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Indiana board fines doctor for discussing rape victim’s abortion

Caitlin Bernard, the doctor who performed an abortion on a 10-year-old girl, in Indianapolis in September. (Kaiti Sullivan for The Washington Post)
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Indiana’s medical licensing board decided late Thursday to discipline a doctor who made headlines last year for performing an abortion for a 10-year-old Ohio rape victim, saying she violated state and federal privacy laws by discussing the case with a reporter. The board gave Caitlin Bernard, an OB/GYN and an assistant professor at the Indiana University School of Medicine, a letter of reprimand and ordered her to pay a $3,000 fine for violating ethical standards.

The board cleared Bernard on two other counts, determining that she did not improperly report child abuse and that she is fit to practice medicine.

For nearly a year, Indiana’s Attorney General Todd Rokita (R) pursued punishment for Bernard, who carried out the abortion in June 2022, less than a week after Roe v. Wade was struck down, enacting trigger laws.

Bernard broke patient privacy laws by telling an Indianapolis Star reporter about the patient’s care, the board decided Thursday night after a roughly 14-hour hearing that ended shortly after 11:30 p.m. Bernard’s lawyers argued that she properly reported the incident to an Indiana University Health social worker and did not run afoul of privacy laws when she discussed the patient’s case in a general and “deidentified” manner that is typical for doctors.

Records obtained by The Washington Post last year show that Bernard reported the girl’s abortion to the relevant state agencies ahead of the legally mandated deadline, which the board agreed with Thursday night, clearing her of a charge related to that issue.

In statements made after the board’s decision, Rokita and Bernard’s attorneys each framed the ruling as a victory.

Rokita in a statement late Thursday praised the board’s decision to discipline Bernard.

“Like we have said for a year, this case was about patient privacy and the trust between the doctor and patient that was broken,” he said. “What if it was your child or your parent or your sibling who was going through a sensitive medical crisis, and the doctor, who you thought was on your side, ran to the press for political reasons?”

Bernard’s legal team, led by Alice Morical, called the board’s decision an exoneration, though they “wholeheartedly” disagree with the letter of reprimand.

“The medical licensing board exonerated Dr. Bernard on Attorney General Rokita’s most serious and completely unsubstantiated claims: (1) that Dr. Bernard allegedly failed to report child abuse, and (2) that Dr. Bernard is “unfit” to practice medicine,” Morical said in a statement Friday. “The Board Chair even called Dr. Bernard a ‘good doctor.’”

Indiana University Health, Bernard’s employer, also weighed in with a statement disagreeing with the board’s determination on the HIPAA violations, saying, “We believe Dr. Bernard was compliant with privacy laws.”

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Bernard’s lawyers rejected Rokita’s allegations as baseless and politically motivated. The seven-member board of governor appointees could, by a majority vote, have either taken no action against Bernard or imposed a range of disciplinary measures up to and including the immediate termination of Bernard’s medical license.

Throughout the lengthy hearing, Bernard faced at times pointed questions about her decisions.

She explained how, as a doctor, she felt she had “an obligation” to ensure Hoosiers understood how abortion bans were affecting people across the country — and could eventually affect them.

Bernard was also asked whether she thought she would have “gotten as much attention” if she had not mentioned the 10-year-old patient’s case to a reporter.

“I don’t think that anybody would have been looking into this story as any different than any other interview that I’ve ever given if it was not politicized the way that it was by public figures in our state and in Ohio,” Bernard said.

She provided an abortion to a 10-year-old. She’s still fighting for her patients.

Cory Voight, an attorney with Rokita’s office, framed Bernard’s actions as undermining trust in medical professionals and medical privacy and accused her of being “brazen in pursuit of her own agenda” in his opening statement Thursday.

This is about privacy and trust. Privacy is the foundation, as you know, of health care. It’s something upon which patients rely,” Voight said.

Morical was unequivocal in her opening statement that Bernard followed policy and complied with Indiana law.

“Dr. Bernard could not have anticipated the atypical and intense scrutiny that this story received,” Morical said. “She did not expect that the politicians would say that she made the story up. She did not expect that people would say that the reporter didn’t have sufficient information. The politicalization of this [is] what caused this issue to continue to grow and be a focus.”

Several doctors in white coats were seen entering the hearing room Thursday to sit in support of Bernard.

The hearing extended into the evening, with witnesses testifying in person and online.

Rokita’s office drew notice from local reporters for the unusual move to bring in outside counsel from a Washington law firm for a medical licensing board hearing. With his deputies arguing on the state’s behalf, Rokita did not attend Thursday’s hearing — but appeared to be watching it remotely as he tweeted comments.

Questioning focused on whether Bernard broke medical privacy laws. A state witness and expert in privacy compliance, Andrew Mahler, said he thought Bernard violated the Health Insurance Portability and Accountability Act, known as HIPAA.

Mahler, who used to work for the federal Office of Civil Rights, said Bernard violated HIPAA when she told a colleague general details of the case at a rally, and when she did the same to a reporter, disclosing information that Mahler said could have conceivably identified the 10-year-old.

But the HIPAA expert called by Bernard’s attorneys disagreed.

“The information that she shared was age, gender and state,” said Paige Joyner, who has done hundreds of HIPAA risk assessments and also used to work in the Office of Civil Rights. “That’s not protected health information. There was nothing that was individually identifiable.”

The 10-year-old’s case garnered international attention when it first came to light in a July Indianapolis Star story about pregnant patients coming to Indiana in response to abortion restrictions elsewhere due to trigger laws enacted in the wake of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization in June.

The story instantly became a political lightning rod, with abortion rights advocates citing it as an immediate and horrific example of how the end of federal abortion protections was harming women and girls, while antiabortion Republicans dismissed the story as fictitious. But two weeks later, a 27-year-old Ohio man was arrested for felony rape after allegedly confessing to the crime.

Late that month, Bernard wrote an opinion article for The Washington Post, defending her choice to provide abortion care.

How local journalists proved a 10-year-old’s abortion wasn’t a hoax

Bernard sued Rokita last year, alleging in her suit that his office relied on “facially invalid consumer complaints to justify multiple, duplicative, and overbroad investigations into law-abiding physicians.”

An Indiana judge in December denied Bernard’s request to block Rokita’s efforts, saying it was a matter for the state licensing board. But Marion County Judge Heather Welch also said Rokita acted unlawfully by making public comments about investigating Bernard for potential wrongdoing — a violation of his office’s confidentiality requirements.

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