An Indianapolis doctor who provided an abortion to a 10-year-old rape victim is preparing to sue Indiana Attorney General Todd Rokita for defamation after he said he would investigate her actions in the case, according to a statement released 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 have an abortion. Ohio is one of nearly a dozen states with abortion restrictions that do not make exceptions for rape or incest.
The case gained national attention after President Biden mentioned it this month while signing an executive order following the Supreme Court’s decision to overturn Roe v. Wade.
Some on the right – including Mr Rokita – initially doubted the story was true. That speculation was put to rest when authorities in Ohio arrested a 27-year-old man and charged him with raping the child.
Mr. Rokita said he would investigate whether Dr. Bernard told the state about the child’s abortion. “We have this abortion activist acting as a doctor with a history of not reporting,” Mr. Rokita said in an appearance on Fox News after the suspect was charged last Wednesday. “We are gathering evidence as we speak and will fight this all the way, including looking at her licence. If she failed to report it in Indiana, that’s a felony — failure to report, willful failure to report.
Read more about the end of Roe v. Wade
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 required by Indiana law.
In a notice of tort claim sent Tuesday to Mr. Rokita and filed with the city of Indianapolis, Dr. Bernard’s attorney, Kathleen A. Delaney, said a quick check of Indiana’s electronic license registry showed that the license of Dr. Bernard is “active with no disciplinary history.”
“Mr. Rokita either knew the statements were false or acted with reckless disregard for the truth or falsity of the statements,” the notice of claim states.
The lawsuit is the first step in the process of potentially filing a defamation lawsuit against Mr. Rokita. The notice Ms. Delaney filed Tuesday triggers a 90-day investigative period for the state to settle the claim, after which a lawsuit could be filed, she said in the statement.
Even after news broke that Dr. Bernard had notified the state, Mr. Rokita said he would continue to investigate.
“We are investigating this situation and awaiting the relevant documents to prove whether the abortion and/or abuse was reported as Dr. Caitlin Bernard was required to do both under Indiana law,” the attorney general tweeted last week.
“Failure to do so is a felony in Indiana and her conduct may also affect her license,” he wrote. It also raised questions about a possible violation of HIPAA, the rule that governs medical privacy.
HIPAA allows medical providers like Dr. Bernard to breach confidentiality if they determine 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 allegations.”
“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 a practitioner has 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 asking that “his conduct in these matters be investigated.”
In a July 15 letter to the commission’s executive director, Ms. Robel wrote that the attorney general “recklessly made these allegations on national television with the entirely predictable result that Dr. Bernard feared for her safety and was required to obtain counsel .”
In the weeks since Dr. Bernard spoke out about the implications 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. Tracy Wilkinson, an assistant professor of pediatrics at the Indiana University School of Medicine, said in an interview Friday that she fears for her friend and colleague.
“I’ve worked with abortion providers whose colleagues have been shot and killed,” Dr. Wilkinson said. “I have worked with staff at an abortion clinic that was bombed. This is a very sensitive subject.”
Maggie Haberman contributed reporting.
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