Analysis Law and Policy

Vague Louisiana Bill Would Force Brain-Dead Pregnant Women to Serve as Incubators

Imani Gandy

It seems grotesque that a woman's lifeless body can be commandeered by a state and used as a petri dish in which to grow a baby. But that's exactly what happened to Marlise Munoz in Texas, and that is what is going to happen to women in Louisiana should Gov. Bobby Jindal sign HB 1274 into law.

In the wake of the Marlise Munoz tragedy, more attention is being paid to laws that permit dead women to be used as incubators for fetuses. It seems grotesque that a woman’s lifeless body can be commandeered by a state and used as a petri dish in which to grow a baby. But that’s exactly what happened to Munoz, and that is what is going to happen to women in Louisiana should Gov. Bobby Jindal sign HB 1274 into law.

Despite being declared brain-dead, Munoz was kept on a ventilator for more than two months because doctors at John Peter Smith Hospital feared running afoul of a Texas law that prohibits withdrawing or withholding life-sustaining treatment from a pregnant patient. (Munoz‘s husband, Erick, sued the hospital, which eventually removed Munoz’s body from mechanical support after a court ordered it to do so.)

The law, and others like it, is offensive. Such legislation permits a state to keep a brain-dead pregnant corpse “alive” until the fetus can be carved out of her body. As Lynn Paltrow of National Advocates for Pregnant Women and Katherine Taylor of Drexel University recently wrote for Rewire:

[Such laws] 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.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

While shocking to any reasonable person’s conscience, these laws are surprisingly common. Thirty-one states have laws that restrict a pregnant woman’s ability to direct her doctor to remove life-sustaining treatment. In states like Texas, even if a pregnant woman explicitly says that she doesn’t want life-sustaining treatment, her express wishes can be ignored based on the state’s claimed interest in the fetus she is carrying.

Louisiana is the latest state to show its utter disregard for a woman’s right to privacy, bodily autonomy, and liberty. HB 1274, recently passed by the state legislature, essentially prohibits withdrawing life support for a pregnant woman if the obstetrician has determined that the fetus is at least 20 weeks’ gestation, and that the pregnant woman’s bodily functions can reasonably be maintained to support the continued development and live birth of the fetus. 

I say “essentially,” because the law is vague, and likely purposefully so. Unlike Texas’ pregnancy exclusion law, which flat-out forbids turning off mechanical support on a pregnant woman, the Louisiana law simply requires that any “ambiguity” as to whether or not to do so should be interpreted in favor of saving the life of a 20-week fetus.

In other words, it is ambiguous what “ambiguity” is supposed to mean.

The Times-Picayune reports that the sponsor of the bill, Democratic Rep. Austin Badon, said that an ambiguity exists when there’s no DNR, or do-not-resuscitate identification bracelet. The bill itself, however, does not define “ambiguity” in this way (or at all) and Louisiana’s advance directive statute, when read as a whole, seems not to support Rep. Badon’s statement.

Louisiana’s advance directive statute recognizes that “all persons have the fundamental right to control the decisions relating to their own medical care,” and that includes the decision to refuse life-sustaining treatment if that person is dying. 

“Any adult person may, at any time, make a written declaration directing the withholding or withdrawal of life-sustaining procedures in the event such person should have a terminal and irreversible condition,” the statute reads. (The statute includes an advance directive form, which makes no mention of pregnancy, that a person may fill out to serve as a written declaration.)

But the statute also says that nothing “shall be construed to be the exclusive means by which life-sustaining procedures may be withheld or withdrawn.” So if filling out the form, or making some other written declaration, is not the “exclusive means by which life-sustaining procedures may be withheld or withdrawn,” then it stands to reason that the statute contemplates that people can make their wishes known by some other means, not just—as Rep. Badon seems to believe—through a DNR.

So even if a woman does not have an advance directive or living will that includes instructions on how to proceed if she is pregnant, under the statute, she should be able to express her desire some other way—for example, by telling her spouse, partner, or family member to remove her from a ventilator even if she’s pregnant. 

Just as any woman should be able to instruct that her body be kept on a ventilator until the fetus she is carrying can survive on its own, any woman should be able to make decisions about her end-of-life care—and thus, her pregnancy—if she chooses to do so.

A prior version of the law, HB 348, explicitly prohibited withdrawing life-sustaining treatment even if there is a contrary direction in an advance directive, living will, or decision by a health-care provider. But this earlier version was replaced by the current version, HB 1274. The current version does not contain the explicit prohibition present in the earlier version—that a pregnant woman must be kept on mechanical support no matter what her advance directive or living will says. This significant difference between the earlier version of the law (HB 348) and the current version (HB 1274) makes interpretation of the latter that much more confusing. 

Under HB 1274, would the state be able to override a pregnant woman or her family member’s decision to pull the plug or not? The statute doesn’t say. And given that doctors tend to be skittish about being held criminally liable for violating state law, they will likely refuse to withdraw mechanical support, even if the woman or her family members insist that they do.

What can be done? Sadly, the answer is “not much.”

The family of a vegetative pregnant woman could plead her case in a Louisiana court, as Erick Munoz did in Texas, but the chances of mounting a successful facial challenge to the law are slim, for reasons that are more technical than substantive. 

