There was a time in our country when a child who was raped, and impregnated as a result, had to leave her home state to obtain an abortion. There was a time when some of the leaders of this country publicly doubted the truth of this story. And finally, because it seems there is always more, there was a time when the doctor who performed the abortion was baselessly accused of potentially committing a crime on national television. That time was last week.
Threatening doctors with legal action seems to be the preferred method of scaring health care providers into not actually providing care.
It has been less than a month since the Supreme Court ruled that the right to an abortion is not protected by the federal constitution. And in that time, we have seen and heard the stories demonstrating the real world effects of allowing states to ban abortions. There is the woman from Texas forced to carry a dead fetus for two weeks while she sought a doctor who would provide her with medical care without fear of punishment. There is the woman from Wisconsin who suffered a miscarriage and then bled for 10 days because health care providers were worried about the legal repercussions of removing the dead fetal tissue. There is the woman from Louisiana whose water broke at 16-weeks. The fetus was no longer viable. Her doctor wanted to perform an abortion procedure but after consulting with a lawyer, decided it was too risky — legally, not medically. The woman was forced to deliver a nonviable fetus and hemorrhaged nearly a liter of blood. There is the woman who had to travel to Michigan to obtain medical care due to a life-threatening ectopic pregnancy because medical providers were worried about the legal consequences of treating this woman in her home state.
Perhaps the story that has most clearly shown us the reality of living in a post-Roe v. Wade country is not actually a woman’s story, but a child’s. A 10-year-old girl from Ohio was raped. The rape caused her to become pregnant. She was forced to seek care, meaning an abortion, in the neighboring state of Indiana, where it is still legal to perform an abortion for a child who is raped, at least for now.
This isn’t, but could be, a column about how prominent Republicans, including Dave Yost, Ohio’s attorney general, publicly doubted the veracity of what happened to this 10-year-old child. Instead, this is a column about how some Republicans are trying to scare health care providers into refusing to perform abortions, even when they are legal.
Prominent Republicans, including Dave Yost, Ohio’s attorney general, publicly doubted the veracity of what happened to this 10-year-old child.
That’s what happened when Indiana Attorney General Todd Rokita went on national television and claimed that Dr. Caitlin Bernard, the Indiana doctor who performed the abortion for the 10-year-old rape victim had a “history of failing to report” abortions (Indiana law requires that abortions be reported). Rokita said that if Bernard did in fact fail to report, that would amount to criminal behavior.
The only hitch in Rokita’s claims is that they appear to be baseless.
Being wrongfully accused of illegal behavior by the attorney general of her state may actually be preferable to what Bernard endured last year, when the FBI uncovered a threat to kidnap her daughter. The threat occurred after an anti-abortion group published certain identifying information about Bernard on its website.
But back to the case at hand. Threatening doctors with legal action seems to be the preferred method of scaring health care providers into not actually providing care. So perhaps it is only fair to threaten legal action against those who apparently defame health care providers who legally perform abortions. Bernard, understanding this, has filed a tort claim notice, which is a prerequisite to filing a defamation suit under Indiana law. This follows the cease and desist letter that she filed last week. Rokita’s purpose plainly appears to be attacking Bernard, but perhaps more perniciously, to send up a warning signal to any other doctors who might think of legally performing abortions. If your goal is to either outlaw abortion or ensure that even where it is legal, no doctors want to risk the consequences of performing an abortion, then this is a good way of trying to achieve that. There are so many fights ahead when it comes to reproductive rights. The one that Bernard has been forced to wage is but one part of a seemingly-ceaseless war. But it is an important one. Health care providers must be able to provide abortion services where legal without fear that they will be harassed, smeared, and defamed as a result of doing what they are trained to do: provide medical services. Bernard’s threatened suit is a much needed counterpunch against bullies who think they can scare doctors into not acting like doctors.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
