Texas Heartbeat Act

Background

In 2021, Texas passed the Heartbeat Act, banning abortions after a heartbeat is detected, which is usually around six weeks after the mother’s last menstrual period. The law was deemed unconstitutional that same year, but went back into effect on August 25, 2022, upon the overturning of Roe v. Wade.^[1]

The only exception permitting an abortion after a fetal heartbeat is detected is if the abortion is intended to prevent the death of the mother. Unlike other states with similar bans, Texas does not make exceptions for cases of fetal abnormalities, incest, rape or human trafficking.

As your professional liability insurance company, we believe that it is important for you to understand how the Texas 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.[3]

Note that removing ectopic pregnancies and deceased fetuses are allowed regardless of gestational age.

Abortions were previously legal up to the third trimester (generally 24 weeks after the mother’s last menstrual period).

This increases liability exposure for the physician because abortion care provided after a detectable heartbeat is punishable by severe criminal and civil penalties except in very specific conditions.

Exception: A physician can perform an abortion after a fetal heartbeat has been detected only when the mother’s life is at risk due to the pregnancy.

Physicians performing abortions under this exception must make note in the mother’s medical file of their belief as to what medical emergency necessitated the abortion and the medical condition the mother has preventing her from compliance with the ban on abortion. The physician is required to keep a copy of this note in his or her office.[4]

This exception existed in prior law.

No new significant exposure exists because the law still requires physicians to determine that the mother’s life is at risk using reasonable medical judgment and to document this determination.

Potential Penalties

Typically, medical liability policies do not cover violations of state law. A physician who attempts an unsuccessful illegal abortion commits a second-degree felony carrying a penalty of not more than 20 years but not less than two years in prison and a fine of up to $10,000. A physician who successfully conducts an illegal abortion commits a first-degree felony carrying a penalty of life or for a term not more than 99 years or less than five years in prison and a fine up to $10,000.^[5]

Physicians in Texas should be especially wary of the civil penalties the law creates. The Texas attorney general is mandated to file a suit to recover not less than $100,000 for each illegal abortion.^[6] Further, the law creates a right for almost any person in the state to sue anyone who helps a mother of an unborn fetus obtain an abortion regardless of whether the person filing suit has a connection to the mother. The person filing the suit can sue for statutory damages and receive no less than $10,000 per illegal abortion and the costs of their attorney’s fees.^[7] This private right to suit could make Texas’s abortion law particularly well-enforced as compared to states with similar laws.

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 Texas Heartbeat Act and specific tenets alert the reader of awareness and compliance. An example of this may be: “Adhering to the Texas Heartbeat 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 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 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, United States v. Texas, upheld Roe v. Wade in Texas until Dobbs v. Jackson Women’s Health Organization overturned the 49-year precedent set in Roe by declaring that the Constitution does not confer any right to abortion and that abortion care should be left to the states to decide. The Texas Heartbeat Act went into effect 30 days after the release of the Supreme Court’s official judgment on July 26, 2022.

[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 Texas 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 article is strictly for informational purposes. Nothing in this article shall create any type of attorney-client relationship.

[3] Tex. Health & Safety Code §§ 171.204-12.

[4] Tex. Health & Safety Code § 171.205.

[5] Tex. Health & Safety Code § 170A.004; Tex. Penal Code § 3.12.

[6] Tex. Health & Safety Code § 170A.005.

[7] Tex. Health & Safety Code § 171.208.

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.