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Indiana AG’s comments endangered abortion provider, complaint says

The former dean of Indiana University Maurer School of Law accused Attorney General Todd Rokita (R) of legal misconduct

Indiana Attorney General Todd Rokita (R). (Darron Cummings/AP)
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A misconduct complaint alleges Indiana Attorney General Todd Rokita intended to “harass and intimidate” doctors who perform abortions when he publicly cast doubts about whether an Indianapolis OB/GYN complied with state law after helping a 10-year-old rape victim terminate a pregnancy.

The newly filed complaint against Indiana’s top prosecutor is expected to trigger a probe by the state’s Supreme Court Disciplinary Commission after Rokita, a Republican, claimed last week on Fox News that physician Caitlin Bernard had a “history of failing to report” abortions in child-abuse cases and rapidly launched an investigation into her licensure.

A record obtained by The Washington Post showed that Bernard, who administered the abortion medication to a girl forced to travel from her home state of Ohio for the service, reported the incident to relevant state agencies as required by Indiana law.

Record shows Indiana doctor fulfilled duty to report 10-year-old’s abortion

Kathleen DeLaney, an attorney for Bernard, told The Post on Monday that Rokita’s actions have “touched a nerve” in the legal community for what she called a blatant ethical violation.

“As the highest-ranking lawyer in Indiana, Todd Rokita should be held to a high standard of legal conduct and ethical behavior, and both his comments and the continued presence of his baseless claims on his state-run website suggest that a disciplinary investigation is warranted,” DeLaney said.

Lauren Robel, the former dean of Indiana University’s Maurer School of Law, filed the complaint requesting an investigation into Rokita on Friday. It alleges that the attorney general made “inflammatory statements on national television, without due diligence concerning their truthfulness,” according to a letter obtained by The Post.

“The attorney general is tasked with protecting citizens, not going after them without evidence on television,” Robel told The Post. “I just fear that without those of us in the bar calling [out] that kind of behavior when we see it, we lower the standards” of ethics for all lawyers. (Although Robel said she does not personally know Bernard, both women are affiliated with Indiana University.)

A spokesperson for Rokita’s office dismissed Robel’s complaint, saying in a statement, “any attorney or client can file anything they want, even without basis, which is the case here.”

The attorney general’s office said that while no enforcement actions have been filed against Bernard so far, it will continue to pursue its investigation of her conduct.

The disciplinary commission is tasked with investigating and prosecuting any claims of Indiana lawyers violating the state’s rules of professional conduct. Once a complaint is filed, the agency reviews the information and decides whether to launch an investigation. If it finds there are grounds for an attorney to be disciplined, the case is sent to the state Supreme Court for formal charging. In the range of possible outcomes, disbarment is the most extreme.

Representatives with the Indiana Supreme Court Disciplinary Commission did not respond to a request for comment Monday.

Kathleen Clark, an ethics professor at the Washington University in St. Louis School of Law, said the best chance of spurring “overwhelmed bar prosecutors” into pursuing a case against an attorney general is an ethics complaint that makes clear arguments for how the rules of conduct were allegedly broken.

The strongest argument against Rokita is likely to be his alleged violation of rules on trial publicity, which generally dictate how lawyers involved in trials or investigations may publicly comment on a case. The guidelines seek to balance public interest and free speech while not “heightening public condemnation of the accused,” Clark said.

Doctor in 10-year-old’s abortion case faced 2020 kidnapping threat against daughter

She said Rokita’s comments could affect the fairness of any investigation and could leave Bernard in “actual physical jeopardy.”

“No government lawyer is supposed to be a bully,” Clark said.

Susan Carle, a law professor at American University’s Washington College of Law, said disciplinary commissions have historically been wary of taking up cases concerning public officials. But the country’s highly polarized environment and the discourse it has prompted have blurred the line between law and politics — and kindled a push for accountability from bar associations across the nation.

“As the sort of level of political invective and lack of standards about truthfulness continue to become worse, there are going to be more and more efforts along these lines,” Carle said.

Should the commission act on the complaint against Rokita, he would be the second successive Indiana attorney general to face a misconduct probe. The state Supreme Court suspended for 30 days the law license of Rokita’s predecessor, Republican Curtis Hill, after allegations that he groped four women. Hill lost his reelection bid to Rokita in 2020.

If the commission determines that Rokita’s comments were out of line, “then I would like him to retract that statement and apologize for it,” said Robel, who filed the complaint.

Gershon Fuentes, 27, was arraigned on July 13 in Ohio, where he was charged with the rape of a 10-year-old girl who had to travel to Indiana for an abortion. (Video: Reuters)

On July 13, Robel watched as Rokita made what she called “baseless claims” against Bernard during an interview with Fox News host Jesse Watters. Hours earlier, a man had been charged with raping the 10-year-old girl, who had to travel to Indiana because of Ohio’s ban on abortions after the six-week mark, the Indianapolis Star first reported. The case rapidly divided the nation, with some pointing to it as an example of the consequences of overturning Roe v. Wade, while others claimed the story was “too good to confirm.”

Under Indiana law — which allows abortion up to 22 weeks of pregnancy — providers are required to alert the state’s health and child services departments of pregnancy terminations in patients younger than 16 within three days of the procedure. Failure to do so constitutes a misdemeanor.

Man charged in rape of 10-year-old girl who had to travel for abortion

In the Fox interview, Rokita said that his office was “gathering the evidence” and preparing to “fight this to the end” when Watters questioned whether Bernard had followed the reporting law and asked whether she would be criminally charged. That day, he also sent a letter to Indiana Gov. Eric Holcomb (R) requesting an intervention, saying his office hadn’t received documentation that the girl’s abortion had been properly reported.

The next day, however, media outlets obtained the terminated-pregnancy report showing that Bernard had alerted state agencies that the girl had been a victim of abuse within the three-day window.

Robel said in her complaint that Rokita’s comments “placed [Bernard] in danger.” Bernard is already listed as a “local abortion threat” on a website for Right to Life Michiana, an antiabortion group based in South Bend, Ind. Two years ago, The Post reported, a kidnapping threat was made against her daughter — forcing Bernard to stop providing abortion services at a South Bend clinic.

In a state that’s slated to outlaw abortion in the coming week when its GOP-controlled legislature holds a special session, Rokita’s probe and statements feel like “an attempt to intimidate” Bernard and other abortion providers, Robel said.

“If he wants to stop abortion in the state of Indiana, there are legal channels to do that,” she said. “Harassment and intimidation by the chief legal officer of the state of Indiana is not one of them.”

“This is the opposite of the rule of law,” Robel added.

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