Imagine you commit a crime. But you have no criminal history; you fess up immediately and show remorse. The judge would like to give you probation.
But Indiana legislators stepped in and said you “shall” receive a sentence of three years in prison.
That’s kind of what lawmakers did in a small section of the newly-enacted abortion ban – mandating the revocation of a doctor’s license who performs an unlawful abortion. No letter of reprimand or probation or short-term suspension. That doctor loses their livelihood.
Talk about a chilling effect. If a doctor thinks a woman’s health or life is in danger and performs an abortion but others later disagree, will the physician chance it?
Hoosiers have been getting a look at medical licensing issues – perhaps for the first time – in recent weeks as an Indiana abortion doctor fends off consumer complaints and the new abortion restrictions come into focus.
Over the years I have spent countless hours at hearings of the Indiana Medical Licensing Board, so it’s important to understand everything in play.
The beginning of the process starts with you – anyone can file a consumer complaint against a doctor through a link on the medical licensing board website that directs to the Indiana Attorney General’s office. There are no requirements the person who files is a patient or even lives in Indiana.
This has been evident in the case of Dr. Caitlin Bernard – the Indiana doctor who oversaw the abortion of a 10-year-old rape victim from Ohio. At least six complaints were filed, and according to Bernard’s attorney, the people had no interaction with Bernard. The six complaints came from individuals who are residents of California, Kentucky, Missouri, Ohio and one from Indiana.
By law, all complaints are investigated by the Indiana Attorney General’s Office, which acts as the prosecutor in cases of physician misconduct. This is the juncture that Attorney General Todd Rokita’s office is at with Bernard. If the office finds a credible case, it files a formal charge that a doctor has broken state rules. Most complaints don’t result in formal charges.
If a case moves forward, the 7-member board – all appointed by the governor — then hears the case. Five of the members are doctors; one is an osteopathic physician; and, one is a consumer member. The process usually takes months and most cases are disposed of through a settlement agreement. For instance, a doctor agrees to get substance abuse help and goes on probation. Or a short-term suspension is negotiated with terms to meet to practice again.
About 30 cases are opened a year before the Medical Licensing Board, according to staff.
If a hearing takes place, hours of testimony over multiple days is the norm. It is exhaustive. And the board talks candidly in public about the merits of the case. The board also has a whole range of options and complete discretion on punishment.
That’s where the new law comes in, though.
Instead of leaving discipline up to the board members – as with other medical care – it says the board “shall” revoke the doctor’s license if the Attorney General’s Office proves the case by a preponderance of the evidence.
A preponderance of evidence is often used in civil cases – meaning more likely than not. That is a far cry from beyond a reasonable doubt, the standard used in criminal cases.
A revocation is extremely rare in Indiana. Over the last five years just nine physician licenses have been revoked. And legally it means they can’t reapply for a license in the state for seven years. A revocation in one state often leads to licensure problems in others.
My concern is that doctors aren’t going to want to chance the loss of their license on something that might be considered a judgment call, which means less access to abortion care. Then again that’s exactly what Indiana Republican legislators want.
Niki Kelly is editor-in-chief of indianacapitalchronicle.com, where this commentary first appeared. She has covered the Indiana Statehouse since 1999 for publications including the Fort Wayne Journal Gazette. Send comments to [email protected].
