Indiana Health Department is sued by an anti-abortion group seeking access to abortion records

Indianapolis, Indiana – The anti-abortion organization “Voices for Life” filed a lawsuit this week in an attempt to obtain access to Indiana abortion records that the state health department has stopped providing.

The group based in South Bend is suing the Indiana Department of Health (IDOH) for ceasing to release individual Terminated Pregnancy Reports (TPRs) yet continuing to compile quarterly public data for the entire state. The modified process became operative in December.
Prior to that, the reports were frequently made public under Indiana’s Access to Public Records Act, although with redactions.

A few weeks ago, Indiana Attorney General Todd Rokita accused IDOH and the state’s public access counselor of “collusion” and released a non-binding advisory opinion declaring that reports of terminated pregnancies are public information. Now, the complaint has been filed in Marion County Superior Court.

Voices for Life once more requested terminated pregnancy reports last month after having many requests for information turned down in the autumn. They claimed that Rokita’s ruling ought to force IDOH to provide the documents. However, the state agency rejected the most recent requests as well, which is what prompted the formal complaint.

“Accessing these reports has always been about evaluating provider compliance with Indiana abortion law,” said Melanie Garcia Lyon, executive director of Voices for Life, during a Wednesday news conference. “If this were truly a privacy concern, the health department could easily redact info on these reports. But this isn’t about protecting women’s privacy. This is about protecting dangerous abortion providers from public scrutiny and allowing them to continue to operate without consequences for legal action.”

Anti-abortion organizations have previously used the reports to bring medical license charges against certain physicians for procedural infractions, like failing to file a timely TPR.

Following Indiana’s new, nearly complete abortion prohibition, the state health department modified its policy, resulting in a decrease in the number of abortions done by providers. State health officials requested an opinion from Indiana’s Public Access Counselor because they were concerned that details in the report would be used to inadvertently identify the women undergoing the treatment.

The information gathered on terminated pregnancy reports, or TPRs for short, includes the woman’s age, education level, and marital status in addition to the date of the abortion, the fetus’s gestational age, her race and ethnicity, and the city and county in where the abortion took place.
Luke Britt, a public access counselor, discovered that it was possible to “reverse engineer the report to identify patients—especially in smaller communities.”

He concurred with IDOH that all disclosure and openness requirements should be met by the mandatory quarterly reports. Britt added that since the data were made by physicians, they are classified as medical records and fall under the provider-patient relationship.

However, Britt’s decision is not enforceable.

Benjamin Horvath, an attorney for Voices for Life, stated that hiding TPRs is a matter of transparency. According to him, those documents are essential for ensuring that the state’s abortion legislation is obeyed.

“We are not after patient information,” Horvath said. “It really is about the physician performing the abortion — where are they performing it? And then Voices for Life is able to carry out its mission, having access to it.”

According to Lyon, since 2022, Voices for Life has asked for and examined TPRs. She said that information obtained from these reports regarding 701 examples of possible criminal behavior has been filed with complaints by a “enforcement team.”

Other anti-abortion organizations have asked IDOH for and been granted TPRs in a similar manner for decades. According to the lawsuit, the seeking groups looked through the records “for apparent violations of health and safety standards among abortion providers.”

The lawsuit stated that up until October 2023, IDOH “routinely” sent TPRs to Voices For Life upon request and deleted potentially patient-identifying information. However, Voices For Life’s records request, which was made on October 16 and sought TPR documents for August 2023, was eventually turned down by IDOH in January.

According to the lawsuit, Voices For Life also asked TPRs be filed in September, October, and November. In January as well, the pleas were essentially turned down.

The state health agency claimed the records were “no longer releasable through public records request” because they qualified as confidential medical records, according to email exhibits that were added to the complaint.

The lawsuit highlights a distinct finding in Rokita’s 11-page ruling, namely that the reports do not qualify as protected health records. He added that the law was not changed by politicians to protect them.

The legal challenge further said IDOH’s “refusal to comply” with Voices For Life’s public records requests “deprives private citizens of their role in petitioning the Attorney General to investigate cases that suggest a termination of pregnancy was unlawful.”

It refers to Rokita’s view that, while there is still information available in the quarterly reports IDOH releases, the lack of individual TPR data precludes the attorney general’s office from looking into the aggregated data for October through December 2023 that “shows probable cause to believe that some abortions performed during this period may have been unlawful.”

“Because it frustrates needed investigation into potentially unlawful abortions, IDOH’s refusal to disclose TPRs to plaintiffs places human lives at risk. It also frustrates Voices For Life’s mission to protect the lives of mothers and the unborn,” the lawsuit said. “These results of the Public Access Counselor’s Informal Opinion are the opposite of what the statute intends in mandating creation and filing of TPRs. The court must not allow this situation to continue.”