Superior Judge Heather Welch wrote Friday.

In early November, attorneys for Bernard and her medical partner, Dr. Amy Caldwell, filed a lawsuit  requesting that the trial court declare Rokita and Scott Barnhart, chief counsel and director of the Consumer Protection Division in the Office of the Indiana Attorney General, exceeded their authority and breached confidentiality provisions regarding consumer complaints.

The emergency motion for a preliminary injunction was filed soon after, alleging the Attorney General’s Office was conducting “improper investigations,” including subpoenas served for patient records.

Rokita has been public about his investigation into Bernard since she publicly shared with The Indianapolis Star in July that she terminated the pregnancy of a 10-year-old Ohio girl in July.

Immediately after The Star broke the news of the abortion, Rokita went on a Fox News program and announced his office was investigating Bernard for possible privacy and reporting violations. Bernard has accused the attorney general and the Consumer Protection Division director of moving forward with the investigation into her based on “facially invalid” consumer complaints.

In denying the preliminary injunction motion, Welch wrote, “Ind. Code § 25-1-7-5 permits the Division to investigate consumer complaints and, as part of that investigation, to subpoena witnesses. Plaintiffs have taken issue with the scope of the subpoenas and the apparent lack of notice given to Dr. Bernard regarding subpoenas of their patients’ records, but there is nothing in the licensing investigations statute that places any apparent limits on the scope of discovery or requires that the subjects of complaints be alerted of any subpoenas the Division deems necessary to issue.

“There are, of course, limitations that have been determined through case law …. ,” Welch continued. “Limitations as determined in opinions … however, do not establish that the mere act of issuing an overly-broad subpoena constitutes such unlawful conduct as to show irreparable harm per se.”

Thus, Welch found the attorney general worked within his powers.

“The Court … finds the Division’s conduct falls within the permitted bounds of the licensing investigations statute in this case,” Welch wrote. “While some of the consumer complaints appeared more meritorious than others on their face, the statute permits the Director and Division to investigate them all the same before coming to any conclusion.

“While Dr. Bernard has raised concerns about the conduct of the investigations, it is beyond the scope of the Court’s irreparable harm per se analysis to determine whether the particular tactics employed by the Division in the investigations against Dr. Bernard should be permitted since, unlike the confidentiality issues … there are no express statutes specifically prohibiting the Director and Division from relying on weak consumer complaints taking months of time to complete their investigations before making a determination on merit.”

But addressing Rokita’s media statements regarding Bernard, Welch added, “The public statements made by the Attorney General prior to the referral of the matter to the Medical Licensing Board …  are clearly unlawful breaches of the licensing investigations statute’s requirement that employees of the Attorney General’s Office maintain confidentiality over pending investigations until they are so referred to prosecution.”

In a footnote, Welch noted, “Defendants filed a Motion for Change of Judge on November 10, 2022. The new judge will take this case at the conclusion of these emergency proceedings.”

After the order was issued, Kathleen DeLaney of DeLaney & DeLaney LLC in Indianapolis, who is representing Bernard and Caldwell, reiterated the position that Rokita violated his duties.

“Today Judge Welch ruled that Attorney General Todd Rokita violated his duty of confidentiality under Indiana law and confirmed that there was no basis for the Attorney General to investigate Dr. Bernard’s partner, Dr. Amy Caldwell,” DeLaney said in a news release. “Last week, my client and other witnesses gave critical and favorable testimony, after which Mr. Rokita suddenly moved the case to a new forum, taking it out of the hands of Judge Welch. We are confident in the record and testimony that we have already developed and look forward to presenting Dr. Bernard’s evidence to the Medical Licensing Board.”

Rokita’s office called the order a win.

“This is a win for patient privacy rights in the practice of medicine and for properly reporting child abuse,” Rokita said in a news release. “This case is not really about abortion, despite the best efforts of those with an agenda to make it appear that way.”

Rokita also blamed Bernard for the “media frenzy.”

“This has always been about two things: First, it is a doctor’s duty to keep patients’ information private, unless specifically authorized. Second, a healthcare provider must protect a child from being further abused by properly reporting the situation immediately to Indiana authorities as required by our laws,” Rokita said. “But for the doctor’s violation of her patient’s privacy by going to the news media, this story would have never been publicized. The doctor and her attorneys initiated this media frenzy from the beginning, and it continues to draw attention to this innocent little girl who is trying to cope with a horrific trauma.”

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