Viewpoint: Abortion ruling alters risks

The U.S. Supreme Court decision to overturn Roe v. Wade has been in place for less than a year and already it’s clear the liability environment for medical professionals and their insurers is far from straightforward and in some ways is becoming more complicated.

The June 24, 2022, ruling in Dobbs v. Jackson Women’s Health Organization overturned the 50-year-old Roe v. Wade decision and held there is no constitutional right to an abortion in the United States.

Since then, various state laws related to abortion have gone into effect, and numerous legislatures around the country continue to introduce bills. More than a dozen states have a complete abortion ban, some ban abortion after a specified point in the pregnancy, and some require a waiting period. There are also states where abortion remains legal while courts decide whether bans can take effect.

The uncertain and evolving legal environment leaves doctors, nurses and many other medical professionals — those on whom women depend for their medical expertise and to provide a standard of care — in a precarious position.

The implications for abortion providers are clear — if they are providing services in a state where abortions are banned, they are breaking the law. For other medical providers, though, such as OBGYNs and emergency department physicians, the legal and liability environment is murky. 

The risks should not be underestimated. Doctors and other practitioners that perform nonroutine or emergency abortions — for example to preserve the lives of mothers — potentially could face jail time, fines and/or loss of their medical licenses in some states, if courts disagree with their assessment of the medical necessity of the procedure. We’ll have to wait for cases to go to trial to know for sure. Meanwhile, health care providers and their employers face the prospect of criminal actions and lawsuits.

As we report here, medical malpractice insurers are trying to make sense of the shifting legal landscape, and gray areas or gaps in coverage are emerging. For example, some policies may cover seizures of documents, or provide sublimits for defense of a criminal action or defense of a licensing procedure. Some policies have affirmative exclusions, while others expand coverage.

How this uncertain situation takes the medical profession and medical malpractice insurance coverage forward remains to be seen. Since 1973, when the Roe v. Wade decision came down, advances in diagnostics and technology have led to transformative changes in health care. Consider the surgeries that are now performed with robotic assistance and the many diagnoses that can be made at much earlier stages, all of which have helped improve patient care and medical outcomes.

Still, medical malpractice claims have been growing in frequency and severity in recent years, as various factors such as abuse and neglect claims, COVID-19, so-called nuclear jury awards, and the staffing crisis continue to impact the health care sector.

Through all of this, and as the fallout from the Dobbs ruling evolves, the need for effective risk management plans and adequate insurance coverage has never been greater. As medical professionals make crucial medical decisions amid shifting state laws, it’s critical that hospitals and medical practices support their employees and remain focused on mitigating risk. Med mal insurers, too, need to figure out a way to partner with their policyholders and to provide sustainable coverage that can adapt to changing risks.