By Casey Smith
Indiana Capital Chronicle

INDIANAPOLIS — Legal counsel for Indiana Attorney Todd Rokita maintained in Marion County Circuit Court Tuesday, April 11, that a lawsuit filed by Indianapolis OB-GYN Dr. Caitlin Bernard should be reopened, allowing Rokita to challenge and correct “errors” in a previous ruling.

His attorney argued that Rokita “suffers prejudice” from an earlier judge’s “erroneous” and unnecessary conclusion” that the attorney general violated the state licensing statute’s confidentiality provision when he disclosed his office was investigating Bernard.

Lawyers for Bernard held that Rokita wants to reopen the suit to re-litigate “a single issue,” even though he already prevailed in the case when a judge denied an injunction request by Bernard.

The matter stems from an ongoing legal saga surrounding Bernard, who last year oversaw a medication abortion for a 10-year-old rape victim from Ohio.

Bernard sued to stop Rokita’s office from obtaining certain patient records related to her care for the 10-year-old, who sought an abortion in Indiana after her pregnancy progressed beyond the 6-week cutoff in Ohio.

Bernard’s legal team voluntarily dismissed the caseafter it transitioned to an administrative licensing action before the Indiana Medical Licensing Board, scheduled to be heard next month. The court officially dismissed the case Nov. 12.

But Rokita filed to reopen it Jan. 9 to refute the superior court judge’s finding that he violated state confidentiality laws.

A court ruling from that case said that Rokita violated the law during a televised appearance in which he called the healthcare provider an “abortion activist acting as a doctor.” In court filings, Rokita called the judge’s order an “erroneous finding.”

Circuit Court Judge Amber Collins-Gebrehiwet said she will only consider whether to reopen Bernard’s case. If she decides in Rokita’s favor, Collins-Gebrehiwet said debate over a motion to “reconsider and correct error” should be heard by Marion County Superior Court Judge Heather Welch, who made that ruling.

Collins-Gebrehiwet said she likely won’t issue a ruling for several weeks, however.

Should Bernard’s Case Be Reopened?

The voluntary dismissal filing from Bernard’s legal team came after Welch’s refusal to grant a preliminary injunction, meaning “that notice was improper and may be stricken under Indiana authorities,” said Christopher Bartolomucci, who represents Rokita.

Bartolomucci works for Washington, D.C.-based Schaerr Jaffe law firm that was also hired by Rokita’s office to help litigate a medical licensing case against Bernard.

The firm is also representing Rokita while he’s under investigation by the Indiana Supreme Court Disciplinary Commission.

Bartolomucci contended in court that Welch’s conclusion about Rokita “was an error, and on top of that, was unnecessary.”

He said the Republican attorney general’s inability to challenge the assertion that he violated the law “prejudices” him in three ways.

Bartolomucci said Bernard is making “offensive use” of Welch’s finding in the Medical Licensing Board case — the doctor is using the conclusion as part of her defense to the charges raised in that proceeding — and Rokita should be able to challenge it in court.

“Dr. Bernard is not treating that order as part of a case that never existed … they’re using it as gospel,” Bartolomucci said.

“It’s no small finding,” he continued, referring to Welch’s legal conclusion.

Bernard has additionally presented the attorney general with a tort claim notice, That filing could precede a defamation suit against Rokita. Bartolomucci said Welch’s conclusion could have “persuasive value” in those legal matters.

Rokita’s counsel emphasized, too, that the superior court’s finding “undermines public confidence.”

“The attorney general took an oath to uphold the law and follow the law in Indiana, and we certainly think he did so here,” Bartolomucci said.

David Weiner, representing Bernard, said the doctor’s case was dismissed “because there’s no ongoing dispute.” He pointed out that Rokita has already filed a complaint against the doctor with the Medical Licensing Board.

“The court was correct in its decision to close the case,” Weiner said, adding that Rokita “already had the opportunity to litigate this issue” in proceedings that played out before the court.

The attorney general chose to file the licensing board complaint before Welch opined that Rokita caused Bernard “irreparable harm,” which Weiner said “made it so the court could not provide relief to the plaintiffs.”

Weiner further argued that Rokita continues to have the ability to dispute Welch’s conclusion in the other ongoing proceedings.

What Happens Next

Bernard is scheduled to appear May 25 before the Indiana Medical Licensing Board. A pre-hearing conference is set for April 27.

In the latest filings with the state licensing board, Bernard continues to maintain that her public comments about the 10-year-old’s case were within the bounds of medical privacy rules. She also argues that she “could not” have knowingly violated Indiana’s child abuse reporting law because her notification to authorities was consistent with policies in place at IU Health, where she practices.

Collins-Gebrehiwet will accept and review briefs from counsel for both parties as she contemplates whether to reopen the case.

If Rokita’s request is granted, he does not intend to engage in “large” additional litigation, Bartolomucci said. Rather, the attorney general “would be fine” with “correcting this error” and dismissing the case after that.

“This entire issue started when a doctor violated patient privacy by sharing confidential information at a political event and failed to report — according to Indiana law — so that she was not returned to an environment of the perpetrator,” a spokesperson for the attorney general’s office said after Tuesday’s court hearing, reading from a prepared statement. “Those issues are currently under consideration by the Indiana Medical Licensing Board, and today’s proceeding is all about ensuring that the board can make its decision free from an unwarranted conclusion previously made by this court. That is why we are asking the court to vacate that conclusion. We look forward to the judge final ruling on this case.”

Indiana’s General Assembly passed a near-total abortion ban in a special legislation session over the summer – with proponents citing the 10-year-old’s case as a reason to include exemptions for rape and incest.

But two separate judges granted injunctions temporarily blocking the ban. The Indiana Supreme Court elected to hear the case themselves in January. It’s not clear when the justices will make their ruling.