The Indiana attorney general may gain the authority to override a prosecutor’s decision to not pursue abortion-related cases – or cases on any other issue that they do not persecute by matter of policy.
It’s an issue that some Indiana lawmakers have sought to address for the last several years but haven’t had the support to pass.
The state’s abortion debate may provide an opening. While meeting in special session Thursday night to discuss amendments to a proposed abortion ban, Senate Republicans adopted a proposal giving jurisdiction to the state attorney general in criminal cases “if the prosecuting attorney is categorically refusing to enforce” the law.
The move comes after Marion County Prosecutor Ryan Mears said last month that he would not prosecute abortion-related cases if Republicans in the state legislature seek to criminalize the procedure following the US Supreme Court’s ruling that overturns abortion rights. The Indiana General Assembly started meeting this week to do just that.
Senate Bill 1 would ban nearly all abortion in Indiana, making exceptions only in cases of rape, incest and when the life of the pregnant woman is at risk. While the original proposal would not have added criminal penalties, a Senate committee added new penalties after backlash from anti-abortion groups who thought the bill didn’t go far enough.
Under the current proposal, doctors who perform an illegal abortion could face one to six years in prison and a fine of up to $10,000. Those penalties line up with the penalties doctors face under current Indiana law for performing an abortion after 22 weeks after the last menstrual cycle.
In his last month statement, Mears said that prosecutors and law enforcement resources should not go toward abortion-related cases.
“It should not be a priority for the prosecutor’s office or law enforcement to second-guess the decision and choices made by health care professionals,” Mears said. “Everybody here realizes that we have a number of challenges in Marion County. One of those challenges is not incarcerating doctors and nurses.”
Mears, a Democrat, previously ranked legislative feathers when he announced that his office would no longer prosecute certain marijuana possession offenses in Marion County. The policy is at diverting resources to violent crimes, such as murder and sexual assault. The year after Mears’ announcement, Republicans began trying to pass laws to circumvent prosecutorial discretion.
Mears’ office did not respond to a request for comment.
While the Senate has passed such bills, they’ve never made it through the House. Now, though, that language will be attached to an abortion bill that House Republicans are motivated to get passed.
“The role of the prosecutor’s office in the state of Indiana is to prosecute crimes, all crimes,” said Sen. Aaron Freeman, an Indianapolis Republican who authored the amendment. “Their job is not to pick and choose which laws they’re going to enforce.”
Freeman’s amendment means that Attorney General Todd Rokita could end up with jurisdiction over abortion-related cases in Marion County.
Rokita has been accused of harassing the Indianapolis doctor who gave an abortion to a 10-year-old rape victim who traveled to Indiana for the procedure when she couldn’t receive one in her home state of Ohio.
Earlier this month, the lawyer for Dr. Caitlin Bernard sent a cease-and-desist letter to Rokita and a former Indiana University law dean filed a complaint against Rokita with the Indiana Supreme Court Disciplinary Commission after Rokita announced on Fox News that his office was investigating Bernard, a licensed OB-GYN whom he called an “abortion activist acting as a doctor.”
Rokita said Bernard had “a history of failing to report,” though he didn’t provide examples. He later questioned whether Bernard had violated HIPAA, which is federal law that protects patient privacy.
Indiana requires the immediate reporting of suspected child sexual abuse and physicians must report any abortion they perform on someone under age 16 to the state within three days. The day after Rokita’s interview, the Indiana Department of Health provided IndyStar with a copy of the 10-year-old’s terminated pregnancy report. It showed that Bernard reported the abortion before the state’s reporting deadline, and that Bernard indicated the 10-year-old had suffered abuse.
Indiana University Health, Bernard’s employer, also later said it investigated and does not believe Bernard violated privacy laws when she shared the anecdote of the 10-year-old with IndyStar.
Last week, DeLaney sent a tort claim notice to Rokita seeking unspecified damages for allegedly defaming Bernard. The notice is a first step toward a formal lawsuit.
Rokita, however, has not been backed down. DeLaney said Tuesday her office received a notice from the attorney general‘s office indicating that Rokita was still investigating Bernard.
This article originally appeared on Indianapolis Star: Indiana’s AG Rokita could get jurisdiction over abortion-related cases
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