regulation of Medicine

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Roe v. Wade Ruling: Guidance, Support and Resources for Physicians

September 19, 2022

Mississippi Abortion Law

Background

In 2019, Mississippi passed a law banning abortion after a fetal heartbeat is detected, which is usually around six weeks. This law was enjoined in 2020 by Dobbs v. Jackson Women’s Health Organization. However, on July 7, 2022, the injunction was lifted due to the overturning of Roe v. Wade.[1]

An abortion is only permitted in Mississippi if the mother is likely to die or suffer substantial and irreversible harm due to the pregnancy or the mother was raped and reported the rape to the proper authorities. Unlike other states with similar bans, Mississippi does not make exceptions for cases of incest.

As your professional liability insurance company, we believe it is important for you to understand how Mississippi 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 a fetal heartbeat is detected, which usually occurs around six weeks after the mother’s last menstrual period.[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 it is necessary for the preservation of the mother’s life.

A physician performing an abortion under this exception must, in writing and under the penalty of perjury:

  1. Declare the abortion was necessary, to the best of the physician's reasonable medical judgment, to prevent death or substantial and irreversible impairment of the mother;
  2. Note the mother’s medical condition that the abortion will assertedly address; and
  3. Note the rationale for the conclusion that the abortion was necessary to prevent death or substantial and irreversible impairment of the mother.

The physician must place this documentation in the mother’s medical file. The physician must also keep a copy of this documentation in their own records for no less than seven years.

    This exception existed in prior law, but without the reporting requirement.

    Some new exposure exists because the law requires physicians to document how the mother’s life is at risk using reasonable medical judgment under the penalty of perjury.

    Exception 2: A physician can perform an abortion if the pregnancy was caused by rape. 

    In cases where an abortion is being performed due to rape, a formal charge of rape must have been filed with a law enforcement official.[4]  

      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.[1]

      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 Mississippi abortion law and specific tenets alert the reader of awareness and compliance. An example of this may be: “Adhering to Mississippi’s abortion law (Miss. Code § 41-41-34.1.), I declare, using my best reasonable medical judgment, 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

      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.