For Republican Attorneys General, it’s all about control
After the Dobbs ruling, Republican state AGs formally opposed a federal HIPPA rule designed to protect private health care information of women obtaining abortions in states where abortions are legal. Demanding access to out-of-state abortion medical records, Republican AGs claimed, fantastically, that there was no legal or legislative need to protect the medical privacy of these women, because “no states that outlaw or heavily restrict abortion access penalize people who seek abortions.”
Enter AGs Todd Rokita of Indiana and Ken Paxton of Texas, breast-beating about their legal prerogative to make sure abortions - even legal ones - are penalized.
Indiana’s AG pretended to protect ‘the privacy’ of a 9-year-old rape victim
Following Dobbs, a 9-year-old Ohio girl was raped and impregnated by her mother’s boyfriend. Because Ohio Republicans had passed a law that would force the child to carry and give birth to her rapist’s child, she sought an abortion in neighboring Indiana, where Republicans’ abortion ban had also passed but was not yet in effect. The child obtained a legal abortion in Indiana with the help of Indianapolis obstetrician-gynecologist Dr. Caitlin Bernard.
Incensed that the public saw evidence that children were, indeed, raped and impregnated and in need of state protection, Rokita set out on a face-saving vendetta to destroy Dr. Bernard.
Rokita filed an official misconduct complaint against Bernard with the state Medical Licensing Board, seeking to end her medical career and suspend her license to practice medicine, mainly because she allegedly violated the child’s “medical privacy” when she went public with the (anonymous) child’s story. Savoring his revenge, Rokita appeared on Fox News to gloat and defamed Bernard as an “abortion activist acting as a doctor.” After Indiana’s medical board sanctioned Bernard mildly, Rokita then filed a lawsuit against the doctor’s employer, Indiana University Health, alleging it had also violated the girl’s “privacy rights.”
Rokita, naturally, is among the 19 Republican AGs who formally assert that women getting legal abortions have no right to medical privacy.
To date, Rokita has not reconciled his embrace of privacy rights for a rape victim whose pregnancy embarrassed him with his simultaneous position that women seeking an abortion are not entitled to medical privacy at all.
Something is amiss in Texas
Rokita’s abuse of power, galling though it is, has just been upstaged in Texas.
Last week, a Texas judge ruled that expecting mother Kate Cox’s pregnancy met the state’s “save the life of the mother” medical exception under the state’s abortion ban, because of a diagnosis of trisomy 18. Trisomy 18 is a defect that almost always ends in death to the fetus, and is known to present serious medical risks and extreme pain to the mother, jeopardizing her future ability to give birth.
When the judge ruled that Cox was legally entitled to an abortion, livid Republican Paxton hit the warpath. Immediately following the ruling, Paxton threatened Texas health care providers with felony prosecutions. He sent an intimidating letter to each individual hospital where Cox’s doctor held admitting privileges, warning them not to permit Cox’s abortion despite the judge’s ruling authorizing it. The court’s ruling, Paxton threatened the hospitals, “will not insulate you, or anyone else, from civil and criminal liability for violating Texas’ abortion laws, including first-degree felony prosecutions.”
The rub is that Cox’s trisomy 18 diagnosis itself was never in dispute. The problem, according to Paxton and the all-Republican band of Texas Supreme Court justices, was Cox’s physician’s determination under a “good faith belief” that Cox’s condition met the medical standard for a legal exception under the state’s abortion ban.
Reversing the lower court and denying Cox’s plea for a legal abortion, the all Republican Texas Supreme Court decided that Cox’s doctor’s good faith medical belief was not sufficient. They wrote, “Some difficulties in pregnancy, even serious ones, do not pose the heightened risks to the mother the [Texas] exception encompasses.”
Via pen and hubris, the shockingly callous, non-medically trained justices substituted their own medical opinion for that of Cox’s doctor, ruling that she may have been in danger, but she wasn’t close enough to death to meet the medical exception under Texas’ abortion ban.
As Alito so dismissively quipped in Dobbs, “women are not without electoral or political power.”
May we use our vote to reign in Republicans hellbent on our subjugation.
Sabrina Haake is a 25-year litigator specializing in 1st and 14th Amendment defense. Her columns appear in OutSFL, Chicago Tribune, Salon, State Affairs, and Howey Politics. She and her wife split their time between South Florida and Chicago. Follow her on substack.