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Indiana firmly established its near-total ban on abortion three years ago, but the legal battle rages on over reports that doctors must file on the few abortions now performed each year.
Even before Indiana tightened its abortion restrictions, the state required physicians who perform abortions to submit a report about each procedure.
These reports, called TPRs for short, include about 30 categories of information about a patient and their abortion procedure, including the patient’s medical history, where the abortion was performed, and how the abortion was performed.
The decreasing number of abortions now performed in the state have made some physicians concerned that the information contained on the TPRs could make the identity of the patients easily discernible, making their personal medical information public and invading their privacy.
Opposing groups, however, argue that the reports don’t contain enough information to be a threat to privacy.
“Those TPRs are supposed to not give rise to that risk. They don’t mention the name of the patient,” said Thomas Olp, executive vice president at the Thomas More Society. “And so our legal position, has been, wait a minute, how could it be a medical record if it’s not hooked up to a patient? You certainly couldn’t use it to treat a patient.”
Right now, two prominent lawsuits are pending in state and federal courts to settle the fight over what information from TPRs should be publicly available, who should have access to them or if it is even legal to require them at all if they make an individual’s medical history easily identifiable.
The case for TPR access
In Marion Superior Court, an Indianapolis physician who made headlines in 2022 for her clash with Indiana Attorney General Todd Rokita is arguing that TPRs should not be released to an anti-abortion nonprofit organization.
Dr. Caitlin Bernard, a physician with IU Health who performs lawful abortions in Indiana, was investigated by Rokita in 2022 for privacy and reporting violations after Bernard told The Indianapolis Star about a 10-year-old Ohio girl who traveled to Indiana for an abortion.
While Rokita was reprimanded for televised comments he made about Bernard, Bernard herself was reprimanded by the Indiana Medical Licensing Board for discussing the girl’s abortion publicly.
In June 2024, Bernard became an intervenor in a lawsuit involving the Indiana Department of Health and Voices For Life, a South Bend-based pro-life organization.
A month prior, the nonprofit filed a lawsuit against the health department after it denied the organization’s request for access to state TPRs.
The department and the state’s Public Access Counselor both agreed that the documents should be kept confidential under the public records act.
“While the form is created by a provider pursuant to a statutory reporting requirement, there is no question that the information contained therein is part of a patient medical record. Stated differently, the creation of the form is an immediate consequence of a medical service. Without the provider-patient relationship, the form would not exist,” former Public Access Counselor Luke Britt wrote in a December 2023 analysis, responding to the health department’s inquiry into whether TPRs should be released publicly.
While the lawsuit was dismissed in Marion Superior Court in October, Voices for Life appealed it, and in February, it reached a settlement agreement with the health department.
This agreement stated that the department would release the reports with redactions made to protect patients’ identities.
Bernard and another IU physician quickly sued over the release, requesting that a preliminary injunction be imposed. A Marion Superior Court judge granted the injunction last month.
Bernard and her co-plaintiff’s stance mimic the public access counselor’s, that information contained in these reports is not public record as defined in the public records act.
The doctors argue the release of the information brings harm to both patients and physicians and deteriorates trust between physicians and the patients they serve.
“Privacy is an essential component of healthcare,” said Tanya Pellegrini, a lawyer reprsenting Bernard and Rouse. “Patients and providers will both be at-risk of intimidation and harassment if personal medical information falls into the hands of anti-abortion vigilantes.”
Those representing the opposing side say that because the information contained in TPRs doesn’t clearly pinpoint a patient’s identity, the information in them shouldn’t be considered private under the public records act.
“The definition of medical record is something to diagnose [or] treat a patient and you can’t do that if you have no link to the patient and the only link would be through the abortion doctor,” said Olp, who is representing Voices For Life in the lawsuit. “Only the abortion doctor would know who that patient was, and the abortion doctor is not going to disclose that.”
Each side’s interpretation of the definition of “medical record” comes from different sections of the Indiana code.
Bernard and her co-plaintiff, Dr. Caroline Rouse, argue TPRs are medical records because they’re created by a provider, in accordance with Indiana Code § 5-14-3-4.
Olp and Rokita, in an April 2024 opinion addressing the health department’s nondisclosure of TPRs, say TPRs aren’t being used for diagnosis, treatment, and prognosis, but instead to assure compliance with state law, in accordance with Indiana Code § 16-34-2-5.
Attorneys for the state health department did not respond to The Lawyer’s requests for comment.
The federal lawsuit
Another Indianapolis doctor has filed a lawsuit in U.S. District Court against members of the state Medical Licensing Board over the enforcement of the TPR law, arguing that new federal health privacy requirements prohibit the disclosures required by the state.
Last June, an update was made to the Health Insurance Portability and Accountability Act, or HIPAA, that was in direct response to the U.S. Supreme Court’s overturning of Roe. v. Wade, which cleared the way for Indiana’s near-total abortion ban in 2022.
Health care providers and patients expressed concern that patients’ protected health information could be used to track the care they receive, and that, when the information is shared publicly, those patients and physicians could face retaliation for lawful abortions.
Previous HIPAA language granted exceptions to the release of protected patient health information, including if the disclosure was required by law.
“There really wasn’t a problem under HIPAA (initially) because the TPR statute, it’s a law, and if there’s an exception to the privacy rule for complying with a law, then there’s no HIPAA violation there,” said Neal Eggeson, a privacy law attorney in Indianapolis who is not involved in the federal lawsuit.
Under the updated final rule, however, protected health information cannot be collected for the purpose of investigating or imposing liability on patients and physicians who seek or facilitate abortions.
The compliance date for the final rule went into effect in December, at which point Dr. Christina Scifres, a physician with IU Health who performs lawful abortions in Indiana, filed a lawsuit against the state health department, arguing that it’s impossible for doctors to comply with both state TPR requirements and the updated HIPAA rules.
Scifres said that if she complies with state law requiring the submission of TPRs, she and other physicians risk violating HIPAA standards that prohibit using the information to impose liability.
Though Voices For Life is not a party to Scifres’ case, the nonprofit has expressed its desire to access state TPRs to assist the health department in enforcing state abortion law compliance.
In a March 11 brief opposing plaintiffs’ request for the preliminary injunction in Bernard’s case, Ben Horvath, the attorney representing Voices For Life, wrote, “Allowing public access to TPRs also furthers the purposes of APRA by providing private citizens, including Voices For Life, with information needed to assist in a regulatory goal of ensuring healthcare providers comply with Indiana laws regulating abortion… and also, whether the IDOH and the Attorney General, who have regulatory authority, are exercising it properly by enforcing the law.”
Scifres argues that because federal law preempts state law, Indiana’s TPR statute must yield to updated HIPAA standards.
Her attorneys declined to comment on the case. Attorneys for the health department did not respond to requests for comment.
Eggeson doesn’t believe either the state or federal cases will be resolved anytime soon. In fact, he suspects the resolution of Bernard’s case hinges on the outcome of the federal case.
“Regardless of what happens, regardless of what anyone thinks about TPR versus public access, all of it becomes moot, all of it becomes academic, if the federal court says federal preemption applies,” he said.
Both cases continue to unfold in court.•
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