Kentucky Abortion Law

Background

In 2019, Kentucky passed a bill banning abortions at any stage of development after fertilization. The law was enjoined in 2019, but on August 1, 2022, the injunction was lifted due to the overturning of Roe v. Wade.^[1]

An abortion is permitted in Kentucky only if the mother is likely to die or suffer substantial injury due to the pregnancy. Unlike other states with similar bans, Kentucky 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 Kentucky abortion law 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 after fertilization 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 15th week of pregnancy.	This increases liability exposure for the physician because abortion care after fertilization is punishable by criminal penalties.
Exception 1: A physician can perform an abortion if the physician determines the operation is needed to prevent injury or death of the mother. When determining whether an abortion is necessary, a physician (either the referring physician or the physician providing abortion care) must perform a “private medical consultation” with the pregnant woman unless an abortion is needed because of a medical emergency. The physician must also describe the basis for the need for the abortion in a report to Kentucky’s Inspector General within three days after the end of the month in which the abortion occurred.^[4]	This exception existed in prior law.	No new significant exposure.
Exception 2: A physician treating a pregnant mother accidentally causes injury or death to the fetus.	This exception existed in prior law.	No new significant exposure.

Potential Penalties

Typically, medical liability policies do not cover violations of state law. A person who violates this law is guilty of a Class D felony and, upon conviction, must be imprisoned for not less than one year nor more than five years and can be fined between $1,000 and $10,000.^[5]

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 Kentucky’s abortion laws and specific tenets alert the reader of awareness and compliance. An example of this may be: “Adhering to Kentucky’s abortion laws, specifically Ky. Rev. Stat. § 311.772, 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 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] On June 24, 2022, 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. A lower court in Kentucky enjoined the Kentucky abortion law when it went into effect because of Dobbs, but the Kentucky Court of Appeals has granted a motion allowing the law to be implemented until the litigation is resolved.

[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 Kentucky’s abortion law. 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] Ky. Rev. Stat. § 311.772.

[4] Ky. Rev. Stat. § 311.723.

[5] Ky. Rev. Stat. § 532.060; Ky. Rev. Stat. § 534.030.

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.