Abortion Provider Prepares Defamation Suit Against Indiana Attorney General

Alma L. Figueroa

An Indianapolis doctor who provided abortion care to a 10-year-old rape victim is preparing to sue Attorney General Todd Rokita of Indiana for defamation after he said he would investigate her actions in the case, according to a statement released on Tuesday by her lawyer.

Dr. Caitlin Bernard earned the ire of conservative lawmakers and pundits after she told The Indianapolis Star about her patient, a 10-year-old girl who crossed state lines from Ohio to receive an abortion. Ohio is one of nearly a dozen states with abortion restrictions that do not make exceptions for rape or incest.

The case drew national attention after President Biden mentioned it this month while signing an executive order in the wake of the Supreme Court’s decision to overturn Roe v. Wade.

Some on the right — including Mr. Rokita — initially doubted whether the story was true. That speculation was put to rest when Ohio authorities arrested a 27-year-old man and charged him in the rape of the child.

Mr. Rokita said he would investigate whether Dr. Bernard reported the child’s abortion to the state. “We have this abortion activist acting as a doctor with a history of failing to report,” Mr. Rokita said in an appearance on Fox News after the suspect was charged last Wednesday. “We’re gathering the evidence as we speak, and we’re going to fight this to the end, including looking at her licensure. If she failed to report it in Indiana, it’s a crime for — to not report, to intentionally not report.”

Records obtained by The New York Times and other news outlets show that Dr. Bernard informed the state of the young patient’s abortion, as is required under Indiana law.

In a tort claim notice sent on Tuesday to Mr. Rokita and filed with the City of Indianapolis, Dr. Bernard’s lawyer, Kathleen A. DeLaney, said a quick check of Indiana’s electronic licensing registry showed that Dr. Bernard’s license was “active with no disciplinary history.”

“Mr. Rokita either knew the statements were false or acted with reckless disregard of the truth or falsity of the statements,” the claim notice says.

The claim is the first step in the process to potentially filing a defamation suit against Mr. Rokita. The notice that Ms. DeLaney filed on Tuesday triggers a 90-day investigative period for the state to settle the claim, after which a lawsuit can be filed, she said in the statement.

Even after news reports emerged that Dr. Bernard notified the state, Mr. Rokita said he would continue to investigate.

“We are investigating this situation and are waiting for the relevant documents to prove if the abortion and/or the abuse were reported, as Dr. Caitlin Bernard had requirements to do both under Indiana law,” the attorney general wrote on Twitter last week.

“The failure to do so constitutes a crime in Indiana, and her behavior could also affect her licensure,” he wrote. He also raised questions about a possible violation of HIPAA, the rule that governs medical privacy.

HIPAA allows medical providers like Dr. Bernard to break confidentiality if they determine that there is a serious threat to the health or safety of the patient or others.

A spokesman for Mr. Rokita’s office called the complaints in Dr. Bernard’s potential defamation suit “baseless claims.”

“This is part of a divisive narrative and an attempt to distract from the important work of the office, including the duty to determine whether practitioners have violated the standards of practice in his or her profession, as well as federal and state laws,” the spokesman said.

Separately, Lauren Robel, the former dean of the Maurer School of Law at Indiana University, filed a complaint against Mr. Rokita with the Indiana Supreme Court Disciplinary Commission requesting that his “conduct in these matters be investigated.”

In a letter to the executive director of the commission dated July 15, Ms. Robel wrote that the attorney general “recklessly made these claims on national television, with the entirely foreseeable result that Dr. Bernard fears for her safety and has been required to obtain counsel.”

In the weeks since Dr. Bernard spoke out about the consequences of Ohio’s abortion law, local police have been alerted to concerns about her physical safety. Dr. Bernard has since hired security, according to a person familiar with her situation.

Dr. Tracey Wilkinson, an assistant professor of pediatrics at the Indiana University School of Medicine, said in an interview on Friday that she was frightened for her friend and colleague.

“I have worked with abortion providers whose colleagues have been shot and murdered,” Dr. Wilkinson said. “I have worked with abortion clinic staff who have been bombed. This is a very sensitive subject.”

Maggie Haberman contributed reporting.

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