The Arkansas Human Heartbeat Protection Act

Background

In 2021, Arkansas passed the Arkansas Human Heartbeat Protection Act banning abortions once fertilization occurs. The law was enjoined in July 2021, but went back into effect on June 24, 2022, upon the overturning of Roe v. Wade.^[1]

The only exception permitting abortion in Arkansas is if the abortion is intended to prevent the death of the unborn child’s mother. Unlike other states with similar bans, Arkansas does not make exceptions for cases of fetal abnormalities, incest, rape, or human trafficking.

As your professional liability insurance company, we believe it is important for you to understand how the Arkansas Human Heartbeat Protection Act may change your legal exposure.

Changes in Your Exposure [2]

The table below highlights some of the changes that you should be aware of as a physician, how they differ from prior law and potential implications for liability exposure.

New Provision

How Differs from Prior Law

Potential Exposure for MMIC Insureds

Abortions are illegal once fertilization occurs.^[3]

Note that removing ectopic pregnancies and deceased fetuses is allowed regardless of gestational age.

Abortions were previously legal up to the third trimester (generally 24 weeks after the mother’s last menstrual period).

Additional liability exposure exists for the physician because abortion care after fertilization is punishable by criminal and civil penalties except under one exception.

Exception: A physician can perform an abortion after fertilization only when the mother’s life is at risk due to the pregnancy.

This exception existed in prior law.

No new significant exposure.

Potential Penalties

Typically, medical liability policies do not cover violations of state law. A physician who violates this law by performing or attempting to perform an abortion is guilty of an unclassified felony with a fine not to exceed $100,000 or imprisonment not to exceed 10 years or both.^[4] Further, if the Arkansas State Medical Board determines that a violation occurred, the physician’s medical license will be revoked.^[5]

Civil penalties are also available in a limited capacity in Arkansas. The mother or father of the unborn child on whom an illegal abortion was performed may sue the physician for their performance of that procedure.^[6]

Guidance

Risk Management Techniques

The following risk management techniques can help physicians mitigate their liability in this area:

Ensure that the medical record and laboratory results support the physician’s clinical decision-making process. Referencing the Arkansas Human Heartbeat Protection Act and its specific tenets alert the reader of awareness and compliance. An example of this may be: “Adhering to the Arkansas Human Heartbeat Protection the abortion is necessary to prevent the death of the patient because of severe preeclampsia.”
Carefully review the hospital’s bylaws to ensure compliance with the facility’s rules regarding abortion and engage the hospital’s ethicist or medical ethics committee in challenging cases.
Ensure that the opinions about clinical impressions and medical necessity of abortion care are uniform across the healthcare team and that all providers document in the medical record in a consistent manner.
Some medical organizations recommend being as proactive as possible to potential patients with presentations that are not as straightforward. Some organizations are recommending that hospitals create a task force (including a lawyer familiar with applicable regulatory law, a physician and a maternal fetal medicine specialist) and an on-call representative to address these emergency situations that may not fit clearly within the legislation. This committee should be afforded the necessary legal protections.

Support

At MagMutual, we have always stood by our physicians and always will. You are our owners and we exist to serve and support you. If you're a MagMutual policyholder and have questions about how a particular situation in your practice may be impacted by this law, please contact us in MyMagMutual via your My Account page.

MagMutual Resources

Roe v. Wade Overruled: What MagMutual's PolicyOwners Need to Know Now

[1] The case, Edwards v. Beck, upheld Roe v. Wade in Arkansas until Dobbs v. Jackson Women’s Health Organization overturned the 49-year precedent set in Roe by declaring that the Constitution does not confer any right to abortion and that abortion care should be left to the states to decide.

[2] This article and the information contained herein does not constitute legal advice and cannot replace legal advice. It does not summarize all of the changes to the current requirements nor all of the obligations contained the Arkansas Human Heartbeat Protection Act. We strongly urge you to contact your personal attorney for a detailed account of, and legal advice pertinent to, all the specific changes, requirements and consequences. This article is strictly for informational purposes. Nothing in this article shall create any type of attorney-client relationship.

[3] Ark. Code Ann. § 5-61-304.

[4] Ark. Code Ann. § 5-61-304.

[5] Ark. Code Ann. § 20-16-1304.

[6] Ark. Code Ann. § 20-16-1408.

Disclaimer

The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.