Regulation of Medicine
The South Carolina Heartbeat Act: Guidance, Support and Resources
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, 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
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.
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.|
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.
Additionally, the physician must state in writing:
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.
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.
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.
Prior law does not mention contraception.
No new liability exposure.
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. 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.
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.
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 have questions about how a particular situation in your practice may be impacted by this law, please contact firstname.lastname@example.org.
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