Disciplinary grievance filed against Indiana AG Todd Rokita surrounding terminated pregnancy report comments

INDIANAPOLIS — An Indianapolis lawyer has filed a disciplinary grievance against Indiana Attorney General Todd Rokita, claiming he violated his AG duties by calling the public to sue the Indiana Department of Health to inspect and copy terminated pregnancy reports.

William Groth, a labor lawyer at Bowman & Vlink in Indianapolis, claims that as attorney general Rokita is required to prosecute and defend all lawsuits instituted by or against the state of Indiana, something that Groth claims Rokita did not do surrounding his official opinion and statements about terminated pregnancy reports.

Rokita was previously found to have violated the Indiana Rules of Professional Conduct by the Indiana Supreme Court Disciplinary Commission when he publicly commented on his office’s investigation into Dr. Caitlin Bernard, including comments he made on Fox News about Bernard.

In April, Indiana State Senator Andy Zay requested an official opinion from Rokita’s office , asking if terminated pregnancy reports are “disclosable pursuant to the Indiana Access to Public Records Act” or ARPA.

According to the Indiana Department of Health, terminated pregnancy reports, and termination complications, are reported to the department in accordance with Indiana Code 16-34-2, the portion of the Indiana Code that lists out required circumstances of legal abortion.

The reports are published on a quarterly basis by the Indiana Department of Health 60 days following the end of the calendar quarter. In the first quarter of 2024 , there were 45 pregnancy terminations in the state of Indiana.

In the answer from Rokita to Zay’s request, he concludes that the reports are “not patient medical records” but “public records that are open to public inspection” under ARPA.

“Had the legislature intended to classify TPRs as confidential, it could have done so,” Rokita said. “It did not. To classify the TPR as otherwise would inhibit the statutory intentions of the form explicitly provided for in statute. To the extent there may be any information that could reasonably identify a pregnant woman who received an abortion, the agency can redact that information and still disclose the record to fulfill the TPR’s statutory intention.”

Zay’s request came in the wake of Indiana’s near-total abortion ban that was implemented in August 2023, as well as an informal advisory opinion of Public Access Counselor Luke Britt on terminated pregnancy reports issued at the request of the IDOH in December 2023.

According to previous reports , Senate Enrolled Act One, initially passed in August 2022, prohibits all abortions in the state except for in the following scenarios:

• When reasonable medical judgment dictates that performing the abortion is necessary to prevent death or a serious risk of substantial of substantial and irreversible physical impairment of a major bodily function, or the “health or life exception.”
• When the pregnant person receives a diagnosis of a lethal fetal anomaly
• When the pregnant person is a victim of rape or incest.

After this near-total ban was implemented, many Republicans said they wanted access to the terminated pregnancy reports. However, others stressed that because of the lower number of abortions, it could jeopardize the privacy of the physicians who performed the procedures as well as the patients themselves.

Britt’s opinion on terminated pregnancy reports state there “is no question that the information contained therein is part of a patient medical record” and is not for the public.

“(The department) should treat the form with the same confidentiality considerations as any other patient medical record,” Britt said in the opinion. “Even if the report could be qualified as something other than a medical record… the statute itself seems to imply that the form is non-public.”

In response to Britt’s opinion, Rokita said that it was “faulty” and refusing to disclose the reports would make it “impossible” to ensure that SEA 1 was being complied with.

According to the grievance, Groth claims even though Rokita acknowledged that the department and the public access counselor were his clients, Rokita “asserted, without evidence, that there was ‘collusion’ between those two state agencies.”

“Though acknowledging that he has no authority to enforce public access to the (reports), Rokita stated that if members of the public request and are denied access to (the reports) by the IDOH, they should consider suing the IDOH to seek access to inspect and copy those reports.”

In Groth’s disciplinary grievance, filed to the Indiana Supreme Court Disciplinary Commission in late April, Groth cites Ind. 4-6-2-1 that requires the attorney general to “prosecute and defend all suits instituted by or against the state of Indiana.”

Groth claims there are multiple ethical rules that were implicated by Rokita’s conduct, including the portion of the Rule of Professional Conduct that prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice as well as the portion that prevents a lawyer from giving an evaluation where it is likely to adversely affect their client unless they give consent.

“Of course, were such a lawsuit to be filed against the IDOH, AG Rokita would be statutorily obligated to defend it,” the grievance reads.

“While there is no case directly on point, this is no doubt because no former attorney general has, or would even think of, publicly encouraging or suggesting that members of the public sue an agency of the state which that attorney general has a statutory duty to represent.”

Ultimately, Groth ends his grievance by requesting that the disciplinary commission investigate and initiate disciplinary proceedings against Rokita for his “professional misconduct.”

A spokesperson from Rokita’s office provided the following statement to FOX59/CBS4 regarding this disciplinary grievance:

“It’s very telling that there are more than 15,000 licensed attorneys in the State of Indiana — and yet two-out-of-the-three of these complaints have come from the SAME activist Indianapolis attorney — one who our office has crushed in separate, simultaneous legal battles.”

Spokesperson from Rokita’s office

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