regulation of Medicine
Roe v. Wade Ruling: Guidance, Support and Resources for Physicians
September 2, 2022
Florida’s Reducing Fetal and Infant Mortality Act
In July 2022, Florida passed a bill banning abortions 15 weeks after the mother’s last menstrual period in response to the overturning of Roe v. Wade. The law limiting abortion in Florida remains in effect at the time of this publication although the law is currently being contested by a Florida State Court.
An abortion is only permitted after 15 weeks if the mother is likely to die or suffer substantial and irreversible harm or if the fetus has not achieved viability after the 15-week period. Unlike other states with similar bans, Florida does not make exceptions for cases of incest, rape or human trafficking.
As your professional liability insurance company, we believe that it is important for you to understand how Florida’s Reducing Fetal and Infant Mortality Act may change your legal exposure.
Changes in Your Exposure 
The table below highlights some of the changes that you should be aware of, how they differ from prior law and potential implications for liability exposure.
How Differs from Prior Law
Potential Exposure for MMIC Insureds
Abortions are illegal 15 weeks after the mother’s last menstrual period.
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).
The shorter timeframe to perform an abortion increases liability exposure for the physician because abortion care after 15 weeks is punishable by criminal penalties except under specific exceptions.
Exception 1: A physician can perform an abortion after 15 weeks if the mother is likely to die or suffer substantial and irreversible harm. Harm to the mother does not include psychological conditions.
In most cases, two physicians must certify the necessity for the abortion in writing using reasonable medical judgment. In cases where another physician is not available for consultation when an abortion is needed for a legitimate emergency medical procedure, one physician can certify the imminent need in writing using reasonable medical judgement.
This exception existed in prior law.
This exception increases liability exposure for the physician because they have additional reporting requirements explaining that a medical emergency existed by using reasonable medical judgment.
Exception 2: A physician can perform an abortion after 15 weeks if the fetus has not achieved viability.
Two physicians in writing must assert that the fetus has not achieved viability. Viability must be determined, at minimum, by the performance of a medical examination of the mother and by an ultrasound examination of the fetus. The physician must document their determination of the fetus’s viability and their method, equipment, fetal measurements and any other information used to determine viability in the mother’s medical file.
This exception did not exist under the prior law.
This increases liability exposure for the physician because they have additional reporting requirements explaining that a fetus had not achieved viability by using reasonable medical judgment.
Typically, medical liability policies do not cover violations of state law. A physician who violates this law by willfully performing or actively participating in an abortion is guilty of a third degree felony. Third degree felonies are punishable by up to five years in prison and a fine of up to $5,000. A physician who performs an abortion that results in the death of the mother is guilty of a second degree felony. Second degree felonies are punishable by up to 15 years in prison and a fine of up to $10,000.
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 Florida’s Reducing Fetal and Infant Mortality Act and its specific tenets alert the reader of awareness and compliance. An example of this may be: “Adhering to the Florida’s Reducing Fetal and Infant Mortality Act ( Stat. § 390.0111) the abortion is necessary to prevent the death or serious risk of a substantial physical impairment 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 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.
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.
 The case Dobbs v. Jackson Women’s Health Organization overturned the 49-year precedent set in Roe v. Wade, declaring that the Constitution does not confer any right to abortion and that abortion care should be left to the states to decide.
 On July 5, 2022, the Leon County Circuit Court for the Second Judicial District of Florida issued an order temporarily halting the 15-week ban on abortion, but the state appealed the order automatically putting the law back into effect.
 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 in Florida’s Reducing Fetal and Infant Mortality 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.
 Fla. Stat. § 390.0111.
 Fla. Stat. § 390.01112.
 Fla. Stat. §§ 775.082-3.
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.