After Dobbs

Kathleen DeLaney knew the reversal of Roe v. Wade in June 2022 would have unforeseen consequences. But she didn’t anticipate the high court’s decision would almost immediately land IU Health obstetrician-gynecologist Caitlin Bernard at her doorstep, jeopardizing the doctor’s medical license and launching an emotionally charged national discussion around abortion and women’s health.

In the week after the decision came down, The Indianapolis Star published comments attributed to Bernard during a local abortion rights rally at IU, where she’s also a School of Medicine professor. She shared a patient anecdote, keeping the details minimal, to emphasize how removing federally protected abortion access was already affecting care delivery: In the days after the ruling, an Ohio physician called her about a 10-year-old child abuse victim who was barely past the state’s newly implemented “heartbeat law,” which banned abortions after six weeks of pregnancy. Could Bernard see the girl if she came to Indiana?

“She gave an example in a deidentified way, without naming the patient, the city or county of residence, or any details that HIPAA (Health Insurance Portability and Accountability Act) prohibits,” says DeLaney. “The termination of pregnancy report—which she timely filed with the state department of health and is available to the public—requires far more information than what she told the reporter.”

Still, her comments added fuel to an already tense controversy. “Right away, both state’s attorneys general and an Ohio representative went on record making accusations that Bernard fabricated the story, violated patient confidentiality and didn’t follow reporting requirements,” she says. “Indiana AG Todd Rokita even claimed she was an abortion activist acting as a doctor.”

DeLaney issued a cease-and-desist for Rokita to stop the stream of misconduct accusations. In short order, he announced publicly an investigation into consumer complaints received about Bernard. “Only one was from an Indiana consumer, and none were from patients or anyone who had ever met her,” Delaney says. Rokita’s office denied a subsequent notice of tort claim against him for defamatory statements.

With media coverage reaching a fever pitch, harassment and threats toward the doctor and her family grew. A kidnapping threat against her child in 2020 got the FBI involved, and the family remained on high alert and was assigned security. Despite the hostility, the public was overwhelmingly supportive, says DeLaney, with people from as far as Africa and New Zealand sending well-wishes and contributing to Bernard’s legal defense fund.

By fall, the case continued to garner headlines nationwide. Rokita attempted to subpoena the medical records of the rape victim as well as other patients who had received abortion care from Bernard and her colleague Dr. Amy Caldwell. An emergency motion to prevent the disclosures was filed, and a Marion County judge later ruled the records remain sealed.

The irony wasn’t lost on DeLaney. “He’s claiming she violated patient confidentiality, but then he’s asking for the most personal private information about a minor that you could imagine—it’s just outrageous, in my opinion,” she says.

She filed a preliminary injunction seeking to halt the AG’s consumer complaints investigation. Although the judge found that Rokita violated statutory confidentiality requirements in airing the grievances, the injunction was denied after Rokita submitted an administrative complaint against Bernard to the state’s medical licensing board. “This terminated the judge’s jurisdiction over the case, so it basically was a tactic to move the dispute out of the court,” she says.

Last May, the licensing board determined Bernard appropriately reported the abuse but failed to safeguard the patient’s privacy. Her license was not revoked or suspended, but she was issued a letter of reprimand and a $3,000 fine. The AG’s office denied a second tort claim that same month. “I feel it’s frustrating to watch an elected official, who’s duty bound to do a job for the citizens of the state, go off the rails, demonizing my client and weaponizing licensing authority for political gain,” says DeLaney.

Late last summer, just when things were calming down, Rokita filed a federal lawsuit against IU Health, which had previously found no wrongdoing on its employee’s part. The complaint mentions the OB-GYN dozens of times and alleges the state’s largest hospital system violated HIPAA by failing to protect the minor’s information. A few months later, the Indiana Supreme Court Disciplinary Commission reprimanded Rokita, citing professional misconduct for statements he made to the media about Bernard.

As DeLaney considers further legal action—the statute of limitations runs until July—she hopes her colleagues take note. “We have an obligation to inform ourselves and the public about laws’ consequences, including the unintended and negative ones that can occur,” she says. “There could be more laws like that in the very near future.”