Anti-abortion group argues that Indiana health department’s abortion records must be public

(INDIANA CAPITAL CHRONICLE) — In defense of its lawsuit against the state health department, a South Bend-based anti-abortion group doubled down in new court filings that related medical records do not compromise patient privacy and should be made available to the public.

The ongoing lawsuit was filed in May by “Voices for Life,” which seeks to regain access to Terminated Pregnancy Reports (TPRs) that are no longer being released by the Indiana Department of Health (IDOH).

The state health department is seeking to dismiss the lawsuit, however, maintaining that TPRs qualify as medical records and are exempt from disclosure under Indiana’s Access to Public Records Act, also known as APRA. The agency’s motion to dismiss is still pending.

But Voices for Life’s response to that motion, filed Tuesday, argues that IDOH’s reading of the TPR law “is flawed.”

“It tramples the legislative purposes behind TPRs by cutting off the public’s access to the public records it needs to examine whether abortion providers are complying with the law, and by depriving the public of means to ask whether public officials are meeting their duties to enforce the law, and whether corrective action, including additional legislation, is needed to improve the public weal,” Benjamin Horvath, representing Voices for Life, wrote in the legal filing.

“The black-letter, plain meaning of the TPR statute is that the TPRs are reports and public records, not ‘patient medical records and charts’ exempt from public access by APRA,” he continued.

It’s now up to a Marion County Superior Court judge to decide next steps.

Prior to lawmakers passing a strict abortion ban, IDOH regularly released the reports with information redacted to protect privacy.

Voices for Life presses for records

Horvath holds that a TPR report is separate from a medical record, noting the report is filed by a medical provider and then submitted to the state government via IDOH. TPRs — which he called “a vital enforcement tool” — describe “selected facts and circumstances of the medical (abortion) care that was delivered.”

“Patient medical records have quite a different purpose from a TPR,” Horvath said. “While a TPR does not identify a patient, but reports data, a patient’s medical record ‘records’ the diagnosis, prognosis, and history of treatment ‘of the patient.’”

He emphasized that TPRs do not identify the individual patient who received care — meaning there is no patient to give or withhold consent, and no patient privacy interests to protect. 

“Hence, TPRs are not ‘patient medical records and charts’ under APRA,” Horvath wrote, adding that “… anonymized data, even if derived from a patient, is not part of the patient’s medical record once the identifying link to the patient is removed.”

He argued, too, against IDOH’s claims that the agency acts as a healthcare “provider” when it receives the TPR. Rather, Horvath said, IDOH is only “acting as a state regulatory agency,” in this case tasked with receiving TPRs from abortion providers as required by Indiana law. 

Also paramount to Voices for Life’s case is the group’s belief that TPRs were intended by the state legislature to be public records and accessible by the public.

Horvath said TPRs give Hoosiers “access to the information they need to determine whether public officials are enforcing the laws that the citizens of Indiana have enacted.” They also enable complaints to be made to the Indiana Office of the Attorney General, which is responsible for receiving, investigating and prosecuting complaints – including violations of the state’s abortion laws. 

In the past, groups have filed complaints on specific doctors listed on the reports when notification was late.

“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,” Horvath said.

An ongoing case

IDOH and Dr. Lindsay Weaver, the state health commissioner, are currently represented by Indianapolis-based Lewis and Wilkins LLP, rather than in-house attorneys from Indiana Attorney General Todd Rokita’s office.

The South Bend-based “Voices for Life” group is suing the IDOH after it stopped releasing individual TPRs, while still compiling statewide public data quarterly. The change in procedure went into effect in December.

The lawsuit, filed in Marion County Superior Court, came just weeks after Rokita called out IDOH and Indiana’s Public Access Counselor for “collusion” and issued a non-binding advisory opinion saying TPRs are public records.

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.

The state health department changed its policy after Indiana’s new, near-total abortion ban went into effect, which meant providers performed far 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 Public Access Counselor Luke Britt.

Britt agreed that the report could be “reverse engineered to identify patients — especially in smaller communities.” 

He found the required quarterly reports of aggregate data 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, either.

So far, no court dates have been set in the TPR case.