Last week, Dr. Caitlin Bernard’s attorney said in a statement, “We are considering legal action against those who have smeared my client.” A day later, as NBC News reported, the same lawyer, Kathleen DeLaney, sent an interesting letter to Indiana’s Republican attorney general.
The lawyer for a doctor who provided abortion services to a 10-year-old rape victim sent Indiana Attorney General Todd Rokita a cease-and-desist letter Friday demanding he stop making “false or misleading statements” about the physician.
Let’s revisit our earlier coverage and recap for those who might need a refresher.
It was a few weeks ago when the public first learned of a 10-year-old girl in Ohio who’d been impregnated by a rapist. As a result of a Republican-imposed abortion ban in her state, the girl had to travel to Indiana to terminate the pregnancy.
Soon after, Rokita shifted his attention to the physician who treated the victim.
Indeed, on Wednesday night, Rokita appeared on Fox News and vowed to investigate the obstetrician-gynecologist, suggesting the doctor may have engaged in criminal misconduct. In case his comments were too subtle, the GOP attorney general issued a written statement a day later, questioning whether the physician followed reporting requirements. “The failure to do so constitutes a crime in Indiana,” Rokita’s statement added.
A few hours later, the Fox affiliate in Indianapolis reported that Bernard “not only filed a terminated-pregnancy report but filed the report within the required timeframe.” The outlet’s report was based, not on leaked materials, but through a routine public records request — a step the Indiana attorney general’s office could’ve taken before Rokita started accusing the doctor of wrongdoing.
The Republican Hoosier also raised the prospect of a possible HIPAA violation, but Indiana University Health officials also concluded that the physician did not violate any privacy laws.
As Talking Points Memo’s Josh Marshall summarized, “In other words, Rokita went forward with a series of defamatory claims and accusations against Bernard ... apparently without even the most cursory of records checks that were not only available to him as attorney general but members of the public in roughly 24 hours.”
It was bad enough that the Republican Hoosier launched an offensive against the physician in the first place. We are, after all, talking about an OBGYN who treated a 10-year-old rape victim.
But Rokita, a former member of Congress, made rather specific claims about alleged misconduct, which were contradicted — with remarkable speed — by evidence he could’ve reviewed before making accusations to a national audience.
It was against this backdrop that Bernard’s counsel sent a rhetorical shot across the state attorney general’s bow.
“Please cease and desist from making false and misleading statements about alleged misconduct by Dr. Bernard in her profession, which constitute defamation per se,” the lawyer’s letter read. “Moreover, to the extent that any statement you make exceeds the general scope of your authority as Indiana’s Attorney General, such a statement forms the basis of an actionable defamation claim.”
The letter to Rokita added, “Your false and defamatory statements to Fox News on July 13, 2022, cast Dr. Bernard in a false light and allege misconduct in her profession. Even after the release of the TPR (Terminated Pregnancy Report) through public record requests, confirming that Dr. Bernard fully complied with all applicable reporting laws, your subsequent statements to local and national news sources on July 14, 2022, further cast Dr. Bernard in a false light and mislead consumers and patients.”
The physician’s lawyer went on to express concern that “given the controversial political context of the statements, such inflammatory accusations have the potential to incite harassment or violence from the public.”
For his part, Rokita’s spokesperson said, in classic passive-voice phrasing, “Like any correspondence, it will be reviewed if and when it arrives. Regardless, no false or misleading statements have been made.”
It’s a safe bet that we haven’t heard the last of this one.