The Indiana Department of Health is seeking to dismiss a lawsuit against the agency that was filed by an anti-abortion group over related records.

The lawsuit in question was filed in May by “Voices for Life,” which seeks to regain access to Terminated Pregnancy Reports (TPRs) that are no longer being released by the state health department.

Legal counsel for IDOH filed a motion to dismiss on June 21, maintaining that Voices for Life “fails to state a claim upon which relief can be granted.” The anti-abortion group has until July 23 to file its response.

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Memo in Support of MTD

Ryan Shouse, an attorney with Indianapolis-based Lewis and Wilkins LLP, emphasized in the motion that, “as a matter of law” TPRs are “confidential” under Indiana’s Access to Public Records Act, also known as APRA.

“APRA grants any person the right to inspect and copy IDOH’ s public records,” Shouse wrote, noting, however, that APRA contains exemptions.

He pointed to the law, which states that, “

atient medical records and charts created by a provider” are “excepted from [the general rule of disclosure] and may not be disclosed by a public agency, unless access to the records is specifically required by a state or federal statute or is ordered by a court under the rules of discovery …. “

IDOH pushes for dismissal

Shouse additionally argues that TPRs maintained by IDOH meet the statutory definition of “medical records” — therefore making them exempt from APRA. 

Per Indiana Code, “medical records” contain three elements: written or printed information; are in the possession of a provider; and concern a patient’s diagnosis, treatment or prognosis.

Shouse said TPRs meet all three requirements. His motion points out that Indiana Code specifically requires:

• the diagnosis code for fetus and mother for abortions performed prior to 20 weeks
• the medical reason for an abortion
• gestational age and the information used to determine gestational age
• results of pathological testing, if it is performed
• any disability diagnosis of the fetus
• pre-existing medical conditions of the mother, and 
• the mother’s obstetrical history

In addition, the statute requires specifics about the procedure itself, such as the precise medications used for nonsurgical abortions.

“This is patient-specific medical information that is used for the diagnosis and treatment of the individual patient,” Shouse said. “In short, TPRs squarely meet Indiana’s definition of a ‘medical record’ because they are written records created and maintained by a provider that contain individualized patient diagnosis and treatment information. Applying this straightforward definition, IDOH properly withheld TPRs pursuant to the medical record exception in APRA.”

Background on the lawsuit

IDOH and Dr. Lindsay Weaver, the state health commissioner, are currently represented by Indianapolis-based Lewis and Wilkins LLP, rather than in-house attorneys from Indiana Attorney General Todd Rokita’s office.

The South Bend-based “Voices for Life” group is suing the IDOH after it stopped releasing individual TPRs, while still compiling statewide public data quarterly. The change in procedure went into effect in December.

AG denies Indiana Department of Health request for outside counsel in abortion records lawsuit

Before then, the reports — while redacted — were regularly released under Indiana’s Access to Public Records Act.

The lawsuit, filed in Marion County Superior Court, came just weeks after Rokita called out IDOH and Indiana’s Public Access Counselor for “collusion” and issued a non-binding advisory opinion saying TPRs are public records.

In the past, anti-abortion groups have used the reports to file medical licensing complaints against specific doctors for procedural issues, such as filing a TPR late.

The state health department changed its policy after Indiana’s new, near-total abortion ban went into effect, which meant providers performed far fewer abortions. State health officials were worried that information on the report could indirectly identify the women getting the procedure and sought a ruling from Indiana Public Access Counselor Luke Britt.

Britt agreed that the report could be “reverse engineered to identify patients — especially in smaller communities.” 

He found the required quarterly reports of aggregate data should suffice in terms of satisfying any disclosure and transparency considerations. Britt additionally said the records, created by doctors, fall under the provider-patient relationship as medical records.

Britt’s ruling isn’t binding, either.

So far, no court dates have been set in the TPR case. After Voices for Life files its response, it will be up to the judge to decide on the motion to dismiss.