Georgia Heartbeat Act (LIFE Act)

Background

In 2019, Georgia passed its Living Infants Fairness and Equality (LIFE) Act, banning abortions once a heartbeat is detected, which is usually around six weeks of gestation. Even though the law was enjoined in 2020, on July 20, 2022, an Appeals Court of the 11^th Circuit ruled that the law may now take effect due to the overturn of Roe v. Wade.^[1]

Once a heartbeat is detected, this law restricts abortion care to the following scenarios:

Abortion is necessary to prevent death or serious harm to the pregnant woman regardless of gestational age.
Cases of rape and incest up to 20 weeks, but they require filing an official police report of the incident.
Medically futile pregnancies, including fetal anomalies that are known to be terminal after birth despite life-sustaining measures.

As your professional liability insurance company, we believe that it is important for you to understand how the LIFE 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.

New Provision	How Differs from Prior Law	Potential Exposure for MMIC Insureds
Abortions are illegal once a fetal heartbeat has been detected, which usually occurs around six weeks of gestation, unless an exception applies.^[3] Note that removing ectopic pregnancies and deceased fetuses are allowed regardless of gestational age.	Abortions were previously legal up to the 20th week of pregnancy.	This increases liability exposure for the physician because abortion care after a detectable heartbeat is punishable by criminal and civil penalties except in very specific conditions.
Exception 1: A physician can perform an abortion after a fetal heartbeat has been detected if the mother is likely to die or suffer substantial harm. Additionally, the physician must report to the Department of Public Health: The probable gestational age of the fetus; The method of abortion used; The existence of a medical emergency.	This exception existed in prior law, but adds the reporting requirement.	This 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 a fetal heartbeat has been detected if the pregnancy is the result of rape or incest, and the age of the fetus is less than 20 weeks. If fetus is more than twenty weeks old, this exception does NOT apply. An official police report must have been filed alleging the rape or incest. Additionally, the physician must report to the Department of Public Health: The probable gestational age of the fetus; The method of abortion used; The pregnancy was the result of rape or incest.	Prior law did not mention what happens in cases of rape or incest.	This increases liability exposure because it requires that the physician knows the age of the fetus is less than 20 weeks.
Exception 3: A physician can perform an abortion after a fetal heartbeat has been detected if the pregnancy is medically futile, meaning that the fetus cannot sustain life after birth. Additionally, the physician must report to the Department of Public Health: The probable gestational age of the fetus; The method of abortion used; The basis of the determination that the pregnant woman had a medically futile pregnancy.	This exception existed in prior law, but adds the reporting requirement.	No new significant exposure because the law still requires physicians to determine if a fetal anomaly exists by using reasonable medical judgment. However, the physician must report the basis of the determination that the pregnancy was medically futile.

Potential Penalties

Typically, medical liability policies do not cover violations of state law. A person who violates this law is guilty of a misdemeanor of a high and aggravated nature and, upon conviction, must be punished by imprisonment for not less than one nor more than 10 years.

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 LIFE Act and specific tenets alert the reader of awareness and compliance. An example of this may be: “Adhering to the LIFE Act, 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 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 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 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.

[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 in the LIFE 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] Ga. Code § 16-12-141.

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.