What is a Pregnancy Exclusion?
Pregnancy Exclusions are provisions in living will (or advance directive) laws that invalidate an individual’s advance directive if they are pregnant. Advance directives are written documents that detail the end-of-life treatment you would or would not want if you are terminally ill or suffering a life-threatening medical event and unable to make or communicate medical treatment decisions yourself. These pregnancy exclusions in advance directive laws restrict the ability of individuals capable of becoming pregnant to direct their end-of-life care and can result in pregnant individuals receiving treatment they do not want or need.
The ability to refuse life-sustaining treatment is constitutionally protected and does not hinge on one’s pregnancy status. Everyone, regardless of their pregnancy status, should be able to direct the care they would or would not want at the end of life. Especially now, when pregnant people are at a heightened risk of needing invasive treatment for COVID-19, it is crucial that everyone has the peace of mind that their advance directive will be followed if or when it is needed.
The issue of pregnancy exclusions in advance directive laws garnered national attention in 2013. Marlise Muñoz, a Texas woman, was approximately 14 weeks pregnant when she suffered a pulmonary embolism. Two days later doctors declared her brain-dead. While Marlise had not executed an advance directive, she had discussed her end-of-life care wishes with her husband, Erick Muñoz. Knowing her end-of-life care wishes, Erick asked her doctors to withdraw or withhold any “life-sustaining” medical treatment from his wife. The hospital refused, citing Texas’s Advance Directive Act, a law that automatically invalidates a person’s advance directive in the event they are pregnant. Two months later, a trial court held that the Texas Advance Directive Act did not apply to Muñoz because she was dead, based on the scientifically established medical standards doctors use to determine if a patient is dead. The court ordered the hospital to remove all life-sustaining treatment from her body.
More than 30 states have advance directive laws containing a pregnancy exclusion. Nine states invalidate a pregnant individual’s advance directive, regardless of whether or not the fetus can survive: Alabama, Indiana, Kansas, Michigan, Missouri, South Carolina, Texas, Utah, and Wisconsin. In these states, an individual who is only a month pregnant and whose fetus has no chance of survival could nevertheless be kept artificially alive against their express wishes for the duration of the pregnancy.
While many advance directive laws contain pregnancy exclusions, some states are actively trying to remove the provision from their law books. In 2021, Colorado passed SB 193, which removed the pregnancy exclusion from its advance directive law. Compassion & Choices supports all legislative efforts to remove pregnancy exclusions, or any other unnecessary restriction inhibiting advance care planning, from advance directive laws.
Almerico v. Denney
Compassion & Choices achieved a landmark victory in 2021 after challenging a pregnancy exclusion in Idaho’s living will law. This historic win resulted from the filing of a 2018 lawsuit on behalf of four women of child-bearing age, Almerico v. Denney, in Idaho Federal District Court. The suit challenged the constitutionality of a provision of Idaho’s living will law that stated if a person has “been diagnosed as pregnant, [their advance directive] shall have no force during the course of [their] pregnancy.” For more than 15 years, Idaho officials interpreted this provision to require pregnant individuals who were incapacitated to be kept on life-sustaining treatment, regardless if the life-sustaining treatment contradicted their advance directive.
In 2021, a federal judge ruled that Idaho’s official’s interpretation of the law’s provision–referred to as the “pregnancy exclusion”–was unconstitutional, violating the four women’s rights to their own medical decision-making and free speech. This ruling was the first of its kind to recognize that pregnancy exclusions are unconstitutional. An appeal of this decision was dismissed in 2022 after the parties reached a settlement, requiring Idaho state officials to complete a number of corrective measures to ensure that an individual’s pregnancy status would not void their advance directive.
What Should You Do?
If you are executing an advance directive and are capable of becoming pregnant, you should include in your directive the actual treatment you would want if you become incapacitated while pregnant, including the kind of treatments you would or would not want, and specify under what circumstances you would want such treatment. You should also designate a health care proxy who knows and will respect your treatment wishes if you become incapacitated while pregnant.
You should consult an attorney in your jurisdiction for legal advice about the relevant laws in your jurisdiction and how to execute your advance directive to ensure all your decisions are respected.
If you or a loved one are currently experiencing or have experienced an issue related to advance care planning and pregnancy and are interested in receiving legal help from Compassion & Choices, please complete the legal intake form here.