In 28 states, if you’re pregnant, the government can ignore your end-of-life wishes—no matter what you’ve written.
Reproductive freedom advocates filed a lawsuit, Vernon v. Kobach, on May 29 challenging the constitutionality of a Kansas law that automatically invalidates a person’s end-of-life treatment decisions in their living will if they are pregnant. The case argues that this law violates pregnant patient’s constitutional rights to bodily autonomy, privacy and equal treatment under Kansas law.
Kansas is one of 28 states that restrict advance directives during pregnancy—16 based on the potential of fetal survival and 12 regardless of fetal survival.
Does a state have advance directive exclusions based on pregnancy?
The plaintiffs include three Kansas women—one who is pregnant, one who has children and a third who wants children in the future—along with two Kansas OB-GYN physicians, who are represented by Compassion & Choices, If/When/How: Lawyering for Reproductive Justice and Irigonegaray & Revenaugh law firm.
“Our plaintiffs are simply asking for the same fundamental rights the Kansas Constitution guarantees to all Kansans,” said Jess Pezley, senior staff attorney at Compassion & Choices. “Categorically stripping individuals of their right to make deeply personal end-of-life decisions because they are pregnant is not only offensive, it’s fundamentally at odds with the values enshrined in the Kansas Constitution.”
The Kansas case echoes other incidents across the country where hospitals have disregarded the wishes of pregnant women and their families. The ongoing case of Adriana Smith, for example, in Georgia highlights the willingness of medical providers to disregard the dignity and choices of pregnant women and their families. Smith was declared brain dead, but Emory University Hospital put her on “life support” because she was nine weeks pregnant when she died.
In a 2013 Texas case, Marlise Muñoz was 14 weeks pregnant when she died, but the state of Texas forcibly kept her on a ventilator against the wishes of her parents and husband for 62 days while her body decomposed. The hospital refused to end their medical interventions, citing Texas’ Advance Directive Act, which had a pregnancy exclusion. A court ultimately ordered the hospital to disconnect the machines from her body—only after her body began to decompose.
I am no less capable of planning my medical care simply because I am pregnant. I know what is best for me.
Emma Vernon
Living wills, otherwise known as advance directives, allow people to outline the medical treatment they desire if terminally ill or suffering a life-threatening medical event and cannot make decisions for themselves.
Kansas’ Natural Death Act recognizes that “adult persons have the fundamental right to control the decisions relating to the rendering of their own medical care, including the decision to have life-sustaining procedures withheld or withdrawn in instances of a terminal condition.” The Kansas law, however, has a pregnancy exclusion that automatically invalidates the living wills of pregnant women—stripping them of the very rights the law claims to protect.
The plaintiffs argue that the Kansas law violates their fundamental rights of personal autonomy, privacy, equal treatment and freedom of speech by categorically disregarding their clearly expressed end-of-life decisions during pregnancy. They ask the court to affirm that the equality protections of the Kansas Constitution apply equally to them, regardless of their pregnancy status.
“Because I’m currently pregnant, I don’t get the peace of mind a living will is meant to provide,” said Emma Vernon of Lawrence, Kansas, who is pregnant with their first child. “I shouldn’t have to fear that my pregnancy could cost me my dignity and autonomy. If something were to happen to me during this pregnancy I would have no control over the end-of-life care I receive. I am no less capable of planning my medical care simply because I am pregnant. I know what is best for me.”
Categorically stripping individuals of their right to make deeply personal end-of-life decisions because they are pregnant is not only offensive, it’s fundamentally at odds with the values enshrined in the Kansas Constitution.
Jess Pezley
The two other plaintiffs—Abigail Ottaway, who hopes to have children in the future, and Laura Stratton, a parent to two children—have detailed advance directives that would have no effect under Kansas law. Their inclusion in the case reflects how the law undermines reproductive autonomy not just during pregnancy but also while planning for it.
Two doctors, Dr. Michele Bennett and Dr. Lynley Holman, are also challenging the pregnancy exclusion, arguing that the pregnancy exclusion forces physicians to violate their ability to ethically practice medicine and exposes them as well as other providers to civil, criminal and regulatory sanctions.
“As a physician, I am deeply committed to honoring my patients’ autonomy and safeguarding their privacy. When a law compels me to act against my patients’ clearly expressed decisions, it not only undermines the trust at the heart of the patient-provider relationship, but also threatens the ethical foundation of medical care,” said Dr. Holman of Lawrence, Kansas. “Every individual deserves the dignity of making their own health care decisions without unwanted intrusion—and no provider should face legal or professional consequences for honoring that dignity.”
The complaint asks the court to permanently prohibit the state from enforcing the pregnancy exclusion—restoring pregnant women’s right to have their end-of-life decisions honored, just like anyone else.
“I have lived in Kansas for almost 65 years; I have spent decades defending the constitutional rights of its people. Kansans greatly value their individual rights and personal freedom,” said Pedro Irigonegaray, partner at Irigonegaray & Revenaugh. “The Pregnancy Exclusion betrays those values by denying pregnant people the right to control their own medical decisions.”
“Across the country, people are shocked and horrified to learn that their end-of-life directives might be invalidated because they are pregnant,” said Farah Diaz-Tello, senior counsel and legal director at If/When/How. “Everyone deserves to be able to make decisions about their body and their life; pregnancy is no excuse to deny someone’s fundamental rights.”
