regulation of Medicine
Roe v. Wade Ruling: Guidance, Support and Resources for Physicians
November 21, 2022
Oklahoma Abortion Law
In May 2022, Oklahoma passed new laws banning abortions in the state from conception until birth. The laws took effect on June 24, 2022, due to the overturning of Roe v. Wade.
An abortion is only permitted in Oklahoma if the mother is likely to die or suffer substantial and irreversible harm due to the pregnancy. Unlike other states with similar bans, Oklahoma does not make exceptions for fetal abnormalities, incest, rape or human trafficking.
As your professional liability insurance company, we believe it is important for you to understand how Oklahoma abortion law may change your legal exposure.
Changes in Your Exposure 
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.
How Differs from Prior Law
Potential Exposure for MMIC Insureds
Abortions are illegal from conception until birth, unless the exception applies.
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 and, in some cases, civil penalties.
Exception: 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.
Note that a physician performing an abortion under this exception must make and maintain a written notation in the pregnant woman's medical record of:
This exception existed in prior law.
No new significant exposure.
Typically, medical liability policies do not cover violations of state law. A person is guilty of a felony and must be imprisoned for not more than 10 years and fined not more than $100,000.
From a civil law perspective, the law empowers any citizen of Oklahoma to sue a physician conducting an illegal abortion for injunctive relief to prevent further violation, statutory damages not less than $10,000 for each violation by the defendant, performed or induced in violation of this act, further damages if the plaintiff has suffered harm from the defendant's conduct, and compensation for court costs and attorney fees.Private citizens cannot sue for abortions performed for a pregnancy that is the result of rape, sexual assault or incest and that have been reported to law enforcement.
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 Oklahoma’s abortion laws and specific tenets alert the reader of awareness and compliance. An example of this may be: “Adhering to Oklahoma’s abortion laws, the abortion is necessary to prevent the death or serious risk of 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.
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.
 Guidance for Oklahoma law enforcement following Dobbs v. Jackson Women’s Health Org. § 4, Oklahoma Attorney General.
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 Oklahoma’s new 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.
 Okla. Stat. tit. 63 § 1-731.3; Okla. Stat. tit. 63 § 1-745.34; Okla. Stat. tit. 63 § 1-745.51.
 Okla. Stat. tit. 63 § 1-745.35.
 Okla. Stat. tit. 63 § 1-731.4.
 Okla. Stat. tit. 63 § 1-745.39; Okla. Stat. tit. 63 § 1-745.55.
 Okla. Stat. tit. 63 § 1-745.52.
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.