The Indiana Supreme Court announced on Monday, June 29, that it refused to accept transfer in the Indiana State Health Commissioner and Voices for Life, Inc. v. Caitlin Bernard, MD, and Caroline Rouse, MD, case. The ISMA and AMA also appeared as amicus parties in the suit to protect patient and physician privacy. This leaves the Dec. 5 Court of Appeals’ decision, which was favorable for physician and patient confidentiality and shielded Terminated Pregnancy Reports (TPRs) from disclosure as public records, intact. This also leaves the trial court’s preliminary injunction order, preserving the confidentiality of TPRs as medical records, in effect. 

“ISMA is steadfast in its commitment to preserving the sanctity of the physician-patient relationship and protecting the privacy of physicians and patients,” Julie Reed, ISMA Executive Vice President, said. “We’re so proud ISMA could help the courts see this issue for what it was – a blatant attack on physician and patient privacy.”

The case will now return to the trial court for proceedings on the merits. ISMA will keep members apprised of developments in the case.

Background 
Indiana law requires physicians to submit TPRs to the Indiana Department of Health (IDOH) every time they perform an abortion. These TPRs require the physician to provide more than 30 pieces of information regarding the patient, including the patient’s age, race, education level, county of residence, marital status, number of other children, date of last menses, and date of conception. TPRs also identify the treating physician. IDOH aggregates TPR data to publish quarterly reports. The case stems from a back-and-forth legal battle that began when Indiana’s near-total abortion ban took effect in 2023. IDOH previously treated TPRs as public records that could be released pursuant to public records requests. With the new law dramatically reducing the number of abortions in Indiana, IDOH stopped releasing TPRs out of concern that information in the reports could be used to identify patients. The South Bend-based anti-abortion group Voices for Life (VFL), which has historically obtained copies of TPRs and filed complaints against physicians, filed suit. A judge upheld IDOH’s nondisclosure policy. During VFL's appeal, IDOH's legal representation changed from private counsel to the Office of the Indiana Attorney General. VFL and IDOH then reached a settlement in which IDOH agreed to release partially redacted TPRs. Two ISMA members, Caitlin Bernard, MD, and Caroline Rouse, MD, then filed their own suit to block the release of TPRs. After a lower court entered an injunction in favor of Drs. Bernard and Rouse, IDOH and VFL, now on the same side of the dispute, appealed. 

ISMA’s Amicus Brief 
ISMA and the AMA filed an amicus curiae (“friend of the court”) brief in the appeal, raising two primary policy issues. First, the brief impressed upon the Court the importance of patient privacy to the physician-patient relationship. ISMA’s brief said, “The trust that is foundational to the patient-physician relationship can be eroded, if not destroyed, by the prospect that one’s private health information may become a matter of public record.” Moreover, the danger is not confined merely to reproductive health issues. “[T]he legal and social ramifications of this question go far beyond the care detailed in those reports and strike at the very heart of the patient-physician relationship in any health care context. Today, it is TPRs. Tomorrow it could be another record documenting a patient’s medical history, diagnosis, and treatment.” Second, ISMA’s brief expressed concern about physician targeting and harassment through the public release of TPRs. The “use of information obtained through public records requests for this purpose does nothing to advance the goal of government transparency… and will only have the effect of reducing physicians’ sense of safety, harming physician health and well-being, and destabilizing a medical profession that is essential to maintaining a broad continuum of care here in Indiana.” ISMA Resolution 24-17, adopted by the ISMA House of Delegates while the VFL’s lawsuit was still pending, directs ISMA to actively oppose legislative or regulatory attempts to publicly release TPRs. ISMA Executive Vice President Julie Reed, JD, weighed in on the importance of this case. “Physicians are frustrated by and worried about the politicization of health care, as well as the increasing efforts by third parties to interfere with the physician-patient relationship. ISMA’s involvement in this case sends an important and strong message that health care services and health information need to stay where they belong – in the hands of physicians and their patients.” 

The Court of Appeals Decision 
In its Dec. 5 opinion, the Indiana Court of Appeals sided with the physicians and ISMA, observing “[t]he State’s position on patient confidentiality has changed dramatically over the last two years, resulting in the legal uncertainty that fueled the underlying action and this appeal.”

As a threshold matter, the Court found Drs. Bernard and Rouse had sustained sufficient legal injury to bring the case through their loss of patients and harm to the physician-patient relationship. Disclosure of medical records may, the Court noted, cause “reputational harm, increased harassment, and erosion of public trust.” The Court further found that Dr. Bernard had been injured by having been disciplined for disclosing information identical to that sought by VFL. The Court noted the State's highly inconsistent and often contradictory positions on the confidentiality of TPRs. “If TPRs are publicly disclosable, then every physician who submits a mandatory TPR becomes the source of information that may publicly identify their patient—the same conduct for which Dr. Bernard was sanctioned.” This “conundrum” created “when the State treats identical information as both confidential and non-confidential” is enough to constitute a legal harm to the physicians. The Court, characterizing the TPR content and submission requirements as “onerous,” declared TPRs to be “patient medical records” exempt from public disclosure. In reaching this conclusion, the Court cited statements by IDOH’s own Assistant Commissioner, who said the TPR form “calls for abortion providers to provide information concerning a patient’s diagnosis, treatment, or prognosis… of the particular patient upon whom the abortion procedure was performed and for whom the TPR is submitted.” In response to arguments made by IDOH and VFL, the Court found that TPRs remained exempt from disclosure even with redaction of names and other identifying information. The Court went on to reject VFL’s claim that their access to the TPRs was a critical component of Indiana’s abortion law enforcement. Quoting Drs. Bernard and Rouse, the Court found VFL’s claim of necessary vigilantism “wholly unsupported by legal authority.”