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Erica Anderson, Associate Member, University of Cincinnati Law Review
In November of 2014, Erick Muñoz was in horror as he knelt on his kitchen floor performing cardiopulmonary resuscitation (CPR) on his lifeless, pregnant wife. A blood clot in her lungs soon led to her death. Yet, the Texas hospital kept her dead body on a ventilator in the Intensive Care Unit, despite Marlise’s wishes and Erick’s pleas to remove her. In defending its decision, the hospital cited a Texas state law that required “life-sustaining treatment” be performed on pregnant persons notwithstanding a living will or other advance directive.
The Texas state judge, R.H. Wallace Jr., agreed with Erick’s attorneys that the Texas law requiring “life-sustaining treatment” could not apply to Marlise because she was dead. The judge subsequently ordered the hospital to remove Marlise from life-sustaining treatment, and the fetus soon passed away. Assuming other states would follow the ruling in this Texas case, physicians would not be able to force life-sustaining treatment on dead pregnant persons. However, the question still remains— can physicians constitutionally ignore a pregnant person’s living will if alive, but in a vegetative state?
This blog article will discuss when a state has the ability to ignore a pregnant person’s living will. Part II will state the constitutional rights to reject medical treatment and terminate pregnancies. Part III will analyze pregnancy exemption laws’ burden on these rights.
Thirty-six states allow for the invalidation of the living wills of pregnant persons. These states have passed “pregnancy exemption laws” which prevent physicians from removing pregnant persons from life-sustaining medical treatment. For these laws to be constitutional, the laws must survive the standards in Cruzan v. Director, Missouri Department of Health, Roe v. Wade, and Planned Parenthood v. Casey.
A. The right to refuse medical treatment under Cruzan
After weeks of Nancy Cruzan remaining in a persistent vegetative state, her family desired to take her off life-sustaining treatment. But, claiming it had an interest in the preservation of life, the hospital refused to remove her without a court order. The family sued the hospital, and the Court found that all competent individuals have a “liberty interest” in refusing medical treatment under the Due Process Clause. The right is not absolute, however, as it must be balanced with “relevant state interests,” such as the preservation of life.
Consequently, the Supreme Court held in Cruzan v. Director, Missouri Department of Health that a state may require “clear and convincing evidence” that an incompetent person would have wanted to refuse treatment if they were competent. The most sure way to meet this standard is through a living will, which is a legal document expressing preferences for future medical treatment in the event they become incompetent and cannot consent. Thus, it is important that every American has the ability to create a living will to ensure their constitutional right to refuse medical treatment.
B. The right to terminate a pregnancy under Roe and Casey
Roe v. Wade was the landmark decision that recognized abortion as a constitutional right. In Roe, a single pregnant woman in Texas claimed that the criminalization of abortion was a violation of her constitutional right to privacy—and she was right. The Supreme Court held that a state cannot outright ban abortions before viability. It can, however, regulate abortions during the first trimester if the regulations promote an interest in the pregnant person’s health or the potentiality of human life.
In Planned Parenthood v. Casey, the Supreme Court held that abortion regulations that place an “undue burden” on pregnant persons are unconstitutional. The Court stated that a regulation creates an “undue burden” when its purpose or effect is to place a “substantial obstacle” in the path of a pregnant person seeking to terminate a fetus before viability.
In Casey, Planned Parenthood challenged a Pennsylvania statute that required spousal notification, informed consent, and a 24-hour waiting period for all pregnant persons undergoing an abortion procedure. The spousal notification requirement constituted an “undue burden” as it gave too much power to the pregnant person’s spouse. The latter two portions of the statute were found to be constitutional as they were not in place to create an obstacle to terminating a fetus, but rather to ensure that pregnant persons are informed and able to make rational choices.
Cruzan, Roe, and Casey all demonstrate that states have a compelling interest in protecting human life. However, Roe and Casey also demonstrate that states’ interest in protecting fetal life becomes invalid at a certain point. At that point, the states’ interest in fetal life can no longer be weighed against a pregnant person’s right to reject medical treatment.
A. State laws that allow pregnant persons’ living wills to be ignored at any phase of fetal gestation are unconstitutional.
The Casey analysis applies to state laws that prevent the termination of pregnancy, even if the termination is a “byproduct of the health care decision to die a natural death.” Therefore, if pregnancy exemption laws that pay no regard to the stage of fetal gestation are deemed an “undue burden” under Casey, then the laws would be unconstitutional.
These pregnancy exemption laws are likely creating an “undue burden” on pregnant persons for two primary reasons. First, these laws are not an obstacle to abortion access, but, rather, an entire abortion ban. In Casey, the Court noted that requiring informed consent and a 24-hour waiting period was constitutional because it merely “delay[ed]” abortions. These pregnancy exemption laws are completely prohibiting pregnant persons from choosing to terminate a non-viable fetus in the event they enter a vegetative state. Second, the burden these pregnancy exemption laws are placing on pregnant persons is quite significant. These pregnancy exemption laws are forcing pregnant persons to give up bodily autonomy and their constitutional right to refuse life-sustaining support. In Casey, the burdens being placed on pregnant persons were not nearly as significant as they only required pregnant persons to be informed about the nature of an abortion procedure and the probable gestational age of the fetus, while also waiting 24 hours to follow through with the procedure.
B. Pregnancy exemption laws that allow pregnant persons’ living wills to be ignored if there is a possibility or probability of a live birth are unconstitutional.
