Living Will Pregnancy Exclusions Spur Constitutional Challenges

State laws preventing medical providers from honoring pregnant patients’ advance directives are facing renewed challenges from abortion-rights and end-of-life advocates who say the exclusions run afoul of state constitutional rights to direct one’s own health care.

All 50 states have laws regulating the directives, also known as living wills. But over half include “pregnancy exclusions,” making them ineffective for patients who opted out of life-sustaining care or designated a person to make that decision for them before becoming pregnant.

The tension between those exclusions and constitutional rights isn’t new, but the fight over federal abortion rights—which culminated with the US Supreme Court overturning those rights in 2022’s Dobbs v. Jackson Women’s Health Organization—deflected attention from it for several years.

But Dobbs also generated confusion over medical treatments for pregnant people. For example, a patient declared brain dead while nine weeks’ pregnant was kept on life support until her baby was born because of questions about whether letting her die would violate Georgia’s post-Dobbs six-week abortion ban.

It wasn’t clear if she had an advance directive, but Georgia has a pregnancy exclusion anyway.

Now, cases are pending against pregnancy exclusions in Michigan’s and Kansas’ living will laws—with a state court set to hear arguments on a motion to dismiss the Kansas case Dec. 8.

Attorneys expect more litigation will follow.

“There absolutely will be more cases” once there’s more awareness, said Jess Pezley, a senior staff attorney at Compassion & Choices, which advocates for individual choice in end-of-life decision making.

Most people have no idea these exclusions exist, said Pezley, whose organization represents the plaintiffs in both cases along with If/When/How, a reproductive justice group.

Exclusions vary from state to state, but they all conflict with fundamental rights to medical decision making recognized under the federal and state constitutions, said Sara Ainsworth, If/When/How’s chief legal and policy director.

“No one should lose their rights just because they’re pregnant,” she said.

The exclusions, however, have existed nearly as long as the living will statutes themselves, with religious groups pushing states to include the measures since the 1980s, said Jessica Waters, a scholar in residence at American University’s School of Public Health who also teaches at the law school.

Anti-abortion groups also support them. “There should never exist a legal pathway to tie the end of a child’s life, regardless of their dependency, to that of her mother,” said Steven Aden, Americans United for Life’s chief legal officer & general counsel.

‘Perfect Test Case’

The issue first gained traction in 2021, when a federal judge declared a pregnancy exclusion in Idaho’s advance directive law violated the First, Fifth, and 14th amendments to the US Constitution.

Attention waned amid the abortion battle, but that could soon change, Waters said.

“The Michigan lawsuit is a perfect test case because the state constitution specifically protects decision-making around pregnancy,” she said.

The advance directive law’s pregnancy carve-out categorically violates “a fundamental right to reproductive freedom” added to the Michigan Constitution in response to Dobbs, she said. Voters in several states added similar protections, but Michigan’s is the most comprehensive.

The amendment expressly encompasses decision-making “about all matters relating to pregnancy, including but not limited to prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care.”

The case is still in its early stages.

The Kansas plaintiffs similarly challenged their state’s exclusion as infringing a broad range of state constitutionally protected liberty rights, including rights of personal autonomy and privacy recognized by the state’s courts.

Attorney General Kris Kobach (R) says none of the plaintiffs are pregnant and suffering from a life-threatening medical condition and so lack standing to sue.

Both cases were brought under their respective state constitutions.

‘History and Traditions’

The Idaho-based federal court, however, specifically rejected the same argument against standing before ruling on the merits.

That decision rested on several older federal cases, including Cruzan v. Director, Missouri Department of Health, a US Supreme Court decision recognizing that the 14th Amendment’s due process clause protects a right to refuse life-saving care.

The justices added in Washington v. Glucksberg that this right was “grounded in the nation’s history and traditions,” although they ultimately upheld a state law prohibiting assisted suicide.

Dobbs shouldn’t change the result, Waters said.

The Idaho federal judge distinguished advance directives from abortion, and Justice Samuel A. Alito Jr. specifically limited his opinion in Dobbs to the right to abortion, which he said didn’t fall within the nation’s history and tradition.

The older cases invoked substantive due process, which applies to rights that aren’t specifically listed in the Constitution, yet are considered so basic as to be protected from state infringement.

But Waters argues the exclusions also likely violate equal protection principles. The 14th Amendment’s equal protection clause bars states from discriminating against people based on certain characteristics, including race and sex, without a compelling reason.

Doctors’ Conscience Rights

Anti-abortion groups see the issue differently.

“State laws have routinely included exceptions to advance directives to continue life support for pregnant mothers when it is essential to the duty of physicians to act in the interest of both patients, mother and child,” AUL’s Aden said.

These laws also help protect the conscience rights of doctors who are morally or religiously opposed to practices ending human lives, Aden said, adding that he “hopes these humane and commonsense exceptions to advance directives will be upheld.”

The Kansas Attorney General’s Office, its outside attorneys, and other groups representing the states’ interests didn’t respond to requests for comment.

If/When/How “wants to see the law changed in every state, and for people to know there are legal options they can pursue,” Ainsworth said.

“The goal is to have people’s decisions respected,” she said. Exclusions treat pregnant people like “second-class citizens” by preventing them from making choices allowed to others, and force doctors “to treat human bodies like incubators.”