An Indiana doctor has been fined $3,000 for speaking out after she performed an abortion on a 10-year-old Ohio girl who had been raped and was unable to obtain the procedure in her own state after the repealing of Roe v. Wade.
Dr Caitlin Bernard was not fined for the procedure itself but for publicly talking about the case in media – with the state’s Republican deputy attorney general accusing her of being ‘brazen in pursuit of (her) own agenda’.
The case became a flashpoint following the June 24, 2022, decision by the Supreme Court to revoke the 50-year-old law.
Ohio’s near-total abortion ban immediately went into effect and banned all abortions after the sixth week of pregnancy, before most people even know they are pregnant.
Abortion is legal in Indiana, up until 21 weeks and six days. An Indiana law that completely banned abortion in Indiana was enacted on September 15 but is being challenged in the courts and it is currently not in effect.
On Thursday, Bernard broke down in tears as she was told that she would not lose her medical license.
Dr Caitlin Bernard on Thursday was fined $3,000 for performing the abortion on the 10-year-old rape victim from Ohio, and then talking publicly about it
Indiana’s attorney general, Todd Rokita, is fiercely pro life and called Bernard an ‘abortion activist acting as a doctor’
But the state Medical Licensing Board voted that she did not abide by privacy laws by telling a newspaper reporter about the girl’s treatment.
The board, however, rejected accusations from Indiana’s Republican attorney general that Bernard violated state law by not reporting the child abuse to Indiana authorities.
Board members chose to fine Bernard $3,000 for the violations, turning down a request from the attorney general’s office to suspend Bernard’s license.
She was also issued a letter of reprimand.
Bernard did not lose or have her medical license suspended by the board.
Bernard has consistently defended her actions, and she told the board on Thursday that she followed Indiana’s reporting requirements and hospital policy by notifying hospital social workers about the child abuse – and that the girl’s rape was already being investigated by Ohio authorities.
Bernard’s lawyers also said she did not release any identifying information about the girl that would break privacy laws.
The Indianapolis Star cited the girl’s case in a July 1 article that sparked a national political uproar in the weeks after the U.S. Supreme Court overturned Roe v. Wade last summer.
Some news outlets and Republican politicians falsely suggested Bernard fabricated the story, until a 27-year-old man was charged with the rape in Columbus, Ohio.
During an event at the White House, President Joe Biden nearly shouted his outrage over the case.
Bernard, left, sits between attorneys John Hoover and Alice Morical on Thursday before a hearing in front of the state medical board in Indianapolis
The state medical board convenes on Thursday in downtown Indianapolis to hear Bernard’s case before finding Bernard $3,000 for talking about the case
Dr Tracey Wilkinson, left, a pediatric doctor with IU School of Medicine, and Dr Caroline E. Rouse, a maternal fetal medicine doctor with IU School of Medicine, line up outside of a conference room to support Bernard on Thursday
Bernard tweeted last year, amid the frenzy of publicity, that doctors ‘must be able to give people the medical care they need’
Board President Dr. John Strobel said he believed Bernard went too far in telling a reporter about the girl’s pending abortion and that physicians need to be careful about observing patient privacy.
‘I don’t think she expected this to go viral,’ Strobel said of Bernard.
‘I don’t think she expected this attention to be brought to this patient. It did. It happened.’
Bernard’s lawyer Alice Morical told the board the doctor reported child abuse of patients many times a year and that a hospital social worker had confirmed with Ohio child protection staffers that it was safe for the girl to leave with her mother.
‘Dr Bernard could not have anticipated the atypical and intense scrutiny that this story received,’ Morical said.
‘She did not expect that politicians would say that she made the story up.’
Indiana Attorney General Todd Rokita’s complaint asked the licensing board to impose ‘appropriate disciplinary action’, but did not specify a requested penalty.
Amid the wave of attention to the girl’s case last summer, Rokita, who is stridently anti-abortion, told Fox News he would investigate Bernard’s actions and called her an ‘abortion activist acting as a doctor.’
Rokita said that he wanted the licensing board to impose ‘appropriate disciplinary action’
Bernard insisted that she acted in the best interests of the child, and did not report the rape to the Indiana authorities as the case was already being investigated in the girl’s home state of Ohio
Deputy Attorney General Cory Voight argued on Thursday that the board needed to address what he called an ‘egregious violation’ of patient privacy and Bernard’s failure to notify Indiana’s Department of Child Services and police about the rape.
‘There’s been no case like this before the board,’ Voight said.
‘No physician has been as brazen in pursuit of their own agenda.’
Voight asked Bernard why she discussed the Ohio girl’s case with the newspaper reporter and later in other news media interviews rather than using a hypothetical situation.
‘I think that it’s incredibly important for people to understand the real-world impacts of the laws of this country about abortion,’ Bernard said.
‘I think it’s important for people to know what patients will have to go through because of legislation that is being passed, and a hypothetical does not make that impact.’
During the hearing, Rokita’s office kept up a running commentary on its official Twitter account, with one post saying: ‘When Bernard talked about the high priority she puts on legislation and speaking to the public, she did so at the expense of her own patient.
‘This shows where her priorities are as an activist rather than a doctor.’
Bernard objected to Voight saying her choice to publicly discuss the case led to the misconduct allegations.
‘I think if the attorney general, Todd Rokita, had not chosen to make this his political stunt we wouldn’t be here today,’ Bernard said.
