Indiana doctor reprimanded for speaking publicly about 10-year-old girl's abortion

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FILE-Doctor Caitlin Bernard in Indianapolis on Sept. 28, 2022. (Kaiti Sullivan for The Washington Post via Getty Images)

An Indiana board decided Thursday night to reprimand an Indianapolis doctor after finding that she violated patient privacy laws by talking publicly about providing an abortion to a 10-year-old rape victim from neighboring Ohio.

The state Medical Licensing Board voted that Dr. Caitlin Bernard didn’t abide by privacy laws when she told a newspaper reporter about the girl’s treatment in a case that became a flashpoint in the national abortion debate days after the U.S. Supreme Court overturned Roe v. Wade last summer.

The board, however, rejected accusations from Indiana’s Republican attorney general that Bernard violated state law by not reporting the child abuse to Indiana authorities. Board members chose to fine Bernard $3,000 for the violations, turning down a request from the attorney general’s office to suspend Bernard’s license. The board issued no restrictions on her practice of medicine.

Bernard has consistently defended her actions, and she told the board on Thursday that she followed Indiana’s reporting requirements and hospital policy by notifying hospital social workers about the child abuse — and that the girl’s rape was already being investigated by Ohio authorities. Bernard's lawyers also said that she didn’t release any identifying information about the girl that would break privacy laws.

The Indianapolis Star cited the girl’s case in a July 1 article that sparked a national political uproar in the weeks after last summer's Roe v. Wade decision put into effect an Ohio law that prohibited abortions after six weeks of pregnancy. Some news outlets and Republican politicians falsely suggested Bernard fabricated the story, until a 27-year-old man was charged with the rape in Columbus, Ohio. During an event at the White House, President Joe Biden nearly shouted his outrage over the case.

Medical board President Dr. John Strobel said he believed Bernard went too far in telling a reporter about the girl's pending abortion and that physicians need to be careful about observing patient privacy.

"I don’t think she expected this to go viral," Strobel said of Bernard. "I don’t think she expected this attention to be brought to this patient. It did. It happened."

Bernard's lawyer Alice Morical told the board Thursday that the doctor reported child abuse of patients many times a year and that a hospital social worker had confirmed with Ohio child protection staffers that it was safe for the girl to leave with her mother.

"Dr. Bernard could not have anticipated the atypical and intense scrutiny that this story received," Morical said. "She did not expect that politicians would say that she made the story up."

Amid the wave of attention to the girl’s case last summer, Indiana Attorney General Todd Rokita, who is stridently anti-abortion, told Fox News he would investigate Bernard’s actions and called her an "abortion activist acting as a doctor."

Deputy Attorney General Cory Voight argued Thursday that the board needed to address what he called an "egregious violation" of patient privacy and Bernard’s failure to notify Indiana’s Department of Child Services and police about the rape.

"There’s been no case like this before the board," Voight said. "No physician has been as brazen in pursuit of their own agenda."

Voight asked Bernard why she discussed the Ohio girl’s case with the newspaper reporter and later in other news media interviews rather than using a hypothetical situation.

"I think that it’s incredibly important for people to understand the real-world impacts of the laws of this country about abortion," Bernard said. "I think it’s important for people to know what patients will have to go through because of legislation that is being passed, and a hypothetical does not make that impact."

Board member Dr. Bharat Barai opposed finding that Bernard violated privacy laws, saying that she released no direct protected identifying information such as the girl’s name or address. He disagreed with the board majority’s view that the combination of information about the rare instance of a pregnant 10-year-old girl could have exposed her identity.

"We are trying to suppose that yeah this could have been done and maybe somebody could have discovered it," Barai said.

During Thursday's hearing lasting some 13 hours, Rokita’s office kept up a running commentary on its official Twitter account, with one post saying: "When Bernard talked about the high priority she puts on legislation and speaking to the public, she did so at the expense of her own patient. This shows where her priorities are as an activist rather than a doctor."

Bernard objected to Voight saying her choice to publicly discuss the case led to the misconduct allegations.

"I think if the attorney general, Todd Rokita, had not chosen to make this his political stunt we wouldn’t be here today," Bernard said.

Lawyers for the attorney general’s office repeatedly raised questions about whether the policy of Bernard’s employer, Indiana University Health, to report suspected child abuse to authorities in the state where the abuse occurred complied with Indiana law. Officials of IU Health, which is the state’s largest hospital system, testified that the Indiana Department of Child Services has never objected to the hospital policy.

The Indiana board — with five doctors and one attorney present who were appointed or reappointed by Republican Gov. Eric Holcomb — had wide latitude under state law allowing it to issue reprimand letters or suspend, revoke or place on probation a doctor’s license.

Ohio’s law imposing a near-ban on abortion was in effect for about two months, before being put on hold as a lawsuit against it plays out. Indiana’s Republican-dominated Legislature approved a statewide abortion ban weeks after the Ohio girl’s case drew attention, but abortions have continued to be permitted in the state while awaiting an Indiana Supreme Court decision on the ban’s constitutionality.

Bernard unsuccessfully tried to block Rokita’s investigation last fall, although an Indianapolis judge wrote that Rokita made "clearly unlawful breaches" of state confidentiality laws with his public comments about investigating the doctor before filing the medical licensing complaint against her.