Judge hears arguments in Dr. Bernard’s motion to block AG Rokita from accessing patient records

Arguments were heard Friday morning on Dr. Caitlin Bernard’s preliminary injunction to halt Attorney General Todd Rokita’s subpoenas for patient information and medical records from the doctor.

Bernard’s lawyer called the attorney general’s investigation stemming from consumer complaints an “unchecked overstep” of the office.

Rokita launched an investigation into Bernard after an abortion she provided for a 10-year-old rape victim from Ohio earlier this year became the center of a national debate on abortion access.

Following the hearing Friday, Bernard’s lawyer, Kathleen DeLaney, said the attorney general’s attempts to obtain these medical records are based on false claims.

“The state’s most senior law enforcement official has used his bully pulpit to tarnish Dr. Bernard and her reputation by revealing his investigation into consumer complaints that he should have known were frivolous and wrong,” she said.

DeLaney went further and said these complaints had nothing to do with Bernard or her care.

“The consumer complaints were 100 percent filed by people who had never met Dr. Bernard, had never gotten medical care from Dr. Bernard and were not involved in the care of this patient in any way shape, or form,” DeLaney said.

DeLaney also mentioned a 49-page brief Rokita filed before this hearing. In this brief, Rokita seemingly contradicted earlier claims that Bernard incorrectly reported her abortion on the 10-year-old victim.

“For the first time he admits in a footnote, footnote no. 1, quote, ‘Dr. Brnard is not being investigated for failing to comply with the TPR reporting law,’ close quote,” she said.

When asked what the defense was still investigating after this filing, DeLaney said she “does not know” and that her client has “done everything by the book.”

In a brief filed earlier in November, Bernard’s legal team said Rokita is greatly overstepping his power as attorney general.

“The attorney general has wholly ignored the General Assembly’s fine-tuned structure for handling consumer complaints regarding licensed professionals and has engaged in precisely the type of overbearing, harassing conduct that the General Assembly sought to prohibit,” she said.

In an email, the attorney general office’s spokesperson Kelly Stevenson said the office of the attorney general “always follows the law” and “purses the truth.”

What’s this lawsuit about?

A story from the Indianapolis Star highlighted 10-year-old rape victim from Ohio who had to cross state lines to receive abortion care. Bernard was contacted by a colleague in Ohio to ask if she could provide that care. The article brought about widespread attention into this case, particularly among conservatives.

Following Bernard’s public acknowledgement of the abortion she provided for the 10-year-old, Rokita threatened investigations into its legality.

Legal documents proved Bernard had appropriately reported the abortion for the 10-year-old rape victim.

Bernard’s attorney filed a tort claim notice, which would be required by state law before filing a defamation suit against Rokita. The attorney also sent a cease-and-desist letter to Rokita, calling his statements about Bernard “false and misleading.”

READ MORE: Abortion care provider sues Attorney General Todd Rokita over ‘improper’ investigations

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In the following months, Bernard and her medical partner, Dr. Amy Caldwell, filed a lawsuit against Rokita and Scott Barnhart, director of Consumer Protection Division in the Office of the Indiana Attorney General, over these investigations stemming from consumer complaints.

Rokita said there are consumer complaints against Bernard. Bernard’s attorneys said in court filings the complaints were not filed by anyone who actually dealt with Bernard, rather, they were filed by people who read stories about the case.

The lawsuit 

Rokita’s office is seeking to access medical records and patient information on Caldwell and Bernard’s patients as part of its investigation into consumer complaints.

On Nov. 9, Bernard’s attorney filed a preliminary injunction against Barnhart and Rokita, alleging the plaintiffs are being caused “irreparable harm for which there is no adequate remedy at law.” The document also said the consumer complaints Rokita is investigating are “invalid” and calls for a stop to action that would “violate stationary confidentiality requirements.”

The plaintiffs said these investigations have “distracted them” from providing care to their current patients and have put them in fear of practicing medicine and fear of their own personal safety.

In an email statement, Bernard said she had an ethical responsibility to protect her patients’ records.

“Make no mistake, the intent of this so-called investigation is to silence physicians who provide abortion care and make people seeking abortion care afraid to do so,” she said. “But the implications of this overreach go beyond abortion care. If the Attorney General is allowed access to any patients’ medical records, what’s to say he will stop with my patients?”

Judge Heather Welch found the motion for preliminary injunction presented an emergency which allowed her court to have jurisdiction.

There was no decision made during the emergency hearing Friday, and the trial will continue on Monday.

Contact reporter Violet at [email protected] or follow her on Twitter at @ComberWilen.