The Indiana Supreme Court issued a reprimand of the state’s conservative attorney general on Thursday for comments he made about an abortionist during a July 2022 Fox News interview. While the public reprimand may not seem like a big deal, it is. It represents yet another example of the weaponization of state bars.
On Thursday, the Indiana Supreme Court issued a six-page opinion in a disciplinary complaint docketed as “In the Matter of Theodore E. Rokita.” Rokita, who goes by Todd, is the state’s Republican attorney general.
As the Indiana Supreme Court’s opinion explained, on July 13, 2022, Rokita “appeared on a national television program to discuss an Indiana physician who had performed an abortion on a ten-year-old rape victim from Ohio.” That appearance, on Jesse Watters’ Fox News program, followed a public outcry over abortionist Caitlin Bernard publicly discussing an abortion she had performed on a 10-year-old rape victim.
Bernard’s disclosure of her patient’s private medical information seemed a transparent attempt to influence Indiana’s abortion law. It came mere weeks before the Indiana General Assembly prepared for a special session to consider enacting measures to protect the unborn in the wake of Roe’s reversal.
The Indianapolis Star included details of the abortion in a July 1 pro-abortion piece that opened with a vignette Bernard had relayed to a Star reporter at an abortion rally:
On Monday three days after the Supreme Court issued its groundbreaking decision to overturn Roe v. Wade, Dr. Caitlin Bernard, an Indianapolis obstetrician-gynecologist, took a call from a colleague, a child abuse doctor in Ohio.
Hours after the Supreme Court action, the Buckeye state had outlawed any abortion after six weeks. Now this doctor had a 10-year-old patient in the office who was six weeks and three days pregnant.
Could Bernard help?
After noting that such abortions were still legal in Indiana, the Star reported that “the girl soon was on her way to Indiana to Bernard’s care.”
Left unsaid was that the girl was raped by her mother’s boyfriend and that the victim’s mother then took her young daughter to Indiana for the abortion.
Bernard finished her story by noting, “It’s hard to imagine that in just a few short weeks we will have no ability to provide that care.”
The Indianapolis Star’s story set off a firestorm, prompting questions about whether Bernard had reported the rape to state officials, as required. During the ongoing public debate, Rokita appeared with Jesse Watters, with the Fox News host noting that Bernard had “a legal requirement to report the abortion to both child services and the state’s health department.” “From what we can find out so far,” Watters continued, “this Indiana abortion doctor has covered this up.”
“Failure to report is nothing new, though, for Dr. Bernard. According to reporting from PJ Media, she has a history of failing to report child abuse cases.” Watters then queried, “So, is a criminal charge next? And will Dr. Bernard lose her license?,” before saying, “Let’s ask the Indiana attorney general, Todd Rokita.”
Rokita responded: “We have the rape. And then we have this abortion activist acting as a doctor — with a history of failing to report. So, we’re gathering the information. We’re gathering the evidence as we speak, and we’re going to fight this to the end, including looking at her licensure if she failed to report. In Indiana, it’s a crime for, to not report — to intentionally not report.”
After the segment ran, the former dean of Indiana University’s law school, Lauren Robel, and a former executive director of the disciplinary commission, filed complaints against Rokita, claiming he violated the state’s rules of professional responsibility governing attorneys.
The state of Indiana would later file an administrative complaint against Bernand, claiming she violated patient privacy law and failed to report the rape in a timely fashion. On June 27, 2023, the Indiana Medical Licensing Board found Bernard had committed three violations of patient-privacy law by discussing the details of the 10-year-old’s abortion, but found no violation of the reporting law. The board reprimanded Bernand and fined her $3,000.
Less than three months later, the Indiana Supreme Court Disciplinary Commission issued a complaint against Rokita. It claimed his appearance on Fox News violated the rules of professional conduct because he should have known they would “have a substantial likelihood of materially prejudicing an adjudicative proceeding,” and because his comments had no purpose other than to “embarrass, delay, or burden a third person…” The disciplinary complaint also charged that the attorney general’s conduct was “prejudicial to the administration of justice.”
Rather than fight the charges, Rokita entered into a conditional agreement with the commission, admitting that his statement that Bernard was an “abortion activist acting as a doctor — with a history of failing to report,” constituted attorney misconduct, with the parties agreeing to a public reprimand as discipline.
On Thursday, the Indiana Supreme Court entered an opinion concluding that branding Bernard an “abortion activist acting as a doctor — with a history of failing to report,” violated the governing rules of professional conduct because the AG sought to “embarrass, delay, or burden” the abortionist. The opinion similarly concluded that Rokita should have known his comments would have a “substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” The Indiana Supreme Court then agreed by a 3-2 vote to publicly reprimand Rokita.
Two of the Indiana Supreme Court justices dissented, saying they “would reject the conditional agreement, believing the discipline to be too lenient based on the Respondent’s position as Attorney General and the scope and breadth of the admitted misconduct.”
If one of the three Indiana Supreme Court justices had voted with the dissent, the state’s attorney general could have faced a suspension from practicing law for, as Rokita put it after Thursday’s opinion came out, his “truthful 16-word answer.”
And that should chill conservatives — for it is conservative lawyers facing the brunt of the weaponization of the bar, whether it be former Assistant Attorney General Jeff Clark, Texas Attorney General Ken Paxton, or former law professor John Eastman.
This article has been updated since publication.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion (forthcoming), National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prive—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
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