Without law, there can be no crime; without crime, there can be no punishment.
The phrase is a bastardization of the legal concept, Nullum crimen sine lege, which states you cannot be punished for doing something not prohibited by law. But it is the reality facing many physicians today.
“We are investigating this situation and are waiting for the relevant documents to prove if the abortion and/or the abuse were reported, as Dr. Caitlin Bernard had requirements to do both under Indiana law. The failure to do so constitutes a crime in Indiana, and her behavior could also affect her licensure. Additionally, if a HIPAA violation did occur, that may affect next steps as well. I will not relent in the pursuit of the truth.”
These were the words Indiana Attorney General Todd Rokita issued in a statement following news an abortion was performed by Dr. Caitlin Bernard on a ten year old rape victim in the state of Indiana. The story garnered headlines for all the wrong reasons.
First anti-abortion activists and media outlets decried the story as a hoax. A few days later, it was verified. Then the same folks who called it a hoax went after the physician who performed the procedure and called her – in no uncertain terms – a criminal. To the physician’s credit, she fought back. Dr. Bernard lawyered up and sent a cease-and-desist letter to Indiana Attorney General Todd Rokita.
“Your false and defamatory statements to Fox News on July 13, 2022, cast Dr. Bernard in a false light and allege misconduct in her profession…”
In response, a spokesperson for Rokita’s office wrote in an email that the cease-and-desist letter will be reviewed when it arrives but denies any wrongdoing.
“No false or misleading statements have been made.”
The story will probably fizzle out and it is unlikely Indiana’s Office of Attorney General will pursue any investigation or take any legal action. Dr. Bernard followed all state guidelines and reporting practices as mandated. She committed no crime. She did not even violate any administrative protocol. And though she appears to be preparing a defamation lawsuit, it is unlikely to go anywhere either.
But that is not the point. What is concerning is that it became a story at all. Yes, rape is terrible. Yes, Americans are divided on the morality of abortions. But what Rokita did in targeting Dr. Bernard is the worst sin by far in this entire debacle.
He effectively created a precedent to target physicians by using the pretense of law to inflict punishment on physicians practicing clinical medicine. Notice he never challenged the procedure itself. He never questioned whether the abortion was legal. He questioned whether Dr. Bernard complied with the state’s reporting standards or violated patient privacy laws, all of which are tangential to the actual care itself.
Such administrative measures are in place to ensure good clinical practices. They should uphold a standard of care, not dictate the course of clinical care. But when Rokita targeted Dr. Bernard, he turned those measures into legal weapons, effectively converting them into punitive tactics that can be used against physicians.
Make no mistake; this will affect abortion providers in Indiana and across the country. Politically ambitious lawmakers and prosecutors will seize the opportunity to use legal oversight as a proxy for criminality to target physicians, and garner career enhancing convictions in the process. It is no secret the risk of legal liability drives clinical behavior. Just ask any physician who has faced a malpractice lawsuit.
It changes the way physicians think and the way they provide care. But not in ways that are immediately obvious. The real effect is felt among other physicians and throughout the medical community.
Think of it like herd behavior. When one physician is disgraced and humiliated, the shame reverberates across all of medicine. Nobody wants to be the next physician who gets shamed, so nobody acts in a way that remotely resembles the behavior of the physician being castigated.
We have few legal remedies in medicine that equate fair legal liability for medical errors or physician misconduct. Instead, the law has resorted to scorched earth tactics to destroy physicians. Such tactics punish other physicians by instilling a palpable sense of dread that seeps into every clinical decision made.
Most physicians respond by either avoiding any similar circumstance. But of late, some have mustered a semblance of legal fortitude, as with Dr. Bernard. But few carry her gumption. Most would rather avoid any legal liability or any unwelcomed limelight. And who can blame them? Physicians never asked to be pawns in a political game of power.
Yet life has a funny way of imposing itself. These legal impositions into medicine show no signs of abating and might actually get worse. It will adversely affect the profession of medicine and direct clinical care in ways we have yet to grasp. Ultimately, patients will be the ones who suffer when law targets physicians.