Judge blocks Indiana from releasing abortion records — for now

A Marion County judge has temporarily barred the Indiana Department of Health from publicly releasing abortion records — known as terminated pregnancy reports — siding with physicians who argued the disclosures would violate patient privacy. 

The temporary restraining order issued on Feb. 19 will last for 10 days, unless it is extended for good cause. 

A terminated pregnancy report (TPR) includes detailed information about a patient's demographics, medical history, and medical care. Indiana law mandates that physicians submit a TPR to the Indiana Department of Health for every abortion performed.

The reports in question, which the defendants — the anti-abortion group Voices for Life and the Indiana State Health Commissioner — seek to have publicly released, would have certain details redacted, such as the names of patients who received abortions. However, the reports could still include identifying information about the provider, the gestational age of the fetus, and whether the pregnancy resulted from rape or incest.

Indiana OB-GYNs Dr. Caitlin Bernard and Dr. Caroline Rouse filed for a temporary restraining order asserting that releasing abortion records could cause irreparable harm to both doctors and patients. In their court filing, they argued that public disclosure of these reports could expose sensitive medical information and undermine physician-patient confidentiality. 

In the ruling, Marion County Superior Court Judge James Joven agreed. 

In his argument, he weighed the difficult position abortion providers would be put in if terminanted pregnancy reports were released publicly. In that situation, he argued that they would have to choose between serving as a “conduit of private patient health information to the public, or facing criminal penalties for failing to submit TPRs to the Department.” 

“This creates a Catch-22 situation for the Plaintiffs,” Judge Joven wrote. 

Following the ruling, Dr. Bernard and Dr. Rouse issued a joint statement applauding the decision as a safeguard for patient privacy.

 “We hope that the court will continue to prevent the unnecessary release of people’s personal health information, which puts both physicians and patients in jeopardy for simply providing and receiving needed healthcare,” the physicians wrote in a joint statement.

Indiana is under a near-total abortion ban after the state Supreme Court ruled in 2023 that the ban does not violate the state’s Constitution. 

This latest decision to temporarily block the public release of the terminated pregnancy reports would still allow the state to release aggregated quarterly reports of abortions.

Just 45 legal abortions took place in Indiana in the first quarter of 2024, a drop of from an average of 2,130 abortions during the same time period between 2020 and 2023, according to a May 2024 report from ISDH.

The Feb. 19 decision also helped temporarily settle a strong point of contention: whether terminated pregnancy reports are medical records. Judge Joven agreed with the state’s Public Access Counselor Luke Britt that the reports are medical records, which exempt them from disclosure under the state’s public records law. 

In an opinion issued in December of 2023, Britt argued that the creation of the terminated pregnancy report form is a direct consequence of a medical service, and without the provider-patient relationship, the form would not exist. 

Tanya Pellegrini is a senior attorney with the pro-abortion rights legal group The Lawyering Project, which is representing the doctors. She said deciding to have an abortion is already difficult even without the added fear that private medical information could be made public.

“It will have a big chilling effect,” Pellegrini said about the potential release of the records. “If patients worry that their doctor will have to turn over all this information to the state, and then it ends up in the hands of anti-abortion groups to post online or use however they want, it could have serious consequences.”

Indiana’s Attorney General Todd Rokita has advocated for the release of the abortion reports, arguing they include some information that his office would need to hold providers accountable if they break the law.

But Katherine Jack, the attorney for the plaintiffs, argued during a Feb. 11 hearing that releasing the records is a decision that can’t be taken back.

“The bell cannot be unrung,” Jack said. 

Farrah Anderson is an Investigative Health Reporter at WFYI and Side Effects Public Media. Contact her at fanderson@wfyi.org. Follow her on X @farrahsoa.