The South Carolina Heartbeat Act

Background

Update: As of October 31, 2022, the South Carolina Fetal Heartbeat Act has been put on hold and the previous abortion law is back in effect, permitting abortive care up to 20 weeks. The hold will remain until the South Carolina Supreme Court rules on the constitutionality of the Fetal Heartbeat Act.

In February 2021, South Carolina passed its Fetal Heartbeat Act, banning abortions once a heartbeat is detected, which is usually around six weeks of gestation. Due to the overturning of Roe v. Wade,^[1] this trigger law is now in effect unless it is challenged or put on hold due to pending litigation.

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, but it requires specific documentation describing the medical condition, necessity and rationale leading to the abortion. It may be prudent to include the exact verbiage of the act in your documentation to demonstrate awareness and compliance with the requirements.
Cases of rape and incest up to 20 weeks, but it requires both reporting to a sheriff within 24 hours and, before an abortion, disclosure of the sheriff reporting requirement to the pregnant woman.
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 Fetal Heartbeat Act may change your legal exposure.

Changes in Your Exposure [2]

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, unless an exception applies.^[3]	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 charges and 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.^[4] Additionally, the physician must state in writing:^[5] That the procedure was necessary, by reasonable medical judgment, to prevent the death or serious harm to the pregnant woman; The pregnant woman's medical condition; and The medical rationale for the necessity of the abortion. The physician must also keep this document in the patient’s medical records and maintain a copy in their own records for at least seven years.^[6]	This exception existed in prior law, but adds the written documentation requirement.	This increases liability exposure for the physician because they have additional documentation requirements justifying their reasoning for the abortion. The physician must prove their medical judgment was reasonable.
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 the fetus is more than 20 weeks old, this exception does NOT apply. Additionally, the physician must report the allegation of rape or incest to the sheriff in the county in which the abortion was performed no later than 24 hours after the procedure. The report can be made orally and must include the name and contact information of the pregnant woman. Before the abortion, the physician must notify the pregnant woman that the physician will report the allegation to the sheriff.^[7]	Prior law did not mention what happens in cases of rape or incest.	This increases liability exposure because not only does it create new obligations to report the rape or incest and to notify the pregnant woman of the report, it also 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 certain fetal anomalies exist.^[8]	No change. This exception existed in prior law.	No new significant exposure because the law still requires physicians to determine if a fetal anomaly exists.
This law does not prohibit the use of any contraception.^[9]	Prior law does not mention contraception.	No new liability exposure.

Potential Penalties

Typically, medical liability policies do not cover violations of state law. A person who violates this law is guilty of a felony and, upon conviction, must be fined $10,000, imprisoned no more than two years, or both.^[10] Additionally, this law targets the physicians performing abortions; a pregnant women who receives an abortion cannot be criminally prosecuted and is not subject to a civil or criminal penalty.^[11]

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 Fetal Heartbeat Law and specific tenets alert the reader of awareness and compliance. An example of this may be: “Adhering to the Fetal Heartbeat and Protection from Abortion 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, use any checklists developed by the hospital or state-mandated templates regarding abortion care, 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.
Be as proactive as possible concerning potential patient presentations that aren't straightforward when it comes to the law. 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 letter 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 Fetal Heartbeat 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 letter is strictly for informational purposes. Nothing in this correspondence shall create any type of attorney-client relationship.

[3] Fetal Heartbeat and Protection from Abortion Act Section 44-41-680(A).

[4] Fetal Heartbeat and Protection from Abortion Act Section 44-41-690(A).

[5] Fetal Heartbeat and Protection from Abortion Act Section 44-41-690(B).

[6] Fetal Heartbeat and Protection from Abortion Act Section 44-41-690(C).

[7] Fetal Heartbeat and Protection from Abortion Act Section 44-41-680(C).

[8] Fetal Heartbeat and Protection from Abortion Act Section 44-41-430(2)(5).

[9] Fetal Heartbeat and Protection from Abortion Act Section 44-41-720.

[10] Fetal Heartbeat and Protection from Abortion Act Section 44-41-680(D).

[11] Fetal Heartbeat and Protection from Abortion Act Section 44-41-730.

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.