Trial court schedules hearing in abortion doc’s lawsuit against AG Rokita

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Even though a change of judge motion had been granted, the Marion County Commercial Court judge originally assigned to the case has scheduled a three-hour hearing for Friday on Dr. Caitlin Bernard’s motion to stop the Indiana attorney general from accessing her patients’ medical records.

Judge Heather Welch granted the attorney general’s motion for a change of judge Tuesday. In a separate order issued the same day, she found the motion for preliminary injunction filed by Bernard and her co-plaintiffs presented an emergency that gives her court jurisdiction.

“Lastly, (the Indiana Trial Rule 76) change of judge rule was not intended to create a situation wherein litigants in civil matters have no judge with jurisdiction to address emergency matters,” Welch wrote. “Otherwise, the Indiana Courts would not be able to provide access to justice by setting emergency motions for hearing to evaluate them on their merits.”

Welch then scheduled a hearing to determine whether good cause exists to grant the plaintiffs’ preliminary injunction motion.

Bernard, an Indianapolis OB-GYN, has been targeted by Indiana Attorney General Todd Rokita since she publicly acknowledged she performed an abortion on a 10-year-old rape victim from Ohio.

She and her medical partner. Dr. Amy Caldwell, filed a lawsuit Nov. 3 in the Marion County Commercial Court against Rokita and Scott Barnhart, director of the Consumer Protection Division in the Office of the Indiana Attorney General. In Bernard, et al. v. Rokita, et al., 49D01-2211-MI-038101, the plaintiffs allege the state’s top lawyer is using “facially invalid” consumer complaints to conduct “multiple, duplicative, and overbroad investigations” to “unlawfully harass” abortion providers.

Bernard and Caldwell are represented by Kathleen DeLaney and Matthew Gutwein of DeLaney & DeLaney LLC in Indianapolis. Rokita and Barnhart, who are being sued in their official capacities, are represented by the attorney general’s office.

On Nov. 9, the plaintiffs filed a motion for preliminary injunction asking the court to halt the attorney general’s “improper investigations,” including subpoenas served for patient records.

“Defendants’ baseless investigations into frivolous consumer complaints that Defendants knew or should have known lack merit have proven costly for Plaintiffs, distracting them from serving their patients, causing them to fear whether they will be able to continue their medical practices, and to fear for their personal safety and that of their families,” the plaintiffs asserted in the memorandum supporting their preliminary injunction motion.

Rokita and Barnhart responded Nov. 10 by filing a notice of refusal to consent to commercial court docket and the change of judge motion.

After hearing oral arguments Nov. 14 on whether the plaintiffs’ motion for preliminary injunction is an emergency matter under Indiana Trial Rule 79(O), the trial court found that an emergency exists and that it has the jurisdiction to address the emergency under Indiana law.

The defendants had argued the trial court was prohibited from finding the motion to be an emergency matter because a similar lawsuit has been filed by IU Health against the Office of the Indiana Attorney General, and Bernard is an intervening party. That case is Indiana University Health, Inc. v. Indiana Attorney General, 49D12-2209-MI-032634.

However, the plaintiffs asserted that without the emergency injunction, the “defendants will unlawfully harass physicians and patients who are engaged in legal conduct … .”

Welch was not persuaded by the defendants’ arguments.

“While there is not motion pending with this Court to dismiss the Plaintiffs complaint under Ind. T.R. 12(B)(8), this Court finds that an initial review of this matter and the lawsuit filed by IU Health (shows) that they are not substantially similar nor do they seek the same or substantially the same remedies,” the judge wrote. “… Certainly, if a Motion to Dismiss is filed under Ind. T.R. 12(B)(8), the new judge can address the written arguments of counsel.”

The trial court did not indicate how soon after Friday’s hearing it would issue a ruling.

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