States to allow physicians insurance in case of abortion prosecution

Health care providers in Washington and Idaho will soon be able to get insurance reimbursements for defending themselves against criminal charges for providing abortions and other direct patient care. 

Insurance commissioners in both states approved a request from Physicians Insurance – the largest insurer of physicians and rural, critical access hospitals in the Pacific Northwest – to add criminal defense coverage as of Jan. 1. 

The approvals are part of a flurry of new state policies aimed at protecting health care providers from criminal prosecution under abortion restrictions enacted in the months since the Supreme Court issued its decision overturning the constitutional right to an abortion. 

Medical professional and hospital liability policies typically exclude coverage for criminal actions.  But state officials, health care providers and abortion rights advocates applauded the change, saying that allowing insurance companies to cover criminal defense costs could help counter some of the uncertainty surrounding the way states will enforce abortion bans. 

Abortion remains legal in Washington until fetal viability, but Idaho is one of nine states that have banned all or most abortions in the months since the Supreme Court’s decision overturning Roe v. Wade. The two states share a border, and Washington abortion providers have been preparing for a potential influx of patients from next door.

“When you have an insurance product that could cover legal costs, whether that is used or not, it can at least provide reassurance to physicians, because that’s what we really need: We need physicians to know that they will be protected as long as they are practicing good medicine.” said Nariman Heshmati, an OB-GYN and the president-elect of the Washington State Medical Association. 

The insurance change also reflects a growing consensus that holding medical providers liable for errors could be contributing to physician burnout, staffing shortages and supply-chain issues that have been exacerbated by the COVID pandemic.

“We believe they are innocent until proven guilty and have a right to defend their care,” said Robin Coggins, a Physicians Insurance spokeswoman. 

Physicians Insurance has requested similar approvals in Alaska and Oregon and could offer the coverage in other states across the country where the company does business. The company would be the first in the country to expand its malpractice offerings to respond to the Dobbs decision, Coggins said.

“This is an insurance decision, but it’s part of the package of policies that are being put in place in progressive states to ensure access to abortion, and part of ensuring access to abortion is ensuring that there are providers available,” said Elizabeth Nash, a state policy analyst at the Guttmacher institute, a research organization that advocates for abortion rights, “It is really difficult to know exactly what kind of protections need to be put in place, and will be sufficient..There are just so many unanswered questions.”

A number of state abortion bans that have taken effect since the July ruling would charge abortion providers with some class of felony. Punishments in those bills include fines, prison time and revocation of medical licenses. 

There have been no reported cases of charges filed against health care providers. But complaints abound from people who say they have been denied care from doctors concerned about potential prosecution. And the country’s two largest pharmacies, Walgreens and CVS, have updated company policies to allow pharmacists to deny medication to someone they think could be circumventing abortion laws by causing a miscarriage. 

Meanwhile, lawmakers in states where support for abortions rights is strong have rushed to pass laws that would protect health care providers and blunt the impact of the bans. 

New York prohibited medical liability insurers from taking adverse action against health care providers who perform abortions. New York and Nevada prohibited medical misconduct charges for reproductive health care. Massachusetts and Hawaii have prohibited executive agencies from assisting with investigations or legal proceedings mounted by other states related to health care services. Connecticut passed a law that allows individuals to go to court to recoup damages for any out-of-state judgment related to abortion services legal in the state.

Opponents of abortion rights say that such laws are driven by Democrats who are hoping that backlash to the Dobbs decision could help increase their chances in the midterm elections. National Republicans – who almost unanimously support abortions restrictions – have stressed that their party does not want to throw doctors or women in jail. But some Republicans, most notably Sen. Lindsey Graham (R-S.C.), have proposed criminal penalties for health care providers. 

National Right to Life didn’t respond to a request to comment for this article and a spokesman for the Thomas More Society, a conservative law firm that often represents anti-abortion clients, declined to comment. But those groups and other prominent abortion opponents have said that they are hoping they won’t have to resort to criminal prosecution for medical providers. 

Peter Breen, vice president and senior counsel for the Thomas More Society, told the New York Times this month that his group is telling legislators that criminal prosecution won’t be necessary to curb abortion providers in states where the procedure remains legal – all it will take is a few high-profile damage awards in civil suits. 

“Licensed professionals are not in the business of violating the law,” he told the paper. “You have too much to lose.”

Heshmati, of the Washington State Medical Association,  said many of his colleagues are anxious about what kind of care they are allowed to provide, especially to patients traveling from states where abortion is illegal. 

“Uncertainty is never a good thing in health care,” he said. “You want, as a physician, to be able to focus on the patient in front of you.”

Washington State Insurance Commissioner Mike Kreidler (D) expedited approval of the insurance coverage request. 

“My office will do everything it can to counter attacks on reproductive health and the physicians who provide essential care,” Kreidler said in a statement. “As states like Texas threaten legal and criminal action against physicians, the OIC is determined to counter this by assisting medical malpractice insurers wherever we can.”

The approved policy rider provides up to $250,000 in coverage to reimburse a covered provider for the legal costs spent successfully defending against criminal charges involving direct patient care. 

The coverage defines a criminal action as a criminal proceeding following an arrest or indictment, an official request for extradition or a criminal or regulatory investigation – including one conducted by a medical board.

Idaho began enforcing a ban in August on all abortions, with exceptions for the life of the pregnant person and for survivors of rape and incest who have reported the incident to law enforcement. 

But the state is prohibited from criminalizing medical providers who provide abortion care to pregnant people in emergency situations, pending the outcome of a federal Justice Department lawsuit against the state on the theory that the trigger ban violates the requirement of the federal Emergency Medical Treatment and Labor Act. 

Correction: This story was updated to remove California from the list of states where Physicians Insurance has also requested approvals.