IDOH to withhold individual terminated pregnancy reports

by Whitney Downard, Indiana Capital Chronicle

The Indiana Department of Health (IDOH) will no longer release individual terminated pregnancy reports following the state’s near-total abortion ban, which sharply curtailed reproductive health care access. It will still release aggregated reports.

For the third quarter of 2023, which covers July through September, IDOH reported 764 abortions but only 17 of those occurred after the abortion ban went into effect in late August.

Due to the small number and increased reporting requirements, the agency had concerns about violating patient confidentiality by releasing full individual records — government agencies frequently suppress reporting on small groups to ensure that impacted people can’t be identified. Following the ban’s passage in 2022, terminated pregnancy reports must include demographic data and patient medical history.

IDOH sought an informal opinion from Public Access Counselor Luke Britt about releasing the information. Britt, who first took the position under former Indiana Gov. Mike Pence, makes rulings related to public access laws for state departments and advises on open door violations for the public.

“Given that the report is populated with information that could be reverse engineered to identify patients — especially in smaller communities — (IDOH argues) that the required quarterly reports should suffice in terms of satisfying any disclosure and transparency considerations,” the December informal opinion said.

“This office agrees,” it concluded.

The records, created by doctors, fall under the provider-patient relationship, Britt ruled.

“It follows that IDOH should treat the form with the same confidentiality considerations as any other patient medical record,” Britt said.

Britt said that even the law seemed to allow this by specifying that IDOH “compile a public report” and “implicitly … (suggesting) the individual forms are non-public.”

This aligns with a recent ruling from the Indiana Medical Licensing Board that disclosing “even partial and seemingly non-identifiable information by medical providers can lead to legal consequences.”

He cites the case of Dr. Caitlin Bernard, who provided an abortion to a 10-year-old rape victim. She revealed the age and home state of the victim to a reporter from the IndyStar and the licensing board found she had violated patient privacy laws. She received a reprimand and a $3,000 fine.

That case was pushed by Attorney General Todd Rokita, who is facing his own battle with the Supreme Court Disciplinary Commission related to his public comments about Bernard.

But Rokita’s predecessor and gubernatorial candidate Curtis Hill disagrees, saying “records providing non-identifying patient information, provider details and reasons” should be public. Most of the Hoosiers seeking abortions following the ban get an abortion under the ban’s exception for a fatal fetal anomaly, according to previous terminated pregnancy reports (TPRs).

Anti-abortion groups have used the reports in the past to identify doctors and file complaints.

“The IDOH’s ‘new’ position that TPRs are “confidential medical records” comes out of nowhere and directly contradicts the previous treatment of TPRs,” Hill said. “The IDOH is a bloated bureaucracy trying to avoid scrutiny for its lack of oversight of abortion providers and procedures. The idea that data could be “reverse engineered” to identify a patient is no more true now than it was before the passage of SB1 and is simply a cooked-up scheme to hide transparency.”

He called on Gov. Eric Holcomb, who he hopes to succeed, to “reign in his rogue health department” and “demand that his agency fall in line with state law.”