Commentary Human Rights

Marlise Munoz Case Shines Light on Dehumanizing ‘Pregnancy Exclusion’ Laws

Katherine Taylor & Lynn Paltrow

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 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.

Read more of our coverage on Marlise Munoz’s case here.

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.

News Politics

Missouri ‘Witch Hunt Hearings’ Modeled on Anti-Choice Congressional Crusade

Christine Grimaldi

Missouri state Rep. Stacey Newman (D) said the Missouri General Assembly's "witch hunt hearings" were "closely modeled" on those in the U.S. Congress. Specifically, she drew parallels between Republicans' special investigative bodies—the U.S. House of Representatives’ Select Investigative Panel on Infant Lives and the Missouri Senate’s Committee on the Sanctity of Life.

Congressional Republicans are responsible for perpetuating widely discredited and often inflammatory allegations about fetal tissue and abortion care practices for a year and counting. Their actions may have charted the course for at least one Republican-controlled state legislature to advance an anti-choice agenda based on a fabricated market in aborted “baby body parts.”

“They say that a lot in Missouri,” state Rep. Stacey Newman (D) told Rewire in an interview at the Democratic National Convention last month.

Newman is a longtime abortion rights advocate who proposed legislation that would subject firearms purchases to the same types of restrictions, including mandatory waiting periods, as abortion care. Her district includes the University of Missouri, which ended a 26-year relationship with Planned Parenthood as anti-choice state lawmakers ramped up their inquiries in the legislature.

Newman said the Missouri General Assembly’s “witch hunt hearings” were “closely modeled” on those in the U.S. Congress. Specifically, she drew parallels between Republicans’ special investigative bodies—the U.S. House of Representatives’ Select Investigative Panel on Infant Lives and the Missouri Senate’s Committee on the Sanctity of Life. Both formed last year in response to videos from the anti-choice front group the Center for Medical Progress (CMP) accusing Planned Parenthood of profiting from fetal tissue donations. Both released reports last month condemning the reproductive health-care provider even though Missouri’s attorney general, among officials in 13 states to date, and three congressional investigations all previously found no evidence of wrongdoing.

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Missouri state Sen. Kurt Schaefer (R), the chair of the committee, and his colleagues alleged that the report potentially contradicted the attorney general’s findings. Schaefer’s refusal to confront evidence to the contrary aligned with how Newman described his leadership of the committee.

“It was based on what was going on in Congress, but then Kurt Schaefer took it a step further,” Newman said.

As Schaefer waged an ultimately unsuccessful campaign in the Missouri Republican attorney general primary, the once moderate Republican “felt he needed to jump on the extreme [anti-choice] bandwagon,” she said.

Schaefer in April sought to punish the head of Planned Parenthood’s St. Louis affiliate with fines and jail time for protecting patient documents he had subpoenaed. The state senate suspended contempt proceedings against Mary Kogut, the CEO of Planned Parenthood of St. Louis Region and Southwest Missouri, reaching an agreement before the end of the month, according to news reports.

Newman speculated that Schaefer’s threats thwarted an omnibus abortion bill (HB 1953, SB 644) from proceeding before the end of the 2016 legislative session in May, despite Republican majorities in the Missouri house and senate.

“I think it was part of the compromise that they came up with Planned Parenthood, when they realized their backs [were] against the wall, because she was not, obviously, going to illegally turn over medical records.” Newman said of her Republican colleagues.

Republicans on the select panel in Washington have frequently made similar complaints, and threats, in their pursuit of subpoenas.

Rep. Marsha Blackburn (R-TN), the chair of the select panel, in May pledged “to pursue all means necessary” to obtain documents from the tissue procurement company targeted in the CMP videos. In June, she told a conservative crowd at the faith-based Road to Majority conference that she planned to start contempt of Congress proceedings after little cooperation from “middle men” and their suppliers—“big abortion.” By July, Blackburn seemingly walked back that pledge in front of reporters at a press conference where she unveiled the select panel’s interim report.

The investigations share another common denominator: a lack of transparency about how much money they have cost taxpayers.

