By Marilyn Odendahl, The Indiana Citizen

• Sep 15, 2024

  

  The hearing over whether termination of pregnancy reports are public records began Friday morning with opposing parties acknowledging that whatever the trial judge decided would likely be appealed all the way to the Indiana Supreme Court.

  Marion County Superior Court Judge Timothy Oakes presided over the hearing on the motion to dismiss in Voices for Life v. Indiana Department of Health, 49D02-2405-MI-019876. At issue is the termination of pregnancy reports that health-care providers must file with the Indiana Department of Health after every abortion.

  The TPRs had been public records, but when Indiana’s near-total abortion ban took effect in 2023 and abortions declined dramatically, the health department quit releasing the documents because of concerns that the few women receiving abortion care in the state could now be identified.

  During the hearing, the opposing sides argued over the statutory definition of the TPR. Attorneys representing Voices for Life, an anti-abortion nonprofit based in South Bend, maintained the TPRs are not medical records and can be released because they do not include the patients’ names or Social Security numbers. The attorneys for the Indiana Department of Health countered the reports are medical records because of the amount of patient information they contain.

  

  Also present at the hearing was Kathrine Jack, an attorney representing Caitlin Bernard and Caroline Rouse, two Indianapolis OB/GYNs who have intervened in the case. Jack told the court the doctors were aligned with the health department in the case but had taken no position on the motion to dismiss.

  The hearing lasted roughly 25 minutes, with Oakes asking few questions and allowing the attorneys to present their arguments. Several visitors crowded into the small courtroom, filling and overflowing the two benches in the gallery. At one point, Oakes stopped the proceeding to get more chairs for people, including one man with an infant, standing by the door.

  Oakes put a pair of bookends around the hearing, which offered some perspective. He opened the proceeding by confirming with the attorneys that the case will be a “three-stop train,” meaning his ruling will be contested to the Court of Appeals of Indiana and then to the Indiana Supreme Court.

  Then he concluded the hearing by asking each side what risk their clients faced if he ruled against them. What is the risk in this “three-stop train,” he asked, if his decision was contrary to their respective clients’ interests?

  Patrick Gillen, Thomas More Society senior counsel representing Voices for Life, replied that the risk for his clients would be having to turn to the “sausage-making” process of the Indiana General Assembly to “vindicate their right” to access the TPRs. Going through the legislature to change the statute would not be quick or certain, he said, and might not be an option, since the Statehouse might choose to wait for the judicial system to resolve the dispute.

  Oakes interjected that he did not know of a time when the legislature ever let the judiciary process conclude before taking action.

  Ryan Shouse, a Lewis and Wilkins associate attorney representing the health department, said ordering the release of the TPRs would essentially be releasing medical records. He reiterated his argument that with so few abortions being performed in the state, the reports could be “reversed engineered” to identify the women, giving the public a “wealth of information” about the patients.

  Gillen dismissed the “reverse engineering” argument, saying the potential for discovering the identities of the women was “remote and speculative.” If the health department is not happy with the statute, he said, the answer is not to reclassify the TPRs or to follow the opinion of the Indiana public access counselor, which found the reports are private medical records, but to instead go to the legislature for the fix.

  Jack said a ruling in favor of Voices for Life would create the risk of uncertainty for her physician clients. Health-care providers are obligated by state law and professional ethics to keep patient information confidential.

  At the conclusion of the hearing, Oakes said the case posed an interesting statutory question. He complimented the attorneys on the briefs they had submitted and said he would issue his ruling soon.

  Patient privacy versus public concern

  After the health department stopped releasing the TPRs and switched to publishing a less specific quarterly report of the aggregated data from TPRs, Indiana Attorney General Todd Rokita weighed in on the matter. He issued an opinion in April, asserting that the TPRs were pubic records and, at a news conference, said anyone who was denied access could sue the health department. Rokita’s comments at that news conference have led to a third known disciplinary investigation into his conduct since he was elected attorney general in 2020.

  Less than a month after Rokita’s public statements, Voices for Life filed a lawsuit for access to the TPRs in Marion County Superior Court. The nonprofit argued the health department was violating Indiana’s Access to Public Records Act and, echoing Rokita, said without access to the reports, the attorney general’s office would be unable to enforce the state’s new abortion law.

  In response to Voices for Life’s complaint, the health department filed a motion to dismiss. The health department argued in its motion that the TPRs contain the three elements which define “medical record” in Indiana statute: They are written or printed; in the possession of a health-care provider; and concern the diagnosis, treatment or prognosis of the patient. Also, the department highlighted the amount of information in a TPR, which includes the patient’s age, county and state of residence, marital status, educational level, race, ethnicity, the health-care provider’s name and address, date and facility location where the abortion was performed, reason for the abortion, age of the fetus, and whether the procedure was a surgical or medication abortion.

  Noting Indiana’s Access to Public Records Act exempts from disclosure patient medical records, the health department argued, “This common sense, unambiguous exemption protects individuals’ health information. The legislature intended to protect from disclosure records that include detailed aspects of a patient’s past, and current, medical care. The medical information contained in a TPR falls squarely under this umbrella.”

  Voices for Life countered in its court brief that the TPR “cannot reasonably be considered a medical record.” In particular, the medical data in the TPR is “de-linked from the patient” because it does not include any “unique identifier,” such as the patient’s name, address or Social Security number.

  Moreover, Voices for Life continued, the TPRs are a “vital enforcement tool” to ensure the health-care professionals are following state law when providing abortion care.

  “Recognizing that TPRs are ‘public records’  … advances the statutory purpose of (the Access to Public Records Act) by giving the citizens of Indiana access to the information they need to determine whether public officials are enforcing the laws that the citizens of Indiana have enacted,” Voices for Life argued.

  “Allowing public access to TPRs also furthers the purposes of APRA by providing private citizens, including Voices For Life, with information needed to assist in a regulatory goal of ensuring healthcare providers comply with Indiana laws regulating abortion and also, whether the IDOH and the Attorney General, who have regulatory authority, are exercising it properly by enforcing the law.”

  This article was published by TheStatehouseFile.com through a partnership with The Indiana Citizen, a non-profit platform dedicated to increasing the number of informed, engaged Hoosier citizens.

  Indiana Citizen Editor Marilyn Odendahl has spent her journalism career writing for newspapers and magazines in Indiana and Kentucky. She has focused her reporting on business, the law and poverty issues.