Indiana's AG could face a lawsuit by the abortion provider for 10-year-old rape victim

Sarah McCammon - NPR

An Indiana doctor who provided an abortion for a 10-year-old abuse victim from Ohio is taking a key step toward a possible defamation lawsuit against Indiana's Republican attorney general, Todd Rokita.

"He is wrongly accusing her of misconduct in her profession, so we want that smear campaign to stop," attorney Kathleen DeLaney said in an interview Tuesday with NPR. "We want him and his office to stop intimidating and harassing healthcare providers generally who are simply doing the job that they went to medical school to do."

In a letter sent to Rokita and other Indiana state officials on Tuesday, Bernard's attorney says she believes her client has suffered harm as a result of Rokita's recent public statements about Bernard and her work as an abortion provider, after she spoke publicly about caring for the 10-year-old patient.

"Statements that Dr. Bernard has a 'history of failing to report,' which Mr. Rokita indicated would constitute a crime, made in the absence of reasonable investigation, serve no legitimate law enforcement purpose. Given the current political atmosphere in the United States, Mr. Rokita's comments were intended to heighten public condemnation of Dr. Bernard, who legally provided legitimate medical care," the letter reads, in part.

Rokita's office did not immediately respond to a request for comment on the letter.

The story became the focus of national attention following the June 24 U.S. Supreme Court decision overturning Roe v. Wade, which allowed Ohio's six-week abortion ban to take effect. Rokita was among prominent conservatives who questioned the veracity of the account that Bernard gave to The Indianapolis Star in a story about patients crossing state lines.

After a 27-year-old man was arraigned on charges of rape against the 10-year-old girl in Franklin County, Ohio, on July 13, Rokita called for an investigation of Bernard. In a Fox News interview that day, Rokita claimed without producing evidence that Bernard had a "history of failing to report" abortions as required under Indiana law.

The next day, Indiana health officials released a document in response to records requests from NPR and other media that appeared to contradict Rokita's claim, demonstrating that Bernard had reported the procedure on July 2. In that report, Bernard said she'd provided a medication abortion to a 10-year-old abuse victim on June 30, who was approximately six weeks pregnant.

Indiana University Health, which employs Bernard, has also said it conducted a review and determined she had not violated any privacy laws.

The document newly filed by Bernard's attorney, called a tort claim notice, is required by state law before Bernard could file a defamation suit against Rokita. In it, DeLaney says she intends to seek damages from the state for "security costs, legal fees, reputational harm, and emotional distress" in an amount yet to be determined. State officials have 90 days to respond.

In the letter, DeLaney also notes that Rokita has limited authority to investigate complaints against certain professionals, including physicians, and that state law requires him to "maintain the confidentiality of such complaints" unless he intends to prosecute. It states that as of July 13, Bernard's license in Indiana was "active with no disciplinary history."

A county prosecutor in the Indianapolis area, where Bernard works, said in an Associated Press report that he believes he has sole authority to investigate in such circumstances, and that Bernard was being "subjected to intimidation and bullying."

Last week, Bernard's attorney also sent a "cease and desist" letter to Rokita asking him to stop making what she describes as defamatory statements. In response, Rokita spokeswoman Kelly Stevenson told NPR in an email that, "Like any correspondence, it will be reviewed if and when it arrives. Regardless, no false or misleading statements have been made."

DeLaney said her office has not received any communication from Rokita indicating that an investigation into Bernard is underway. She said Rokita and his staff have continued to make false statements online and in the press about Bernard.