Although “pregnancy exclusion” laws have been on the books for more than two decades, the case of the now 19-week pregnant Marlise Munoz in Texas is bringing attention to the laws in more than 30 states that explicitly establish a separate and unequal status for women. These laws exclude pregnant women from the right given to other people to direct in a living will that life support be stopped, or to authorize a family member to make that decision if they have no living will.
Rather than archaic sexist laws left on the books from earlier times, the pregnancy exclusions are of a recent vintage. They establish that while men are free to determine what will happen to them if they become sick and unable to communicate their health-care wishes, women who may become pregnant are not free to plan the course of their health care, lives, and deaths.
What these pregnancy exclusion laws can do is frighteningly demonstrated by what is happening to Marlise Munoz. According to some news reports, Munoz is dead based on neurological criteria, or “brain dead.” This is not the same as being in a coma or in a persistent vegetative state; she is reportedly legally dead, and has been for weeks. But she was also 14 weeks’ pregnant when she suffered the pulmonary embolism that ended her life. So, against the wishes of her husband Erick and her family, Munoz’s body has been maintained by mechanical support for about five weeks now. The family is very clear that Munoz would not have wanted her body to be used in this way. Marlise and Erick were both paramedics and well aware of what that entails. She leaves behind a one-year-old son.
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By relying on a Texas law that states “a person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient,” the hospital has refused to allow Munoz’s husband and her family to make what should be a private decision to remove her body from mechanical support. Apparently this law that clearly applies to life-sustaining treatment of a pregnant woman who is alive is being interpreted to permit actions solely to sustain the life of the fetus. As a result, Munoz’s body will remain a fetal gestator for as long as hospital staff, acting on behalf of the state, chooses. In her case, the physicians say they will decide at 24 weeks (over two months after her death) whether to continue the use of her body to gestate the pregnancy or to cut her body open and perform cesarean surgery. All of this is medically complex and none of it ensures a healthy birth outcome.
It is hard to imagine a more absolute denial of a woman’s personhood than depriving her of the right to decide her own future, and then literally using her body without permission—possibly for weeks or months—as an object for a fetus to grow in. Yet this is exactly what the pregnancy exclusions envision in the 31 states that have passed them. A majority of these laws prohibit life support from being withdrawn from a woman even if she retains some consciousness and is suffering extreme pain. In Texas and many other states, the laws would prohibit doctors from following a woman’s wishes to remove life support even in the earliest stages of pregnancy.
Other state pregnancy exclusions deprive women of decision making if the fetus is “viable.” But these laws are no less offensive to women’s personhood. They 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. And clearly, these laws interfere with the practice of medicine, substituting legislators’ values for what should be decisions made by pregnant patients and their families in consultation with physicians.
In fact, many states with such laws think so little of women that they don’t inform them of pregnancy exclusions in living will materials such as in handbooks and sample forms. Nor, with the exception of Pennsylvania, do these laws explain who will pay the exorbitant medical cost of using women’s bodies. That state has decided it will pay for its unconsented use of women’s bodies. Apparently, in some circles, objections to government-supported health care disappears if the money serves the dual purpose of sustaining fetal life and denying women their rights.
From a policy perspective, the pregnancy exclusions are part of a disturbing strategy to place into law an old idea under a new guise. The old idea is that women—because they have the capacity for pregnancy—may be treated separately and unequally under the law; this is being done under the guise of seeking separate rights for fertilized, eggs, embryos, and fetuses. As a recent study makes clear, laws that establish such separate rights are being used to justify the arrests, prosecutions, and forced medical intervention on pregnant women whether or not they seek to end their pregnancies.
Five states explicitly allow women to express their wishes in their living wills regarding what they would want if they were pregnant. Constitutional law and human rights principles demand that all states ensure that pregnancy is not the basis for depriving women of their fundamental right to make decisions about their lives and deaths.