Judge to decide if Indiana Department of Health can release terminated pregnancy reports

INDIANAPOLIS — A Marion County judge must soon decide whether to block the Indiana Department of Health from releasing abortion records to the public.

The Marion Superior Court heard arguments during an emergency hearing Tuesday afternoon after two two abortion providers, identified as Caitlin Bernard and Caroline Rouse, filed a lawsuit to prevent the release of Termination of Pregnancy Reports (TPRs). Bernard and Rouse are both licensed OBGYN physicians.

This marks the latest development in an ongoing legal battle concerning the public release of abortion records across the Hoosier State after IDOH reached a settlement with the anti-abortion group Voices for Life on Feb. 4. Voices for Life had accused IDOH of violating the state’s Access to Public Records Act for failing to publicly release abortion records.

Thomas More Society, a law firm based out of Chicago, filed the lawsuit on behalf of the anti-abortion group in May 2024. The pro-life organization has sought the public release of TPRs since 2022 as part of a wider effort to confirm that healthcare professionals “comply with Indiana laws protecting the unborn.”

The settlement means that IDOH must now release the records outlining certain abortions performed across Indiana, with redactions being made to protect the identities of patients.

However, Bernard and Rouse argue that releasing those records would compromise the privacy of their medical care and personal health decisions.

The reports can list demographics, medical histories, zip codes and the county of residence for individual patients but they do not name any of the patients, according to the Associated Press. The reports also detail the procedure type, the listed reason for the abortion, the physician’s name and the date the abortion was performed.

The physicians urged the judge to enter a temporary restraining order to bar the health department from releasing the TPRs.

Voices for Life and attorneys for the state filed a response to this motion. They urged the judge to deny the restraining order, arguing there is “no harm at all” for physicians or patients and that the reports are not medical records since the names of the patients would be redacted.

Attorney General Todd Rokita has also weighed in on the controversial topic, stating that redactions would be made to protect the identities of patients. Rokita asserted the reports do not count as medical records, stating “there is no effective way” for him or other officials to ensure healthcare professionals are following Indiana law without their release.

IDOH responded to Rokita, arguing that TPRs should not count as public records, citing an informal opinion issued by an open records official, according to the Associated Press.

Health officials had initially complied with Voice of Life’s requests for access to TPRs until 2023 when it asserted that it no longer could release this information to avoid breaking confidentiality patient standards.

The total number of abortions declined dramatically after the state enacted a near-total abortion ban following the overturning of Roe v. Wade in June 2022. Indiana became one of the first states to implement stricter abortion bans after the controversial ruling removed federal abortion protections.

Since abortions were being performed under stricter circumstances, IDOH officially opted to stop releasing individual reports in a bid to protect patient privacy. Instead, the department released its regular summary data four times a year.

Indiana’s abortion law only offered a few exceptions for those seeking an abortion in state lines; in certain cases of rape or incest, if the mother’s life was in danger, or for fetal anomalies.

Bernard was previously embroiled in a legal battle with Rokita after the Indianapolis obstetrician-gynecologist was penalized by the Indiana Medical Licensing Board for violating patient privacy laws. This dispute centered on Bernard’s public comments about an abortion she had provided to a 10-year-old who was the victim of a rape in Ohio.

Rokita filed a formal complaint against her, arguing that she violated the state’s patient privacy laws after failing to report the child’s abuse. Bernard and her attorneys denied these claims, arguing that she did inform the Indiana Department of Child Services of the abuse and complied with Indiana’s three-day window when she reported the abortion on July 2, 2022.

All of this follows Executive Order 25-20, which was signed by Indiana Gov. Mike Braun on Jan. 21, requiring the public release of individual reports on abortion.