“The excuse that’s come back from leadership, both [in the] House and the Senate, is that not everybody has turned in their expense reports,” Newman said. Republicans have used “every stalling tactic” to rebuff inquires from her and reporters in the state, she said.

Congressional Republicans with varying degrees of oversight over the select panel—Blackburn, House Speaker Paul Ryan (WI), and House Energy and Commerce Committee Chair Fred Upton (MI)—all declined to answer Rewire’s funding questions. Rewire confirmed with a high-ranking GOP aide that Republicans budgeted $1.2 million for the investigation through the end of the year.

Blackburn is expected to resume the panel’s activities after Congress returns from recess in early September. Schaeffer and his fellow Republicans on the committee indicated in their report that an investigation could continue in the 2017 legislative session, which begins in January.

News Law and Policy

Pastors Fight Illinois’ Ban on ‘Gay Conversion Therapy’

Imani Gandy

Illinois is one of a handful of states that ban so-called gay conversion therapy. Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans.

A group of pastors filed a lawsuit last week arguing an Illinois law that bans mental health providers from engaging in so-called gay conversion therapy unconstitutionally infringes on rights to free speech and freedom of religion.

The Illinois legislature passed the Youth Mental Health Protection Act, which went into effect on January 1. The measure bans mental health providers from engaging in sexual orientation change efforts or so-called conversion therapy with a minor.

The pastors in their lawsuit argue the enactment of the law means they are “deprived of the right to further minister to those who seek their help.”

While the pastors do not qualify as mental health providers since they are neither licensed counselors nor social workers, the pastors allege that they may be liable for consumer fraud under Section 25 of the law, which states that “no person or entity” may advertise or otherwise offer “conversion therapy” services “in a manner that represents homosexuality as a mental disease, disorder, or illness.”

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The pastors’ lawsuit seeks an order from a federal court in Illinois exempting pastoral counseling from the law. The pastors believe that “the law should not apply to pastoral counseling which informs counselees that homosexuality conduct is a sin and disorder from God’s plan for humanity,” according to a press release issued by the pastors’ attorneys.

Illinois is one of a handful of states that ban gay “conversion therapy.” Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans. None have been struck down as unconstitutional. The Supreme Court this year declined to take up a case challenging New Jersey’s “gay conversion therapy” ban on First Amendment grounds.

The pastors say the Illinois law is different. The complaint alleges that the Illinois statute is broader than those like it in other states because the prohibitions in the law is not limited to licensed counselors, but also apply to “any person or entity in the conduct of any trade or commerce,” which they claim affects clergy.

The pastors allege that the law is not limited to counseling minors but “prohibits offering such counseling services to any person, regardless of age.”

Aside from demanding protection for their own rights, the group of pastors asked the court for an order “protecting the rights of counselees in their congregations and others to receive pastoral counseling and teaching on the matters of homosexuality.”

“We are most concerned about young people who are seeking the right to choose their own identity,” the pastors’ attorney, John W. Mauck, said in a statement.

“This is an essential human right. However, this law undermines the dignity and integrity of those who choose a different path for their lives than politicians and activists prefer,” he continued.

“Gay conversion therapy” bans have gained traction after Leelah Alcorn, a transgender teenager, committed suicide following her experience with so-called conversion therapy.

Before taking her own life, Alcorn posted on Reddit that her parents had refused her request to transition to a woman.

“The[y] would only let me see biased Christian therapists, who instead of listening to my feelings would try to change me into a straight male who loved God, and I would cry after every session because I felt like it was hopeless and there was no way I would ever become a girl,” she wrote of her experience with conversion therapy.

The American Psychological Association, along with a coalition of health advocacy groups including the American Academy of Pediatrics, the American Counseling Association, and the National Association of Social Workers, have condemned “gay conversion therapy” as potentially harmful to young people “because they present the view that the sexual orientation of lesbian, gay and bisexual youth is a mental illness or disorder, and they often frame the inability to change one’s sexual orientation as a personal and moral failure.”

The White House in 2015 took a stance against so-called conversion therapy for LGBTQ youth.

Attorneys for the State of Illinois have not yet responded to the pastors’ lawsuit.

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