Doctor in 10-year-old’s abortion case takes legal step against Indiana attorney general

Attorneys for the Indianapolis doctor who helped a 10-year-old Ohio rape victim obtain an abortion took the first legal step Tuesday in a possible defamation lawsuit against Indiana’s Republican Attorney General Todd Rokita for his comments in a story that has captured international attention.

Kathleen DeLaney filed a notice of tort claim against Rokita on behalf of her client, Caitlin Bernard, for “false and misleading statements” about the obstetrician/gynecologist in the days after she shared how she helped the child, who traveled to Indiana for an abortion.

“Mr. Rokita’s false and misleading statements about alleged misconduct by Dr. Bernard in her profession constitute defamation per se. The statements have been and continue to be published by or on behalf of Mr. Rokita and the Office of the Attorney General,” the notice reads. “To the extent that these statements exceed the general scope of Mr. Rokita’s authority as Indiana’s Attorney General, the statement forms the basis of an actionable defamation claim against Mr. Rokita individually.”

Even after Gerson Fuentes was charged last week with rape in the case, Rokita questioned Bernard about whether she had reported the procedure to state officials, as required by law. Records obtained by The Washington Post show that Bernard reported the girl’s abortion to the relevant state agencies before the legally mandated deadline to do so.

A spokesperson with the attorney general’s office did not immediately respond to a request for comment on Tuesday.

Bernard is seeking unspecified damages to help cover security costs, legal fees, reputational harm and emotional distress, according to the notice. If Rokita does not investigate or settle the claim in the next 90 days, then Bernard could file a defamation lawsuit.

The notice comes as a separate misconduct complaint alleges that Rokita intended to “harass and intimidate” doctors who perform abortions when he publicly cast doubts about whether Bernard complied with state law. That newly filed complaint from Lauren Robel, the former dean of Indiana University’s Maurer School of Law, is expected to trigger a probe by the state’s Supreme Court Disciplinary Commission after Rokita claimed last week on Fox News that Bernard had a “history of failing to report” abortions in child-abuse cases and rapidly launched an investigation into her licensure.

“We have this abortion activist acting as a doctor with a history of failing to report,” Rokita said to Fox News host Jesse Watters at the time. “We’re gathering the evidence as we speak, and we’re going to fight this to the end, including looking at her licensure. If she failed to report it in Indiana, it’s a crime for - to not report, to intentionally not report.”

A spokesperson for Rokita’s office dismissed Robel’s complaint this week, saying in an earlier statement to The Post that “any attorney or client can file anything they want, even without basis, which is the case here.” The attorney general’s office said that while no enforcement actions have been filed against Bernard so far, it will continue to pursue its investigation of her conduct.

[Women denied abortion rarely choose adoption. That’s unlikely to change.]

But the first legal step toward a possible defamation lawsuit has escalated a situation that began when Bernard told the Indianapolis Star in an article published July 1 that she had been called by a doctor in Ohio about a young patient who was six weeks and three days pregnant after being raped. Although the account of the girl’s situation quickly gained international attention and was decried by President Biden, it was followed by a wave of skepticism from conservative politicians, pundits and media outlets that expressed doubts. (The Washington Post also published a Fact Checker analysis that initially concluded that the report about the girl was a “very difficult story to check.”)

The story was corroborated last week when Fuentes, 27, was charged after he allegedly confessed to authorities that he had raped the 10-year-old on at least two occasions. If he is convicted of first-degree felony rape, Fuentes could face life in prison.

Since then, however, Rokita has shifted his attention toward whether Bernard followed the appropriate protocols for reporting the abortion, even though documents show she did. Officials with Indiana University Health also told The Post that Bernard did not violate any privacy laws when she shared an anecdote with the media about the 10-year-old rape victim needing an abortion.

In the letter filed Tuesday to Rokita and Indiana state officials, DeLaney wrote that the attorney general has limited authority to investigate complaints against professionals in certain fields, such as physicians. The attorney noted that state law requires Rokita to “maintain the confidentiality of such complaints” unless he has plans to prosecute.

Even though Bernard’s license in Indiana was “active with no disciplinary history” as of last Wednesday, the notice claims that the attorney general’s goal was to “heighten public condemnation” of the doctor.

“Mr. Rokita either knew the statements were false or acted with reckless disregard of the truth or falsity of the statements,” the notice reads. “Statements that Dr. Bernard has a ‘history of failing to report,’ which Mr. Rokita indicated would constitute a crime, made in the absence of reasonable investigation, serve no legitimate law enforcement purpose. Given the current political atmosphere in the United States, Mr. Rokita’s comments were intended to heighten public condemnation of Dr. Bernard, who legally provided legitimate medical care.”

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The Washington Post’s María Luisa Paúl and Kim Bellware contributed to this report.