Anti-abortion group sues Indiana health department for access to abortion records
(INDIANA CAPITAL CHRONICLE) — A lawsuit filed this week by anti-abortion group “Voices for Life” seeks to regain access to Indiana abortion records that are no longer being released by the state health department.
The South Bend-based group is suing the Indiana Department of Health (IDOH) after it stopped releasing individual Terminated Pregnancy Reports (TPRs), while still compiling statewide public data quarterly. The change in procedure went into effect in December.
Before then, the reports — while redacted — were regularly released under Indiana’s Access to Public Records Act.
The lawsuit, filed in Marion County Superior Court, comes just weeks after Indiana Attorney General Todd Rokita called out IDOH and Indiana’s Public Access Counselor for “collusion” and issued a non-binding advisory opinion saying terminated pregnancy reports are public records.
After several denied requests for records last fall, Voices for Life again sought terminated pregnancy reports last month — on the basis that Rokita’s opinion should compel IDOH to release records. The most recent requests were also denied by the state agency, however, prompting the legal complaint.
“Accessing these reports has always been about evaluating provider compliance with Indiana abortion law,” said Melanie Garcia Lyon, executive director of Voices for Life, during a Wednesday news conference. “If this were truly a privacy concern, the health department could easily redact info on these reports. But this isn’t about protecting women’s privacy. This is about protecting dangerous abortion providers from public scrutiny and allowing them to continue to operate without consequences for legal action.”
In the past, anti-abortion groups have used the reports to file medical licensing complaints against specific doctors for procedural issues, such as filing a TPR late.
IDOH’s new policy under fire
The state health department changed its policy after Indiana’s new, near-total abortion ban went into effect, which meant providers performed fewer abortions. State health officials were worried that information on the report could indirectly identify the women getting the procedure and sought a ruling from Indiana’s Public Access Counselor.
Among the data collected on the terminated pregnancy reports, or TPRs for short, is the age, education and marital status of the woman, the date of the abortion, gestational age of the fetus, race and ethnicity of the woman, as well as the city and county where the abortion occurred.
Public Access Counselor Luke Britt found that the report could be “reverse engineered to identify patients — especially in smaller communities.”
He agreed with IDOH that the required quarterly reports should suffice in terms of satisfying any disclosure and transparency considerations. Britt additionally said the records, created by doctors, fall under the provider-patient relationship as medical records.
Britt’s ruling isn’t binding, though.
Voices for Life attorney Benjamin Horvath said withholding TPRs amounts to a transparency concern. He maintained those records are vital to making sure the state’s abortion law is followed.
“We are not after patient information,” Horvath said. “It really is about the physician performing the abortion — where are they performing it? And then Voices for Life is able to carry out its mission, having access to it.”
Lawsuit leans on Rokita’s advisory opinion
Lyon said Voices for Life has requested and reviewed TPRs since 2022. An “enforcement team” has submitted complaints about 701 cases of apparent illegal activity gleaned from these reports, she noted.
For decades, other anti-abortion organizations have similarly requested and received TPRs from IDOH. The requesting organizations inspected the records “for apparent violations of health and safety standards among abortion providers,” according to the lawsuit.
Until October 2023, IDOH “routinely” supplied TPRs on request to Voices For Life, and redacted potential patient identifying information, the lawsuit noted. An Oct. 16 records request by Voices For Life — seeking August 2023 TPR records — was ultimately denied by IDOH in January, however.
Voices For Life had also requested TPRs filed in September, October and November, according to the lawsuit. Those requests were effectively denied in January, as well.
Email exhibits attached to the complaint show the state health department indicated the records were “no longer releasable through public records request” because they qualify as confidential medical records.
The lawsuit emphasizes a different conclusion made by Rokita in his 11-page opinion, which says the reports are not protected medical records. And he said lawmakers didn’t change the law to shield them.
The legal challenge further said IDOH’s “refusal to comply” with Voices For Life’s public records requests “deprives private citizens of their role in petitioning the Attorney General to investigate cases that suggest a termination of pregnancy was unlawful.”
It points to Rokita’s opinion that aggregated data — still available in the quarterly reports IDOH issues — for October through December 2023 “shows probable cause to believe that some abortions performed during this period may have been unlawful,” but that the lack of individual TPR data prevents the attorney general’s office from investigating them.
“Because it frustrates needed investigation into potentially unlawful abortions, IDOH’s refusal to disclose TPRs to plaintiffs places human lives at risk. It also frustrates Voices For Life’s mission to protect the lives of mothers and the unborn,” the lawsuit said. “These results of the Public Access Counselor’s Informal Opinion are the opposite of what the statute intends in mandating creation and filing of TPRs. The court must not allow this situation to continue.”