Certainly, there are arguments to be made about the constitutionality of the bill. 

For example, HB 1274 applies only if an obstetrician determines that the probable age of the fetus is 20 weeks, which makes the law similar to 20-week abortion bans. I have written extensively about 20-week abortion bans: They are unconstitutional because women have a constitutional right to choose an abortion up until the point of fetal viability, which occurs at about 24 weeks. To the extent HB 1274 is constitutional at all—and I don’t believe it is—the benchmark should be fetal viability, not 20 weeks “probable post-fertilization.”

HB 1274 also raises serious equal protection and due process concerns. First, the law treats terminal or vegetative pregnant women differently than it treats terminal or vegetative men and terminal or vegetative non-pregnant women. Second, the U.S. Supreme Court has said that people have a due process right to refuse life-sustaining treatment; women should not be denied that right simply because they are dead or dying and happen to be pregnant.

Unfortunately, however, in order for a court to hear a case challenging this law (or any law like it) the plaintiff bringing the case must have standing, meaning the plaintiff must have a direct stake in the case. In addition, the case must be ripe, meaning the case must be mature and not based on a hypothetical situation that may or may not occur at some point in the future. If the case fails on either of these two technical counts, the case will be thrown out of court.

And that is exactly what courts have done. The Washington Supreme Court in DiNino v. State ex rel Gorton and the U.S. District Court for North Dakota in Gabrynowicz v. Heitkamp, for example, rejected the claims of two women challenging pregnancy exclusion laws. In both cases, healthy non-pregnant women sought a ruling that the pregnancy exclusion law in their state was unconstitutional. And in both cases, the courts held that the women didn’t have standing and that the cases were not ripe: Neither woman was pregnant and both were in good health.

What it all boils down to is this: A case challenging HB 1274 as unconstitutional would likely have to be brought by a brain-dead or terminally ill pregnant woman. 

And for obvious reasons, that’s a terrible way to make public policies, and a horrible burden to place on a family already facing tragedy.

News Politics

Clinton Campaign Announces Tim Kaine as Pick for Vice President

Ally Boguhn

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

The Clinton campaign announced Friday that Sen. Tim Kaine (D-VA) has been selected to join Hillary Clinton’s ticket as her vice presidential candidate.

“I’m thrilled to announce my running mate, @TimKaine, a man who’s devoted his life to fighting for others,” said Clinton in a tweet.

“.@TimKaine is a relentless optimist who believes no problem is unsolvable if you put in the work to solve it,” she added.

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

Kaine signed two letters this week calling for the regulations on banks to be eased, according to a Wednesday report published by the Huffington Post, thereby ”setting himself up as a figure willing to do battle with the progressive wing of the party.”

Charles Chamberlain, executive director of the progressive political action committee Democracy for America, told the New York Times that Kaine’s selection “could be disastrous for our efforts to defeat Donald Trump in the fall” given the senator’s apparent support of the Trans-Pacific Partnership (TPP). Just before Clinton’s campaign made the official announcement that Kaine had been selected, the senator praised the TPP during an interview with the Intercept, though he signaled he had ultimately not decided how he would vote on the matter.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Kaine’s record on reproductive rights has also generated controversy as news began to circulate that he was being considered to join Clinton’s ticket. Though Kaine recently argued in favor of providing Planned Parenthood with access to funding to fight the Zika virus and signed on as a co-sponsor of the Women’s Health Protection Act—which would prohibit states and the federal government from enacting restrictions on abortion that aren’t applied to comparable medical services—he has also been vocal about his personal opposition to abortion.

In a June interview on NBC’s Meet the Press, Kaine told host Chuck Todd he was “personally” opposed to abortion. He went on, however, to affirm that he still believed “not just as a matter of politics, but even as a matter of morality, that matters about reproduction and intimacy and relationships and contraception are in the personal realm. They’re moral decisions for individuals to make for themselves. And the last thing we need is government intruding into those personal decisions.”

As Rewire has previously reported, though Kaine may have a 100 percent rating for his time in the Senate from Planned Parenthood Action Fund, the campaign website for his 2005 run for governor of Virginia promised he would “work in good faith to reduce abortions” by enforcing Virginia’s “restrictions on abortion and passing an enforceable ban on partial birth abortion that protects the life and health of the mother.”

As governor, Kaine did support some existing restrictions on abortion, including Virginia’s parental consent law and a so-called informed consent law. He also signed a 2009 measure that created “Choose Life” license plates in the state, and gave a percentage of the proceeds to a crisis pregnancy network.

Regardless of Clinton’s vice president pick, the “center of gravity in the Democratic Party has shifted in a bold, populist, progressive direction,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee, in an emailed statement. “It’s now more important than ever that Hillary Clinton run an aggressive campaign on core economic ideas like expanding Social Security, debt-free college, Wall Street reform, and yes, stopping the TPP. It’s the best way to unite the Democratic Party, and stop Republicans from winning over swing voters on bread-and-butter issues.”

CORRECTION: A previous version of this article included a typo that misidentified Sen. Tim Kaine as a Republican. We regret this error.

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions

 

Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.

071midyearstatecoveragetable

But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.

071midyearstateeligibilitytable

The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

071midyearstateabortionstable

In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.