We are already seeing the perverse effects of the Supreme Court’s recent decision to throw out decades of legal precedent and overturn the landmark decision in Roe v. Wade. Ancient abortion laws and recently enacted “trigger laws” have gone into effect, prohibiting medical professionals from performing abortions in states around the country. In one of the more egregious examples, a 10-year-old rape victim from Ohio was forced to leave the state and obtain an abortion in nearby Indiana, where an abortion ban is in the works but not yet passed. Indiana’s Attorney General publicly attacked the doctor responsible for offering the girl medical care. In response, the doctor has made moves to sue the AG, claiming defamation. If nothing else, the claim raises interesting questions about defamation, public figures, and when government officials may be sued for slander or libel.

Indiana doctor Caitlin Bernard, who provided the abortion services for the 10-year-old girl from Ohio, has moved to file a defamation lawsuit against Indiana Attorney General Todd Rokita. After Dr. Bernard helped the young girl, Rokita threatened the doctor with criminal charges. In a number of media appearances and press releases, the AG claimed that his office was investigating the doctor’s conduct, specifically with regard to whether she properly reported the abortion to the state’s departments of health and child services within the mandated time period.

Even after several media outlets conclusively proved Dr. Bernard satisfied all of her reporting and other regulatory duties, Rokita continued to publicly berate her and threaten criminal consequences. He stated: “The failure to constitutes a crime in Indiana, and her behavior could also affect her licensure.” He further asserted that Dr. Bernard was an “abortion activist acting as a doctor” and had a “history of failing to report” without any basis.

In response to the demonstrably false accusations, Dr. Bernard has filed a notice of tort claim indicating her intention to sue the Attorney General and his office for defamation. The notice triggers a 90-day period in which the state is meant to investigate the basis for the tort claim, after which the plaintiff may commence a lawsuit.

To prove a defamation claim, a plaintiff must show that a defamatory statement was made about the plaintiff, to the public, maliciously and without just cause or reason, and the statement harmed the plaintiff’s personal or professional reputation. Falsely accusing someone of a crime is a classic form of defamation and is considered defamation “per se” in Indiana, meaning actionable even without proving specific damages. Here, Dr. Bernard alleges that Rokita made several statements to the public directly accusing her of criminal activity (such as having a history of failing to report abortions) without any basis.

Defamation is notoriously difficult to prove under normal circumstances. If the statement is made about a private figure regarding a “newsworthy” matter or a matter of public concern, the defendant must have shown “actual malice,” which is defined as knowledge of falsity or reckless disregard as to truth or falsity. Defamation is subject to several privileges, including opinion and fair comment (the right to voice an opinion) and “fair reporting” (the right to rely on an official public document or statement by a public official). Statements made during judicial proceedings, those made by high government officials, and those made during political broadcasts or speeches are also privileged, meaning that the defamatory party cannot be sued. Such communications may be privileged even if the speaker acted with actual malice and knowledge of falsity.

Statements made by prosecutors in furtherance of a criminal investigation are likely privileged communications shielded from liability for defamation. That privilege may not be absolute, however. Depending on state law, “lower” government official statements may be subject only to a “qualified” privilege, which can be overcome by showing malice or recklessness. Moreover, it’s relevant whether the statements were made in an official capacity, as part of a criminal investigation, or recklessly uttered as a private citizen.

Dr. Bernard’s notice of tort claim argues that Rokita’s statements can form the basis of a defamation claim to the “extent that these statements exceed the general scope of Mr. Rokita’s authority as Indiana’s Attorney General.” The notice further alleges: “Statements that Dr. Bernard has a ‘history of failing to report,’ which Mr. Rokita indicated would constitute a crime, made in the absence of reasonable investigation, serve no legitimate law enforcement purpose. Given the current political atmosphere in the United States, Mr. Rokita’s comments were intended to heighten public condemnation of Dr. Bernard, who legally provided legitimate medical care.”

Whether Dr. Bernard has a colorable claim or the Attorney General’s statements will be shielded by privilege remains to be seen.