Lawyers for the attorney general’s office repeatedly raised questions about whether the policy of Bernard’s employer, Indiana University Health, to report suspected child abuse to authorities in the state where the abuse occurred complied with Indiana law.
Officials of IU Health, which is the state’s largest hospital system, testified that the Indiana Department of Child Services has never objected before to the hospital policy.
The Indiana board – with five doctors and one attorney present who were appointed or reappointed by Republican Governor Eric Holcomb – had wide latitude under state law allowing it to issue reprimand letters or suspend, revoke or place on probation a doctor’s license.
Rotika tweeted after the hearing: ‘Thanks to my amazing team, the abortion doctor got the maximum civil fine for violating three counts of privacy laws and received a public reprimand to go into a national database.’
Rotika said he was pleased that Bernard received ‘the maximum civil fine’ after Thursday’s hearing
Ohio’s law imposing a near-ban on abortion was in effect for about two months before being put on hold as a lawsuit against it plays out.
Indiana’s Republican-dominated Legislature approved a statewide abortion ban weeks after the Ohio girl’s case drew attention, but abortions have continued to be permitted in the state while awaiting an Indiana Supreme Court decision on the ban’s constitutionality.
Bernard unsuccessfully tried to block Rokita’s investigation last fall, although an Indianapolis judge wrote that Rokita made ‘clearly unlawful breaches’ of state confidentiality laws with his public comments about investigating the doctor before filing the medical licensing complaint against her.
Twenty-four states have passed or attempted to pass restrictions on abortion since Roe v. Wade was overturned last year.
Roe v. Wade: The landmark 1973 Supreme Court decision that legalized abortion in America
In 1973, the United States Supreme Court recognized a woman’s constitutional right to an abortion in Roe v. Wade. The landmark ruling legalized abortion nationwide but divided public opinion and has been under attack ever since.
The case was filed in 1971 by Norma McCorvey, a 22-year-old living in Texas, who was unmarried and seeking a termination of her unwanted pregnancy.
Because of state legislation preventing abortions unless the mother’s life was at risk, she was unable to undergo the procedure in a safe and legal environment.
So McCorvey sued Henry Wade, the Dallas county district attorney, in 1970. The case went on to the Supreme Court, under the filing Roe v. Wade, to protect McCorvey’s privacy.
Supreme Court Decision
The Supreme Court handed down the watershed 7-2 decision that a woman’s right to make her own medical decisions, including the choice to have an abortion, is protected under the 14th Amendment.
In particular, that the Due Process Clause of the the 14th Amendment provides a fundamental ‘right to privacy’ that protects a woman’s liberty to choose whether or not to have an abortion.
…nor shall any state deprive any person of life, liberty, or property, without due process of law
The landmark ruling saw abortions decriminalized in 46 states, but under certain conditions which individual states could decide. For example, states could decide whether abortions were allowed only during the first and second trimester but not the third (typically beyond 28 weeks).
Among pro-choice campaigners, the decision was hailed as a victory which would mean fewer women would become seriously – or even fatally – ill from abortions carried out by unqualified or unlicensed practitioners. Moreover, the freedom of choice was considered a significant step in the equality fight for women in the country. Victims of rape or incest would be able to have the pregnancy terminated and not feel coerced into motherhood.
Pro-lifers contended it was tantamount to murder and that every life, no matter how it was conceived, is precious. Though the decision has never been overturned, anti-abortionists have prompted hundreds of states laws since then narrowing the scope of the ruling.
One such was the Partial-Birth Abortion Ban Act signed by President George W. Bush in 2003, which banned a procedure used to perform second-trimester abortions.
McCorvey lived a quiet life until the 1980s, when she revealed herself to be Jane Roe
Norma McCorvey (Jane Roe)
Following the ruling, McCorvey lived a quiet life until the 1980s, when she revealed herself to be Jane Roe. McCorvey became a leading, outspoken pro-abortion voice in American discourse, even working at a women’s clinic where abortions were performed.
She performed an unlikely U-turn in 1995, becoming a born again Christian and began traveling the country speaking out against the procedure.
In 2003, she filed a motion to overturn her original 1973 ruling with the US district court in Dallas. The motion moved through the courts until it was ultimately denied by the Supreme Court in 2005.
McCorvey died at an assisted living home in Texas in February 2017, aged 69.
‘The Heartbeat bill’
Multiple governors have signed legislation outlawing abortion if a doctor can detect a so-called ‘fetal heartbeat,’ part of a concerted effort to restrict abortion rights in states across the country.
Under the ban, doctors will be prosecuted for flouting the rules.
Abortion-rights supporters see the ‘heartbeat bills’ as virtual bans because ‘fetal heartbeats’ can be detected as early as six weeks, when women may not even be aware they’re pregnant.
Anti-abortion campaigners have intensified their efforts since former President Donald Trump appointed two conservative justices to the US Supreme Court, hopeful they can convince the right-leaning court to re-examine Roe v. Wade.
Georgia, Ohio, Missouri and Louisiana have enacted ‘heartbeat laws’ recently, and Alabama passed an even more restrictive version in May, amounting to a near-total ban on abortion from the moment of conception. Other states have similar legislation pending.
Similar laws has also been passed in Arkansas, Mississippi, North Dakota, Iowa and Kentucky, though they have been blocked by courts from going into effect as legal challenges have been brought against them.