Scott Barnhart, chief counsel and director of the consumer division of the attorney general’s office, is also named in the complaint.
“The inappropriate conduct of the Attorney General and Director deters patients who need emergency abortions from seeking treatment. It also threatens patients who seek legal abortions that their most personal and private medical records and healthcare decisions could be exposed in a baseless investigation,” the lawsuit states.
According to the lawsuit, Rokita issued at least five subpoenas for patients’ medical records.
In response to the lawsuit, Rokita spokesperson Kelly Stevenson said the attorney general’s office investigates “thousands of potential licensing, privacy, and other violations a year.”
“The majority of complaints we receive are actually from non-patients. All investigations that arise as a result of potential violations are handled in a uniform and narrowly focused manner. We will discuss this particular issue in more detail in the court documents that we will file,” Stevenson said.
The trial represents the final chapter in the conflict between Bernard and Rokita, who threatened to sue the Indiana doctor for failing to file proper paperwork with the state after performing the abortion on the 10-year-old girl from Ohio. Bernard had filed the correct documents, according to records obtained by POLITICO and other news outlets.
The girl traveled to Indiana for an abortion because she was too late in her pregnancy to get the procedure legally in Ohio, which prohibits abortions after fetal heart activity is detected, about six weeks of pregnancy. The Ohio law stalled in state court in early October.
In the lawsuit, Bernard and Caldwell argue that the claims against them are not only invalid, but that “no reasonable prosecutor could determine that they are founded.” They allege that Rokita took no “reasonable steps” to assess the complaints.
One of the complaints cited in the lawsuit says that “Miss Berhard (sic) retained knowledge of the 10-year rape from the authorities.” Another complaint says, “doctor failed to report rape of 10-year-old brought to indy from Ohio for abortion.”
A third complaint from an Ohio resident alleges that Bernard harmed their state’s image by appearing on TV shows and in the news media talking about the 10-year-old rape victim in what the person described as a “malicious act intended to harm people like me who hold a pro-life position.
“The Attorney General and the Director ignored their responsibilities in finding that this additional complaint, as well as the other consumer complaints, had merit before initiating investigations into them,” the lawsuit states. “Instead, the Attorney General and Director opened multiple investigations into Dr. Bernard despite the obvious flaws in all of the consumer complaints and the fact that publicly available information indicated the complaints were frivolous.”
In July, Bernard take the first step towards filing a defamation lawsuit against Rokita, alleging that Rokita had “recklessly” made statements that were untrue about her. The 90-day waiting period to file a defamation lawsuit expired in October, and Bernard has two years to decide whether to file a lawsuit. Kathleen DeLaney, spokeswoman for Bernard, said the doctor was “still considering his options.”
Abortion was legal until 22 weeks gestation in Indiana. A new law passed by lawmakers this summer banning abortion from conception except in cases of rape, incest, fatal fetal abnormality or if the life of the pregnant person is in danger, was ordered by a county judge in September just a week after it took effect and remains stuck by order of the Supreme Court of Indiana.
Enforcement will remain on hiatus until at least January, when the state Supreme Court is due to hear arguments in the case challenging the law’s constitutionality.