INDIANAPOLIS — The Disciplinary Commission of the Indiana Supreme Court has filed a disciplinary complaint against Indiana Attorney General Todd Rokita in relation to comments he made to media outlets and other public statements he made between July 2022 and September 2022 surrounding an investigation into Dr. Caitlin Bernard.
According to documents filed Monday, the commission claimed that Rokita violated various portions of the Indiana Rule of Professional Conduct when he spoke about the pending investigation into Bernard to Fox News host Jesse Watters on July 13, 2022, as well as to other media outlets and through public statements from the Indiana Attorney General’s Office.
Officials with the Indiana Supreme Court said that the commission investigates and prosecutes allegations of attorneys accused of violating the Indiana Professional Rules of Conduct.
What led to this disciplinary complaint?
According to previous reports, Bernard, an Indianapolis obstetrician-gynecologist who performed an abortion on a 10-year-old rape victim, was found to have violated patient privacy laws by talking publicly about the procedure. During a May 2023 hearing, Bernard said she did nothing wrong, stating she complied with all patient confidentiality and HIPAA laws.
According to the complaint, Bernard was featured in a story from The Indianapolis Star on July 1, talking about the procedure. The documents said that Bernard performed an abortion on a 10-year-old from Ohio who was six weeks and three days pregnant after the child was referred to Bernard from an Ohio doctor.
On July 2, the documents said that Bernard submitted a termination of pregnancy report to the Indiana Department of Health, which was then forwarded to the Indiana Department of Child Services.
After Bernard made the public remarks in July 2022, Rokita opened an investigation into Bernard after six complaints were made to the Indiana Attorney General’s Office about Bernard’s “performance of a termination procedure on a 10-year-old.” According to the documents, none of the complainants were Bernard’s patients.
On July 13, Rokita appeared on Watters’ show to speak about the Bernard investigation. During the interview, Rokita told Watters, in front of a national audience, that Bernard is an “abortion activist acting as a doctor – with a history of failing to report.”
“We’re gathering the evidence as we speak, and we’re going to fight this to the end,” Rokita said during the show, “including looking at her licensure if she failed to report… This girl was… politicized for the gain of killing more babies. All right, that was the goal. And this abortion activist is out there front and center. The lamestream media, the fake news, is right behind it.”
A news release was then released by Rokita’s office the next day, which stated that the investigation is ongoing and the office is “waiting for the relevant documents to prove if the abortion and/or the abuse were reported.” Rokita also discussed the investigation of Bernard in multiple other media interviews.
“The failure to (report the abortion and/or the abuse) constitutes a crime in Indiana,” Rokita’s office said at the time, “and (Bernard’s) behavior could also affect her licensure.”
Officials said that at the time that Rokita made the statements, the office had not yet filed notice with the Indiana Medical Licensing Board surrounding the request to prosecute Bernard’s license. The Indiana Attorney GeneraL’s office filed an administrative complaint with the board against Bernard on Nov. 30, 2022.
What are the charges presented?
Through his multiple statements, the commission claims that Rokita violated multiple portions of the Indiana Rule of Professional Conduct.
By referring to Bernard as an “abortion activist acting as a doctor – with a history of failure to report” on the Watters show on Fox News, the commission claims that Rokita violated Indiana Rule of Professional Conduct 3.6(a) and 4.4(a).
Rule 3.6(a) said that an individual who is a part of the investigation should not make any statement that they know, or reasonably should know, will be disseminated to the public and will have “a substantial likelihood of materially prejudicing” future proceedings. Rule 4.4(a) said that a lawyer should “not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such person.”
The third charge claims that Rokita further engaged in conduct that “is prejudicial to the administration of justice,” through further public comments and statements to media throughout the investigation in violation of rule 8.4(d) of the Indiana Rule of Professional Conduct. The charge also alleges that Rokita, in these statements, violated Indiana Code 25-1-7-10(a) surrounding the confidentiality of complaints.
Ultimately, the Disciplinary Commission of the Indiana Supreme Court is asking for Rokita to be “disciplined as warranted for professional misconduct.”
How did Rokita respond to the charges?
According to officials with the Indiana Supreme Court, Rokita, as the Indiana Attorney General, has an opportunity to respond to these allegations. In a statement provided to FOX59/CBS4 Monday morning, Rokita responded, stating he will continue to defend the state’s privacy and patient consent laws.
In the statement, Rokita said that his office will file a response to the complaint. The statement provided included some details that the office said will come from the response, which has not yet been filed in the case.
Rokita said he believes that no confidentiality should be required because Bernard violated her confidentiality duties by disclosing the patient’s condition and treatment to the press and through an interview on MSNBC. Rokita’s office also said that the confidentiality statute referenced in the complaint “only prohibits discussion of ‘complaints and information pertaining to the complaints,’ which Attorney General Rokita did not discuss,” the statement read.
“The Attorney General, as an elected official who answers to the public, has a duty to keep the public informed of the Office’s actions and decisions,” the statement read. “It is unclear if the confidentiality statute referenced in the Commission’s Complaint applies to the elected Attorney General himself, since that statute is specifically limited in scope to employees of the Attorney General’s Office, who are not elected to their positions… The Attorney General ultimately answers to the public, which is fundamental to democracy.”
Rokita also said that his office is not responsible for the public interest generated in the matter and “any judicial burden that ensued. The statement said that he believes this started when Bernard publicly disclosed her patient’s “private medical information at a political function.”
“Attorney General Rokita at all times has cooperated with the Indiana Disciplinary Commission and continues to seek the proper administration of justice,” the statement read.
Rokita’s team filed their official response to the allegations from the commission on Monday morning, outlining many of the arguments Rokita presented in his statement. Ultimately, Rokita is requesting that the cause of action be dismissed.
According to the documents, Rokita’s team said the phrase he used during the Watters show on July 13, 2022 – referring to Bernard as an “abortion activist acting as a doctor – with a history of failure to report” – could “reasonably be considered to have violated” rules 3.6(a) and 4.4(a) of the Indiana Rule of Professional Conduct. However, the team stresses that should a hearing be necessary in this case, Rokita “demands strict proof thereof.” Rokita also denied the allegations that he violated rule 8.4(d) of the Indiana Rule of Professional Conduct.
Rokita’s team went on to say in the response that it is “unclear” if the statute applies to Rokita, as the attorney general, The team described the statute as being “limited in scope to employees of the Attorney General, not the democratically elected official who answers to the people.”
“The Attorney General has a legal duty to keep the public informed of the office’s actions and decisions; and, it is unclear how the contours of the confidentiality afforded by the statute interact and intersect with the Attorney General’s duty to keep the public informed about non-confidential matters,” the response reads.
The response also claims that the action, as a whole, violates separation of powers provided in the Indiana Constitution, as well as the First Amendment of the U.S. Constitution and Article 1 Section 9 of the Indiana Constitution.
In a comment provided by Kathleen DeLaney, the counsel for Bernard on the matter, they said that Bernard’s legal team has no involvement in the charges filed and cannot comment on them.
“We will watch how the Disciplinary Commission process proceeds and let the complaint speak for itself,” the statement read.
Officials with the Indiana Supreme Court said a trial-like proceeding can be conducted after the commission alleges misconduct and an attorney, in this case Rokita, denies the allegations. The justices of the Indiana Supreme Court will then determine what, if any, misconduct has occurred and what, if any, sanction is warranted.