Reprimanding Caitlin Bernard for speaking out could have far-reaching chilling effects.
The case of a 10-year-old Ohio rape victim who sought an abortion in Indiana just after the US Supreme Court overturned Roe v. Wade last year became a major flashpoint in the political debate. On Thursday, her doctor was reprimanded and fined for discussing the case — and physicians worry that it will have a chilling effect on any kind of patient advocacy that conflicts with the political agenda of state lawmakers.
The Indiana medical board found that Caitlin Bernard, an OB-GYN, violated patient privacy laws in publicly disclosing that she had performed the abortion without the consent of the patient or their parents, even though she never named the patient and only provided a general outline of the case, as doctors typically do when performing health advocacy. She will be fined $3,000 and issued a letter of reprimand, but will be allowed to keep her medical license.
It’s the result of Indiana Republican Attorney General Todd Rokita, who is running for reelection in 2024, filing a complaint against Bernard last year, also claiming that she was unfit to practice because she had not stayed “abreast of current professional theory or practice.” Bernard’s lawyer previously characterized the complaint as an attempt to intimidate abortion providers.
The fact that Bernard is facing professional consequences suggests that there is a legal gray area when talking about patients in an advocacy context, even beyond the subject of abortion, that is ripe for exploitation by political actors. Dr. Tracey Wilkinson, a professor of pediatrics at Indiana University School of Medicine who attended Bernard’s hearing before the medical board Thursday, told Vox there was a long debate as to whether Bernard had disclosed identifiable information about the patient and witnesses who argued to the contrary.
She said her colleagues around the country were “shocked and devastated” by the ultimate decision, which showed that “politicization can really prevent us from being able to do our job.”
“All of us have an ethical duty to do advocacy,” Wilkinson said. “This got so far because this was about abortion, but we’ve now set the precedent and opened the floodgates to any clinician doing their job and having their medical license put on the line.”
What happened in the Indiana case
The 10-year-old patient sought an abortion from Bernard in Indiana just days after Roe fell last June because she could not obtain one in her home state. Ohio had a trigger ban prohibiting abortions after six weeks of pregnancy, before most people know they’re pregnant, and she had been pregnant for six weeks and three days. (That ban has since been put on hold by the courts, but could go into effect again.)
The story, initially reported by the Indianapolis Star, went viral. President Joe Biden mentioned the case in remarks at the White House last July: “Ten years old — 10 years old! — raped, six weeks pregnant, already traumatized, was forced to travel to another state.” News outlets, however, questioned whether the case was real, given that the Star had relied on Bernard’s account alone. Right-wing politicians, including South Dakota Gov. Kristi Noem, called it “#FakeNews.”
The story was confirmed when 27-year-old Gerson Fuentes was charged in Franklin County, Ohio, after confessing to raping the girl on at least two occasions. He later pleaded not guilty to the charges. His trial will continue in July.
How doctors have struggled to navigate the legal landscape post-Roe
Bernard’s case before the medical licensing board was unusual because it became a front in the national political battle over abortion. Rarely if ever does a state’s top prosecutor get involved in medical licensing board hearings, and they generally concern cases where there is a bad patient outcome, which didn’t happen here.
“The outcome of the care that Dr. Bernard gave was exactly what she always does, which was compassionate, comprehensive health care,” Wilkinson said.
Rather, the case concerned her violations of guidelines of the Health Insurance Portability and Accountability Act, known as HIPAA, which specifically mandates that identifiers such as name, date of birth, and address be protected, but also prohibits the disclosure of any unique identifier. Bernard only disclosed the age of the girl and her state of residence, but her hearing focused on whether that could have been considered identifiable information. Her employer, Indiana University Health, concluded last year that she had not committed a HIPAA violation, but the medical board found the opposite.
The decision to punish Bernard has left physicians across the country “afraid of getting in the crosshairs of politicians in their state and feeling that they could be next,” she said. That applies in the context of abortion, but also when it comes to bans on gender-affirming care for trans kids.
It’s exacerbating anxieties that physicians were already feeling in terms of navigating the patchwork of laws across the US post-Roe, many of which include very limited exceptions to abortion bans that in practice discourage doctors from administering medically necessary care. And that makes it all the more difficult for doctors to perform their duty to advocate for change beyond the walls of the medical system.
“I do a lot of advocacy. And I’m not going to stop as a result of this hearing,” Wilkinson said. “But that’s why this is such a dangerous precedent.”