In the wake of the Marlise Munoz tragedy, more attention is being paid to laws that permit dead women to be used as incubators for fetuses. It seems grotesque that a woman’s lifeless body can be commandeered by a state and used as a petri dish in which to grow a baby. But that’s exactly what happened to Munoz, and that is what is going to happen to women in Louisiana should Gov. Bobby Jindal sign HB 1274 into law.
Despite being declared brain-dead, Munoz was kept on a ventilator for more than two months because doctors at John Peter Smith Hospital feared running afoul of a Texas law that prohibits withdrawing or withholding life-sustaining treatment from a pregnant patient. (Munoz‘s husband, Erick, sued the hospital, which eventually removed Munoz’s body from mechanical support after a court ordered it to do so.)
The law, and others like it, is offensive. Such legislation permits a state to keep a brain-dead pregnant corpse “alive” until the fetus can be carved out of her body. As Lynn Paltrow of National Advocates for Pregnant Women and Katherine Taylor of Drexel University recently wrote for Rewire:
[Such laws] all establish a second-class status for women, depriving them of the security and peace of mind given to individuals and families by the ability to plan what will happen to them if they become critically ill, and what will happen to their bodies after they die.
Sex. Abortion. Parenthood. Power.
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While shocking to any reasonable person’s conscience, these laws are surprisingly common. Thirty-one states have laws that restrict a pregnant woman’s ability to direct her doctor to remove life-sustaining treatment. In states like Texas, even if a pregnant woman explicitly says that she doesn’t want life-sustaining treatment, her express wishes can be ignored based on the state’s claimed interest in the fetus she is carrying.
Louisiana is the latest state to show its utter disregard for a woman’s right to privacy, bodily autonomy, and liberty. HB 1274, recently passed by the state legislature, essentially prohibits withdrawing life support for a pregnant woman if the obstetrician has determined that the fetus is at least 20 weeks’ gestation, and that the pregnant woman’s bodily functions can reasonably be maintained to support the continued development and live birth of the fetus.
I say “essentially,” because the law is vague, and likely purposefully so. Unlike Texas’ pregnancy exclusion law, which flat-out forbids turning off mechanical support on a pregnant woman, the Louisiana law simply requires that any “ambiguity” as to whether or not to do so should be interpreted in favor of saving the life of a 20-week fetus.
In other words, it is ambiguous what “ambiguity” is supposed to mean.
The Times-Picayune reports that the sponsor of the bill, Democratic Rep. Austin Badon, said that an ambiguity exists when there’s no DNR, or do-not-resuscitate identification bracelet. The bill itself, however, does not define “ambiguity” in this way (or at all) and Louisiana’s advance directive statute, when read as a whole, seems not to support Rep. Badon’s statement.
Louisiana’s advance directive statute recognizes that “all persons have the fundamental right to control the decisions relating to their own medical care,” and that includes the decision to refuse life-sustaining treatment if that person is dying.
“Any adult person may, at any time, make a written declaration directing the withholding or withdrawal of life-sustaining procedures in the event such person should have a terminal and irreversible condition,” the statute reads. (The statute includes an advance directive form, which makes no mention of pregnancy, that a person may fill out to serve as a written declaration.)
But the statute also says that nothing “shall be construed to be the exclusive means by which life-sustaining procedures may be withheld or withdrawn.” So if filling out the form, or making some other written declaration, is not the “exclusive means by which life-sustaining procedures may be withheld or withdrawn,” then it stands to reason that the statute contemplates that people can make their wishes known by some other means, not just—as Rep. Badon seems to believe—through a DNR.
So even if a woman does not have an advance directive or living will that includes instructions on how to proceed if she is pregnant, under the statute, she should be able to express her desire some other way—for example, by telling her spouse, partner, or family member to remove her from a ventilator even if she’s pregnant.
Just as any woman should be able to instruct that her body be kept on a ventilator until the fetus she is carrying can survive on its own, any woman should be able to make decisions about her end-of-life care
—and thus, her pregnancy—if she chooses to do so.
A prior version of the law, HB 348, explicitly prohibited withdrawing life-sustaining treatment even if there is a contrary direction in an advance directive, living will, or decision by a health-care provider. But this earlier version was replaced by the current version, HB 1274. The current version does not contain the explicit prohibition present in the earlier version—that a pregnant woman must be kept on mechanical support no matter what her advance directive or living will says. This significant difference between the earlier version of the law (HB 348) and the current version (HB 1274) makes interpretation of the latter that much more confusing.
Under HB 1274, would the state be able to override a pregnant woman or her family member’s decision to pull the plug or not? The statute doesn’t say. And given that doctors tend to be skittish about being held criminally liable for violating state law, they will likely refuse to withdraw
mechanical support, even if the woman or her family members insist that they do.
What can be done? Sadly, the answer is “not much.”
The family of a vegetative pregnant woman could plead her case in a Louisiana court, as Erick Munoz did in Texas, but the chances of mounting a successful facial challenge to the law are slim, for reasons that are more technical than substantive.
Certainly, there are arguments to be made about the constitutionality of the bill.
For example, HB 1274 applies only if an obstetrician determines that the probable age of the fetus is 20 weeks, which makes the law similar to 20-week abortion bans. I have written extensively about 20-week abortion bans: They are unconstitutional because women have a constitutional right to choose an abortion up until the point of fetal viability, which occurs at about 24 weeks. To the extent HB 1274 is constitutional at all—and I don’t believe it is—the benchmark should be fetal viability, not 20 weeks “probable post-fertilization.”
HB 1274 also raises serious equal protection and due process concerns. First, the law treats terminal or vegetative pregnant women differently than it treats terminal or vegetative men and terminal or vegetative non-pregnant women. Second, the U.S. Supreme Court has said that people have a due process right to refuse life-sustaining treatment; women should not be denied that right simply because they are dead or dying and happen to be pregnant.
Unfortunately, however, in order for a court to hear a case challenging this law (or any law like it) the plaintiff bringing the case must have standing, meaning the plaintiff must have a direct stake in the case. In addition, the case must be ripe, meaning the case must be mature and not based on a hypothetical situation that may or may not occur at some point in the future. If the case fails on either of these two technical counts, the case will be thrown out of court.
And that is exactly what courts have done. The Washington Supreme Court in DiNino v. State ex rel Gorton and the U.S. District Court for North Dakota in Gabrynowicz v. Heitkamp, for example, rejected the claims of two women challenging pregnancy exclusion laws. In both cases, healthy non-pregnant women sought a ruling that the pregnancy exclusion law in their state was unconstitutional. And in both cases, the courts held that the women didn’t have standing and that the cases were not ripe: Neither woman was pregnant and both were in good health.
What it all boils down to is this: A case challenging HB 1274 as unconstitutional would likely have to be brought by a brain-dead or terminally ill pregnant woman.
And for obvious reasons, that’s a terrible way to make public policies, and a horrible burden to place on a family already facing tragedy.