Indiana Department of Health hires private lawyers, disregarding AG in abortion records lawsuit

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By  Casey Smith | Indiana Capital Chronicle

For The Republic

INDIANAPOLIS — Amid an ongoing legal battle over abortion-related records, the Indiana Department of Health appears to have hired independent attorneys to represent the state agency in court — circumventing the Indiana Attorney General’s office, which denied the request for outside counsel.

At issue is a lawsuit filed last month by anti-abortion group “Voices for Life,” which seeks to regain access to Terminated Pregnancy Reports (TPRs) that are no longer being released by the state health department.

Court records show IDOH and Dr. Lindsay Weaver, the state health commissioner, are currently represented by Indianapolis-based Lewis and Wilkins LLP. Three attorneys with the firm — Paul O. Mullin, Joshua Thomas Martin and Eric Ryan Shouse — filed their appearance on behalf of the defendants on May 31.

Indiana Attorney General Todd Rokita’s office told the Indiana Capital Chronicle in a statement that “we did not grant the request for IDOH to hire its own outside counsel,” however.

Indiana Attorney Todd Rokita is pictured in front of the Statehouse in an official video. (Screenshot from X) 

 

 

 

 

 

 

Indiana law specifically stipulates that no state agency can hire an attorney to represent it and the state without written consent from the attorney general.

IDOH did not respond to numerous requests for comment from the Capital Chronicle starting last week, nor did it provide a copy of the request sent by the agency to the attorney general’s office.

The dispute evokes a separate, recent power struggle between Gov. Eric Holcomb, Rokita and the General Assembly that began in 2020, after the governor issued COVID-19 emergency orders that some conservative lawmakers didn’t like.

The following year, Holcomb vetoed a bill that would limit his powers during a state of emergency, like a pandemic. Shortly after, state lawmakers overrode his veto, prompting Holcomb to file a lawsuit against the General Assembly.

Though Rokita, who sided with lawmakers, maintained the governor was not allowed to hire an outside lawyer without his consent, the Marion County Superior Court disagreed.

Judge Patrick Dietrick wrote at the time that — because the lawsuit involved state entities on both sides of the issue — Rokita “cannot represent two opposing parties in the same lawsuit” and that the attorney general had had “an irreconcilable conflict of interest” in the situation.

Health department disregards AG’s office

The South Bend-based “Voices for Life” group is suing the IDOH after it stopped releasing individual TPRs, while still compiling statewide public data quarterly. The change in procedure went into effect in December.

Before then, the reports — while redacted — were regularly released under Indiana’s Access to Public Records Act.

The lawsuit, filed in Marion County Superior Court, came just weeks after Rokita called out IDOH and Indiana’s Public Access Counselor for “collusion” and issued a non-binding advisory opinion saying TPRs are public records.

In the past, anti-abortion groups have used the reports to file medical licensing complaints against specific doctors for procedural issues, such as filing a TPR late.

The state health department changed its policy after Indiana’s new, near-total abortion ban went into effect, which meant providers performed fewer abortions. State health officials were worried that information on the report could indirectly identify the women getting the procedure and sought a ruling from Indiana’s Public Access Counselor.

Among the data collected on the terminated pregnancy reports is the age, education and marital status of the woman, the date of the abortion, gestational age of the fetus, race and ethnicity of the woman, as well as the city and county where the abortion occurred.

Public Access Counselor Luke Britt agreed that the report could be “reverse engineered to identify patients — especially in smaller communities.”

He found the required quarterly reports of aggregate data should suffice in terms of satisfying any disclosure and transparency considerations. Britt additionally said the records, created by doctors, fall under the provider-patient relationship as medical records.

Britt’s ruling isn’t binding, though.

Lewis and Wilkins LLP has received dozens of state contracts in the last two decades — totaling more than $32 million — to provide various legal services for the attorney general’s office, including defense work for state agencies involved in litigation, according to records maintained by the Indiana Department of Administration.

The firm currently holds a multi-year $13 million contract “to provide legal services approved by the OAG.” Still, the scope of their work for IDOH is unclear.

Other developments in the lawsuit

No court dates have so far been set in the TPR case. IDOH has until July 3 to respond to the plaintiff’s complaint.

On Tuesday, however, two Indiana physicians who provide abortion services filed a motion to intervene, seeking to prevent Voices for Life from obtaining their patients’ private medical information.

Dr. Caroline Rouse and Dr. Caitlin Bernard said in their filing that even if the attorney general’s office does not make an official appearance in the case, IDOH is still strained by Rokita’s “political pressure campaign” to make TPRs public.

“The attorney general has taken the position that, in enacting the TPR statute, the legislature intended to authorize anti-abortion groups like Voices for Life to act as private attorneys general, surveilling doctors who provide abortion care and acting in concert with the attorney general’s office to regulate them,” the doctors wrote.

“But the statute makes no mention of this, and Indiana’s abortion laws are generally enforced through criminal proceedings brought by local prosecutors,” they continued. “As abortion providers, the doctors have an interest in demonstrating to the court why this position is incorrect and thereby avoiding unauthorized surveillance by a private organization with no relevant expertise and a stated mission ‘to end abortion.’”

The filing follows a legal saga surrounding Bernard, who oversaw a medication abortion for a 10-year-old rape victim from Ohio in 2022.

After the state sought to suspend Bernard’s medical license, the state licensing board ultimately ruled in May 2023 that the doctor violated state and federal patient privacy laws, but declined to take action affecting her ability to practice.

The Lawyering Project, which is representing Bernard and Rouse, emphasized that the “minimal information” Bernard shared about her Ohio patient “pales in comparison to the extensive information contained in the TPRs.”

The doctors and their attorneys noted, too, that since Indiana’s strict abortion ban took effect in August 2023, few pregnant people have been able to obtain abortion care in the state, “thus raising the risk that the TPRs could be used to identify patients.”

Only 46 legal abortions occurred in Indiana between October 1 and Dec. 31 of last year, according to IDOH. Similarly, just 45 abortion were performed during the first three months of 2024.

“People who need an abortion deserve access to confidential medical care without being exposed to harassment and intimidation by anti-abortion extremists,” said Stephanie Toti, executive director of the Lawyering Project.  “Our clients are committed to upholding the dignity of their patients and protecting the privacy of their medical records.”

— The Indiana Capital Chronicle covers state government and the state legislature. For more, visit indianacapitalchronicle.com.