‘Three-stop train’: Judge considers dismissal in abortion records case as parties ready appeals

INDIANAPOLIS (INDIANA CAPITAL CHRONICLE) — A Marion County judge on Friday heard attorneys wrestle over the definition of a medical record as he prepared to either dismiss an abortion records lawsuit or let it move forward.

The dispute hinges on the question of whether a terminated pregnancy report is a medical record exempt from public disclosure.

Superior Court Judge Timothy Oakes acknowledged that, no matter which side he vindicated, the loser would appeal to a higher court.

“Is my assumption correct that, regardless of my decision here today, that this is a three-stop train and we’re only at stop one?” he asked the plaintiff.

“Yes, your honor,” attorney Patrick Gillen replied. He represents the plaintiffs in the case.

The dispute has roots in the state’s near-total abortion ban.

The Indiana Department of Health (IDOH) said in January that it would stop releasing individual terminated pregnancy reports out of concern for patient privacy. The agency cited the small number of procedures and newly bulked-up reporting requirements.

South Bend-based Voices for Life filed suit in May, seeking access to the records. The anti-abortion group said it wanted to evaluate compliance with the recently implemented ban. This includes seeing the names of the doctors on the form and the date of the procedures.

Indiana’s Attorney General Todd Rokita has also waded into the fight, siding with the South Bend group toward disclosure and going against the state’s health department — an agency he represents in court. The conflict of interest spurred a brief spat over legal representation and at least one attorney has reportedly filed a disciplinary grievance with the board overseeing Rokita’s law license.

IDOH countered in July, asking the judge to dismiss the case. After one delay, the parties met at the Community Justice Campus in Indianapolis.

Medical record dispute

Medical records fall under a confidentiality exception to Indiana’s public records access law.

Ryan Shouse, an attorney with Indianapolis-based Lewis and Wilkins LLP representing IDOH, argued the terminated pregnancy reports are medical records, and can’t be released.

Per Indiana Code, “medical records” contain three elements: written or printed information; are in the possession of a provider; and concern a patient’s diagnosis, treatment or prognosis.

Shouse said the reports are written, are in the possession of IDOH — which he contended is a provider — and contain detailed information about the patients and their specific procedures.

He said the statute doesn’t require that a patient’s name be on a document for it to be a medical record.

But Gillen, an attorney with the Thomas More Society representing Voices for Life, said a name is paramount.

A “plain, ordinary and common-sense reading” of the law, Gillen said, “requires that the medical information be linked to a specific individual.”

And he asserted that IDOH holds the records as a regulator, rather than as a provider. The agency, Gillen continued, “has no idea who the person is.”

While it’s possible that a report could be “reverse-engineered” to identify a specific patient, Gillen argued, the “detective work” needed shows that the report itself isn’t a medical record.

Turning to lawmakers

The judge asked both sides for the risk they faced if he ruled against them.

Shouse said that the status quo held for now, because IDOH is not publicly releasing individual reports.

He said the agency feared the “improper” release of patient-identifying information to the general public, but called the reverse-engineering argument a “consequence,” not part of his side’s legal strategy.

Gillen dismissed those fears as “remote and speculative.”

The risk to his client, he said, was the whims of the legislature.

He said that if the case went his way, a legislative fix wouldn’t be necessary. But his client could go to the Statehouse “if an unanticipated problem comes to life.”

He said legislative “sausage-making” could prevent Voices for Life from “vindicat(ing) their rights.”

An intervenor, meanwhile said doctors want more clarity.

Katherine Jack, an attorney from Jack Law Office representing the Indianapolis Dr. Caitlin Bernard, said an unfavorable ruling risked uncertainty for medical providers.

Jack said it’s doctors’ mandate to keep medical records confidential. The intervenor was neutral on the motion to dismiss.

Gillen dismissed that, arguing that doctors wouldn’t be held liable for filing terminated pregnancy reports, since the law requires them to do so.

But patients have been identified with less.

Bernard herself landed in licensing trouble in 2022 after telling the Indianapolis Star about a 10-year-old Ohio abortion patient who was six weeks and three days pregnant.

Reporters used that information to identify the perpetrator, and others found the patient — a rape survivor who was close to her assaulter — after multiple national outlets claimed the girl didn’t exist.

Rokita pushed Bernard’s disclosure as improper, and the state’s Medical Licensing Board agreed, reprimanding Bernard and fining her $3,000 last May.