Fifteen states allow pregnant persons’ living wills to be invalid if the fetus has a “possible” or “probable” chance of a live birth. These terms are problematic because they are both vague and ambiguous. “Possible” is defined as “something that may or may not occur,” and “‘probable’ [merely] implies a greater than fifty-percent chance.” Therefore, the possibility or probability of a live birth is present in every single case as current advanced medical technology can “sustain a fetus in an incapacitated body for the entire term of the pregnancy.”
Consequently, this standard is not merely a burden to meet, but it is arguably impossible to meet. No person could successfully argue against a “possibility” or “probability” of a live birth with today’s medical technology. Thus, the standards are an outright abortion ban in disguise. Because these laws pay no regard to gestational phase, and do not allow for pregnancy termination even before viability, they are an “undue burden” and unconstitutional under Casey.
C. Pregnancy exemption laws that only apply to persons pregnant with a viable fetus may be constitutional, but only with an exception.
Three states, Colorado, Georgia, and Louisiana, only ignore a pregnant person’s living will if the fetus is viable. Once a fetus becomes viable, the Casey, “undue burden” test no longer applies.
However, just because these specific pregnancy exclusion laws are not barred by Casey’s “undue burden” test, does not mean the laws are constitutional. These laws do not take into account the health of the pregnant person at all. Casey actually demands that abortion bans after viability be unenforceable when the abortion is necessary to preserve the “life or health of the mother.” For these pregnancy exemption laws to be constitutional, the laws must include an exception when sustaining the fetus would cause further harm to the pregnant person’s body. A state may have the ability to sustain the life of a pregnant person to preserve a viable fetus, but it should not have the right to cause further harm to the pregnant person while achieving this goal.
Assuming that other states would follow Texas’s decision in the Muñoz case, pregnant persons who are pronounced brain-dead would not be subject to laws invalidating the living wills of pregnant persons because they are deceased. However, when pregnant persons are not brain-dead, and instead suffering from a persistent vegetative state, the constitutionality of these laws may vary depending on the gestational stage of the fetus.
Pregnancy exemption laws that pay no regard to the gestational stage of the fetus are simply unconstitutional as they create an “undue burden” on pregnant persons terminating their pregnancy. Pregnancy exemption laws that only take effect after the fetus becomes viable may be constitutional if the laws contain an exception when termination of the fetus is necessary to protect the pregnant person from further harm.
 Wade Goodwyn, The Strange Case Of Marlise Munoz And John Peter Smith Hospital, NPR (Jan. 28, 2014) https://www.npr.org/sections/health-shots/2014/01/28/267759687/the-strange-case-of-marlise-munoz-and-john-peter-smith-hospital.
 Malcom Parker, Brain death, pregnancy and ethics: the case of Marlise Munoz, The Conversation (Jan. 20, 2014) https://theconversation.com/brain-death-pregnancy-and-ethics-the-case-of-marlise-munoz-22076.
 Shea Flanagan, Decisions In The Dark: Why “Pregnancy Exclusion” Statutes Are Unconstitutional and Unethical, 114 Northwest Univ. L. Rev., 969, 971 (2020) (stating Marlise did not have a written living will, but had communicated her wishes to her husband who was her “health agent,” which is another option that advanced directives allow for).
 Manny Fernandez & Erik Eckholm, Pregnant, and Forced to Stay on Life Support, N.Y. Times (Jan. 7, 2014) https://www.nytimes.com/2014/01/08/us/pregnant-and-forced-to-stay-on-life-support.html.
 Manny Fernandez, Judge Orders Hospital to Remove Pregnant Woman From Life Support, N.Y. Times (Jan. 24, 2014) https://www.nytimes.com/2014/01/25/us/judge-orders-hospital-to-remove-life-support-from-pregnant-woman.html?auth=login-email&login=email.
 Texas Family Grieves After Brain-Dead Pregnant Woman Is Taken Off Life Support, CBS News (Jan. 27, 2014).
 Flanagan, supra note 3 at 979.
 Cruzan by Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 267 (1990)
 Id. at 267-68.
 Id. at 279.
 Id. at 280.
 Id. at 323 (Justice Brennan, dissenting) (arguing that the majority suggests that only living wills can meet the “clear and convincing” evidence standard).
 American Bar Association, Living Wills, Healthcare Proxies, & Advance Health Care Directives, https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/living_wills_health_care_proxies_advance_health_care_directives/ (last visited Mar. 1, 2021).
 Roe v. Wade, 410 U.S. 113 (1973).
 Id. at 120.
 Id. at 153, 164.
 Id. at 114.
 Planned Parenthood v. Casey, 505 U.S. 833 (1992).
 Id. at 877.
 Id. at 833, 838.
 Id. at 837-38 (holding “it cannot be claimed that the father’s interest in the fetus’ welfare is equal to the mother’s protected liberty, since it is an inescapable biological fact that state regulation with respect to the fetus will have a far greater impact on the pregnant woman’s bodily integrity than it will on the husband”).
 Id. at 840-41.
 Flanagan, supra note 3 at 988.
 Id. at 882.
 E.g. Ark. Code. Ann.§ 20-17-206 (West 2018).
 E.g. Alaska Stat. Ann. § 13.52.055 (West 2018); Nev. Rev. Stat. Ann. § 449A.451 (West 2019); Mont. Code Ann. § 50-9-106 (West 2018).
 Elizabeth Villarreal, Pregnancy and Living Wills: A Behavioral Economic Analysis, 128 Yale L. J. F. 1052, 1060 (2019).
 Flanagan, supra note 3 at 995.
 Id. at 1060.
 Villarreal, supra note 31 at 999.