Analysis Law and Policy

You Have a ‘Fundamental Right’ to Make End-of-Life Decisions, Unless You’re Pregnant

Jessica Mason Pieklo

As more courts recognize a patient's privacy rights to make end-of-life health-care decisions, it's become clear that what courts characterize as "fundamental rights" don't apply to pregnant people.

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

As lawyers in Texas fought over if, and when, the ventilator would be removed from the corpse of Marlise Munoz over the past few weeks, a New Mexico court released a decision that could bring to a head the fight over the rights of pregnant patients to be free from government-forced end-of-life interventions in the name of saving their fetuses.

The New Mexico case involves Aja Riggs, a Santa Fe woman diagnosed with advanced uterine cancer. Riggs, along with two doctors, challenged the notion that terminally ill patients making informed decisions, such as the removal of a ventilator, does not violate the state’s “assisted suicide” statute when other decisions, such as when to take a dose of lethal medication, does. A New Mexico judge agreed, and ruled that terminally ill patients have the right to “aid in dying” under the New Mexico Constitution, and that such aid is no more “suicide” than the removal of a ventilator or a feeding tube. “This Court cannot envision a right more fundamental, more private or more integral to the liberty, safety and happiness of a New Mexican than the right of a competent, terminally ill patient to choose aid in dying,” the court wrote. “If decisions made in the shadow of one’s imminent death regarding how they and their loved ones will face that death are not fundamental and at the core of these constitutional guarantees, than [sic] what decisions are?”

The ruling was heralded by patients’ rights activists and the American Civil Liberties Union, which filed suit to challenge the law. “New Mexicans, both healthy and sick, now enjoy the comfort and peace of mind that come with knowing they can prevent a prolonged, agonized dying process at the end of life,” said ACLU of New Mexico Legal Director Laura Schauer Ives in a statement. “The court agreed that the New Mexico Constitution guarantees terminally ill patients they do not have to stay trapped in a dying process they find unbearable.”

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But the New Mexico court’s decision is more than an embrace of the idea that the U.S. and state constitutions protect the privacy rights of citizens to make their own informed medical decisions, especially those surrounding the end of one’s life. It’s an example of just how far the law has to go in recognizing that idea as it applies to women. That’s because New Mexico is one of 14 states that requires hospitals to use life support measures on a terminally ill pregnant person when it is probable that the fetus will develop to the point of viability outside the uterus. So while the New Mexico court’s opinion is a step in the right direction of recognizing the dignity and rights of individuals to make their own health-care decisions, it leaves open the question of what would happen should a pregnant woman try to exercise those rights.

Sadly, Texas gave us one example. As we witnessed in the Munoz case, brain death, which results in a person being considered legally dead, does not always require a hospital to stop providing medical care to the body. In fact, only New York and New Jersey require hospitals to take into account the religious or moral views in deciding when to terminate treatment in such cases, which means it’s just a matter of time until we see another Munoz case.

That any state can claim the authority to override the competent end-of-life directives of a woman simply because she is pregnant is thanks in large part to the Supreme Court’s decision in Planned Parenthood v. Casey and the creation of a state interest in fetal life. The creation of that state interest paved the way for what lawyers for John Peter Smith Hospital would argue was support for keeping Munoz’s corpse on a ventilator: the state’s 20-week abortion ban and a definition from the Texas Penal Code of an individual that includes every stage of gestation. Furthermore, attorneys for the hospital argued, it’s not just that the state has an interest in fetal life, it’s that it has the prerogative to value, and prefer, that life over the life of the pregnant person. “Given the strong interest of the Texas Legislature in protecting the life of unborn children, it is unlikely the Legislature contemplated only the welfare of the mother” when it passed the law that allows hospitals to override the end-of-life directives of pregnant patients and do whatever they deem necessary, even artificially sustaining a corpse, for the potential of furthering a pregnancy, according to court documents. It is reasonable, the hospital argued, to assume lawmakers passed the law so as to “protect the unborn child against the wishes of a decision maker who would terminate the child’s life along with the mother’s.”

Unlike Texas and 11 other states, New Mexico law will not automatically invalidate a pregnant person’s advance directive without exception, but that should hardly be of any comfort for those hoping to avoid the next Marlise Munoz tragedy in New Mexico or elsewhere. Most importantly, while the Texas court order requiring John Peter Smith Hospital to remove the ventilator from Munoz’s corpse may have brought an end to the immediate tragedy of the state and hospital futilely ignoring and violating her end-of-life wishes, it did nothing to affirm the constitutional rights of a person to be free from government-compelled gestation. For that to happen, the court would have to affirm that a pregnant person’s liberty and privacy in making their end-of-life care decisions outweighs any interest the state has in keeping their body alive to gestate. And for that to happen, the courts, lawmakers, and society writ large would have to believe that a woman does not give up her fundamental rights once she becomes pregnant.

Sadly, there’s nothing to indicate that change will happen any time soon. New Mexico Attorney General Gary King, a Democrat, told the Santa Fe New Mexican he will likely appeal the right-to-die ruling since “the thoughts of the Catholic Church are very influential in New Mexico policy.” And that, right there, shows just how far we have to go before the idea of “fundamental rights” means the same thing for pregnant people as it does for everybody else.

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