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Warning: Idaho Might Ignore the Health Care Directives of Pregnant Women

Advanced health care directives have become an increasingly popular option in estate planning. Americans are increasingly concerned with how we live our last months on earth as “death with dignity” stories filter through our news every few years.

However, Idaho has decided to interfere with patient-driven healthcare directives in an unexpected manner. Four women have filed a federal lawsuit asserting that Idaho’s healthcare directive laws discriminate against pregnant women.

Healthcare directives allow patients to nominate an agent to make medical decisions for them if they become incapacitated and unresponsive. Healthcare directives also contain instructions for agents to follow.

A popular healthcare directive is that life sustaining treatment be withdrawn. Many people do not wish to spend their lives on life support and would prefer to pass away. Idaho healthcare directive law provides that citizens may execute a healthcare directive as long as it follows a list of requirements.

One of those requirements is that their healthcare directive must include the following provision: “If I have been diagnosed as pregnant, this Directive shall have no force during the course of my pregnancy.” In other words, women’s healthcare directives in Idaho are useless if they are pregnant while they are medically incapacitated.

pregnant womenDoes This Law Illegally Discriminate?

The 14th Amendment of the Constitution promises that no person shall be deprived of “equal protection of the law.” The Supreme Court has interpreted this to mean that states cannot discriminate against citizens based on certain personal traits. These personal traits are known as protected classes.

Protected classes include race, religion, and gender. Surprisingly, there was some legal debate as to whether gender discrimination included pregnancy discrimination (attorneys and judges were almost exclusively men when these debates occurred).

Although only women can become pregnant, not all women can, want, or will be pregnant. The debate was settled in 1978 when Congress passed the Pregnancy Discrimination Act, which officially declared pregnancy discrimination to be a form of gender discrimination.

Idaho law explicitly singles out pregnant women and decrees that their healthcare directives be suspended if they become incapacitated. No other group has their rights stripped this way.

There is no question that this law discriminates against pregnant women, a protected class under the 14th Amendment and the Pregnancy Discrimination Act. The next issue is whether Idaho has an important interest that would allow federal courts to carve out an exception for it.

What Is the Point of Such a Law?

Not all discrimination is illegal. To justify discrimination based on gender, the petitioners must show that Idaho did not have an important state interest when it passed the law in question and that the law is not substantially related to that important goal. Unfortunately for the women, they will be fighting an uphill battle.

While lawmakers recognize that people have a right to control their own medical care, we do not have a right to control the medical care of others. Normally parents can make healthcare decisions for their children because the law assumes that parents will make decisions that are in the best interests of their children. However, it is hotly debated whether parents have the right to keep healthcare from their children, especially if such care could save the child’s life.

Doctors and hospitals are legally and morally required to keep patients alive as long as possible. Most people create healthcare directives because they don’t want ventilators, feeding tubes, or other types of life support forced on them. If a woman is pregnant though, ending life support for the pregnant woman could also end the life of the potential child inside her.

That is a leap Idaho might not be prepared to make. Most courts would recognize that saving a child’s life, even an unborn potential life, as an important state interest. The remaining question is whether the law Idaho passed is substantially related to saving a fetus’s life.

Is There a Less Invasive Way of Saving a Child’s Life?

The elephant of this case is that it is a variation of abortion. There are some differences; most women probably don’t foresee themselves being pregnant when they are incapacitated, and some women might even want to preserve their life until their child is born.

In fact, two of the women in this case have a healthcare directive which instructs their agents to preserve her life if her physician determines that the fetus is at or beyond the point of viability and would be able to survive outside her body without life support or long-term damage.

For these women, it is not a question of whether they want what is best for their unborn child, but whether they have a choice in the matter.

Is there a way to satisfy everyone’s demands despite the conflict between women’s rights and Idaho’s interest in preserving life? On one hand, pregnancy is usually temporary. Even if a woman’s healthcare directive is suspended, her agent could wait for nine months (or less) and then carry out her wishes after the child is born.

On the other hand, if a pregnant woman’s healthcare directive is triggered, that would almost certainly mean there are complications that might endanger not only her life, but the life of the unborn baby inside.

Suspending a woman’s healthcare directive seems very draconian because the suspension would undermine the purpose of her directive right when she would need it most. Instead of suspending the directives of all pregnant women who become incapacitated, Idaho should narrow its law so that only certain cases would be impacted.

If a pregnant woman becomes medically incapacitated such that she would need life support, the unborn fetus itself might not make it. Agents themselves should be able to confer with the physicians to determine whether the fetus can be saved. If not, the healthcare directive should be followed as usual.

Many women (and men) probably dislike the idea of their unconscious bodies being used as incubators for babies. However, the Constitution only requires that Idaho narrow the number of women impacted or the impact this law has on women.

The Constitution would not prevent the state from trying to save the lives that it can. If the people of Idaho believe that women’s choice should outweigh the state’s interest in protecting unborn fetuses, they should either ask Idaho lawmakers to change the law or change the lawmakers in Idaho.

Is This Case Ripe?

There is also a procedural issue that might torpedo this case before it even takes off. There are four women in this lawsuit. Two are currently pregnant and two are not. All of them presumably have the mental capacity to hire an attorney and verify a federal lawsuit. None of them are incapacitated.

American courts require a real case or controversy. Hypothetical cases are not permitted because courts are not an advisory body. Since this case is about Idaho stripping the rights of pregnant and incapacitated women, there should, ideally, be at least one pregnant and incapacitated woman. This case could be dismissed for ripeness, since answering the issues in this case would not change the legal situations of any of these women.

It is possible that the pregnant women face a complication or medical situation that might render them unconscious. It would be silly to wait for them to become incapacitated before hearing their case.

However, the other two women are not pregnant. Even if the non-pregnant women were to become unconscious tomorrow, the law they are challenging would never apply to them. Their attorneys would need a very persuasive argument to show why the non-pregnant women should be permitted to stay in the case.

Jason Cheung

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