In 2013, Marlise Munoz collapsed while getting up to make a bottle for her son, and her husband rushed her to John Peter Smith Hospital in Fort Worth, Texas. Two days after doctors discovered a blood clot in her lungs, Marlise was declared brain dead. The hospital was unable to remove her ventilator because the Texas Advance Directive Act prohibited a doctor from withdrawing or withholding “life-sustaining treatment from a pregnant patient.” Despite her clearly expressed wishes never to be kept alive by machines under any circumstance, Texas law required Marlise’s body to be kept on organ-sustaining treatment until her 14-week-old fetus was delivered or died. Just last year, a Georgia woman, Adriana Smith, experienced brain death in her first trimester of pregnancy and, without the consent of her family, was kept on life support for three months due to Georgia’s strict ban on abortion once cardiac activity is detected. Regardless of their families’ objections and the patient’s previously documented wishes, state laws required hospitals to ignore a patient’s right to refuse unwanted treatment.
These recent cases bring forth an important discussion of the right to refuse unwanted medical treatment amongst pregnant persons. In Cruzan v. Director, Missouri Department of Health, the Supreme Court first recognized a constitutionally protected liberty interest in refusing unwanted medical treatment. In the event that a patient has lost their capacity to communicate their medical wishes, an individual may preemptively document their medical preferences through an advance directive. Advance directives are grounded in the doctrine of informed consent and respect for a patient’s autonomy, and they allow patients to express their values, goals, and treatment preferences and to designate surrogates to make good-faith medical decisions aligned with those preferences.
Although all states recognize an individual’s right to document their end-of-life wishes through an advance directive, nearly half of the states void those wishes based on a patient’s pregnancy status. Pregnancy exclusion laws are statutory provisions that limit the validity of an individual’s advance medical directive if a patient is pregnant. These exclusions fall broadly into four categories: “1) an advance directive is automatically invalid in the event of pregnancy; (2) an advance directive is invalid if it is “probable” or “possible” that the pregnancy can result in a live birth and/or the pregnancy is “viable” (3) an advance directive is valid even in the event of pregnancy in some circumstances; and (4) the state code does not mention pregnancy.” Legislators defend these restrictions based on assumptions that when an individual is documenting their end-of-life wishes, they fail to consider how pregnancy would affect their medical treatment preferences and under fetal personhood rationales. Fetal personhood laws refer to a category of laws that grant protections to unborn persons, often limiting reproductive rights such as access to abortion, contraception, or IVF. Fetal personhood laws, like pregnancy exclusions in advance directives, are justified under the state’s interest in preserving fetal life.
When the pregnancy exclusions are enacted, they strip patients and their families of their right to autonomous medical decision-making, free speech, and equal protection of the law. By compelling individuals who execute an advance directive to accept a provision that states they want their advance directive ignored if pregnant, the state is compelling individuals to express a certain view in violation of the First Amendment. The provisions further violate the First Amendment by preventing patients from detailing the kind of care they would want if they become incapacitated while pregnant. Pregnancy exclusion also violates the Equal Protection Clause by discriminating on the basis of gender, by voiding or severely limiting a person’s right to make medical decisions based on their capacity to become pregnant.
Fortunately, reform is possible. Some states like Colorado and Washington have removed pregnancy exclusions from their advance directive laws. Organizations like If/When/How: Lawyering for Reproductive Justice, Compassion Legal, Legal Voice, and Perkins Coie have successfully challenged pregnancy exclusions in some states and are continuing litigation in others. These organizations have successful litigation, with Courts finding the restrictions unconstitutional under the First and Fourteenth Amendments in Idaho and Michigan. Eliminating pregnancy exclusions in advance directives is a necessary step in ensuring that every individual retains their constitutional right to consent to or refuse medical treatment.