As legal battles highlight the ongoing conflict between state abortion restrictions and federal laws requiring doctors to provide treatment in emergencies, physicians and their medical malpractice insurers are caught in the middle, experts say.
While there are no publicized cases of physicians being sued for failing to provide an abortion to save the life of the mother, or in other emergencies, at least two hospitals have been sued, and the exposure is a concern, the experts say.
Doctors are advised to stay on top of the changing legal environment as new laws and amendments are introduced.
The U.S. Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization, which overturned the 1973 Roe v. Wade decision and held there is no constitutional right to an abortion, launched a wave of state laws across the country banning abortion. With some variances in the gestational age of the embryo or fetus, 41 states have provisions in place, and of them, 12 states ban the procedure altogether.
The issues are evolving with case law and proposals to clarify existing laws, experts say.
In 2024 the Supreme Court in Moyle v. United States, also known as Idaho v. United States, effectively reinstated a lower court’s order that allows hospitals in Idaho to perform emergency abortions when necessary to save a woman’s life or preserve her health. The decision means Idaho’s near-total abortion ban cannot be enforced in situations where it conflicts with the federal Emergency Medical Treatment and Labor Act, which requires hospitals to provide stabilizing treatment for emergency conditions, including those related to pregnancy.
Also last year, in Zurawski v. State of Texas, the Texas Supreme Court rejected claims of 20 women who sued the state, saying they had been denied abortions despite dangerous pregnancy complications. That decision effectively failed to provide clarity on the medical exception to the state’s abortion ban.
In 2023, federal investigators with the Centers for Medicare and Medicaid Services found that two hospitals in Missouri and Kansas violated federal law by refusing to provide an abortion to a woman whose water broke at 17 weeks. Last year the woman sued the two hospitals for failing to provide care.
As of mid-2025, no doctors have been sued, but some experts say it could be a matter of time. Because medical malpractice claims tend to be long-tail, it could be years before any are filed, said Melissa Cunningham, Seattle-based senior vice president and general counsel with Physicians Insurance.
Doctors are “in a damned-if-you-do, damned-if-you-don’t situation, because if they don’t treat, they could be sued for not treating. But if they do, they could be facing criminal allegations,” said Jeff McDonald, Chicago-based executive vice president of TDC Specialty Underwriters, part of medical malpractice insurer The Doctors Co.
Questions remain over whether a plaintiff can claim a doctor failed under his or her duty under federal law requiring emergency care despite a state’s abortion ban, according to Dr. Diana Nordlund, Grand Rapids, Michigan-based emergency physician and former malpractice defense lawyer. The situation is “a conundrum” for the medical establishment, said Dr. Nordlund, past chair of the medical-legal committee of the American College of Emergency Physicians.
The Dobbs decision “created a significant challenge for physicians who, first and foremost, are adhering to their training and what that dictates; the first rule is, do the right thing for the patient,” she said. Given the fear of facing criminal charges, “there’s a lot of opportunity for things to go wrong.”
Several excess and surplus lines insurers have created products to cover doctors for legal costs (see related story below).
The med mal exposure stems from whether a doctor exercised the required “duty of care,” as outlined in evidence-based care and subject to legal guidelines, which often becomes a basis for a lawsuit, Ms. Cunningham said. “This risk is something the industry is concerned with,” she said.
Complicating the issue, many states have “vague or undefined language” in their anti-abortion laws, said Rodrigo Lugo, a Denver-based medical malpractice defense lawyer with Hall Booth Smith.
“(S)everal states proscribe or restrict abortions except for ‘medical emergencies,’” Mr. Lugo said in an email. “They then define a medical emergency as a situation creating a ‘substantial risk of impairment to a major bodily function.’ But these standards still leave much room for interpretation as to what qualifies as a ‘medical emergency,’ what is a ‘substantial risk’ and what is a ‘major bodily function.’”
The lack of case law for guidance creates a situation where health care providers “must use their discretion when evaluating and treating their patients,” he wrote.
The lack of precedent on the issue adds to concerns, said Daniel Tranen, St. Louis-based regional managing partner at insurance defense firm Wilson Elser.
In the wake of state abortion bans, “there isn’t necessarily a standard of care that a doctor can fall back on, or a hospital can fall back on, and so you’re left with this risk,” Mr. Tranen said.
A best practice for physicians is to stay informed about the laws, he said. “It’s different from jurisdiction to jurisdiction, and the laws are changing, and so you have to stay on top of it,” he said.
For example, a bill introduced June 20 in Texas aims to clarify the state’s abortion law, providing guidelines for physicians facing emergencies.
Insurers promote coverage for doctors’ criminal defense in abortion cases
Insurers have begun promoting insurance to cover physicians’ criminal defense costs in the wake of the Dobbs decision, which led to abortion bans across the country and increased the risk that doctors may face criminal charges for providing abortions in emergencies.
“The uncertainty and the ambiguity of the various state laws is creating quite a quagmire for reproductive health providers; whether they can deliver what was historically the standard of care is coming into question with the various state laws,” said Susan Angelo, Boston-based senior vice president, managed care segment leader, for TDC Specialty Underwriters, part of The Doctors Co.
This “uncertainty and dilemma” for providers is leading medical malpractice insurers to create policies covering reproductive health defense, she said. TDC’s product is now offered to existing policyholders, she said.
Such products can help close gaps created by abortion restrictions and keep doctors in those states working without fear of prosecution, said Melissa Cunningham, Seattle-based senior vice president and general counsel with Physicians Insurance, a med mal insurer that provides similar coverage for criminal defense.
Some states “are having trouble retaining and attracting those types of physicians because of the state of the law in those jurisdictions and their concern about their ability to practice without fear of criminal prosecution,” she said.
This article was first published in Business Insurance
