Louisiana Abortion Law

Background

In June 2022, Louisiana passed a new abortion law banning abortions at any stage of development, regardless of viability. Even though this law was enjoined in June 2022, on July 29, 2022, the Louisiana Court of Appeals ruled that the law may now take effect due to the overturning of Roe v. Wade.^[1]

An abortion is only permitted in Louisiana if the mother is likely to die or suffer substantial and irreversible harm due to the pregnancy or if the unborn child is unlikely to survive after birth. Unlike other states with similar bans, Louisiana does not make exceptions for cases of incest, rape or human trafficking.

As your professional liability insurance company, we believe it is important for you to understand how Louisiana 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 at any stage of development, regardless of viability unless an exception applies.^[3] Note that removing ectopic pregnancies and deceased fetuses is 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 any stage of development is punishable by criminal penalties.
Exception 1: A physician can perform an abortion if that physician determines an abortion is necessary for the preservation of the mother’s life or to prevent a serious health risk to the mother of the unborn child. The law states that the physician must make reasonable medical efforts to preserve both the life of the mother and the unborn child in a manner consistent with reasonable medical practice.^[4]	This exception existed in prior law.	No new significant exposure.
Exception 2: A physician can perform an abortion if the unborn child is deemed to be “medically futile,” meaning the child will most likely not survive after birth. The diagnosis shall be certified by another qualified physician.^[5] Upon the completion of the procedure, the physician shall submit an abortion report that includes appropriate evidence of the certified diagnosis.^[6]	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 must be imprisoned for not less than one year nor more than 10 years and must be fined not less than $10,000 nor more than $100,000^[7]

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 Louisiana’s abortion laws and specific tenets alert the reader of awareness and compliance. An example of this may be: “Adhering to Louisiana’s abortion laws, 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] 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 Louisiana’s abortion laws. 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] LA R.S. 14:87.7.7(A).

[4] LA R.S. 14:87.1(1)(a)(v).

[5] LA R.S. 14:87.1(1)(a)(vi).

[6] See LA R.S. 40.1061.21 for the list of items that must be included in the report.

[7] LA R.S. 14:87.7(C).

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.