regulation of Medicine
toolkit
Roe v. Wade Ruling: Guidance, Support and Resources for Physicians
October 4, 2022
Tennessee Abortion Law
Background
In 2019, Tennessee passed an abortion law banning abortions at any stage of development, regardless of viability. The law took effect on August 25, 2022, due to the overturning of Roe v. Wade.[1]
An abortion is only permitted in Tennessee if the mother is likely to die or suffer substantial and irreversible harm due to the pregnancy. Unlike other states with similar bans, Tennessee 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 Tennessee 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 the 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 with only one exception. |
Exception: A physician can perform an abortion if that physician, using reasonable medical judgment, determines an abortion is necessary for the preservation of the mother’s life or to prevent serious physical impairment of a major bodily function to the mother of the unborn child.[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 guilty of a class C felony must be imprisoned for not less than three years nor more than 15 years and can be fined up to $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 Tennessee’s abortion laws and specific tenets alert the reader of awareness and compliance. An example of this may be: “Adhering to Tennessee’s abortion law, 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 via your My Account page in MyMagMutual.
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 Tennessee’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] Tenn. Code Ann. § 39-15-213.
[4] Tenn. Code Ann. § 39-15-213.
[5] Tenn. Code Ann. § 39-15-213; Tenn. Code Ann. § 39-15-216; Tenn. Code Ann. § 40-35-111.
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.