Women sue Kansas over law that disregards end-of-life wishes during pregnancy

Washington Post

7 days ago

Three women and two doctors are suing Kansas over a law that nullifies a person's decisions about end-of-life care if they are pregnant in what appears to be the first such lawsuit since the Supreme Court overturned Roe v. Wade and a constitutional right to abortion.
The women, one of whom is pregnant, argue that preventing pregnant people's advance medical directives from being acted upon violates their rights to personal autonomy and equal protection under the Kansas Constitution, according to a petition filed Thursday in a state district court.
All states have laws allowing people to create advance directives spelling out their wishes for medical care when they can no longer make those decisions themselves. A majority of those laws limit choices about care if a patient is pregnant. While some states base the restrictions on whether the fetus is already viable or the possibility of a live birth if the pregnancy is allowed to continue, Kansas is one of about 10 states that invalidate advance directives for pregnant patients regardless of the gestational age of the fetus.
Such restrictions have been in place for decades and rarely challenged in court. But scrutiny of end-of-life laws surged this month after news emerged from Georgia about a brain-dead pregnant woman whose family said she was kept on life support to obey the state's abortion ban. The case raised complicated questions about how end-of-life decision-making powers and abortion bans can coexist in a post-Roe era — and whether they should.
The women bringing the Kansas lawsuit say the state's pregnancy exclusion wrongfully negates the 'deeply personal' health-care decisions they have specified in their advance directives if diagnosed with a terminal condition while pregnant. The state's law 'unjustly, discriminatorily, and categorically disregards their clearly expressed end-of-life decisions' when they are pregnant, the lawsuit says.
The physicians participating in the suit allege that the law's lack of clarity has made them uncertain of what treatment they can provide, exposing them to civil and criminal liabilities.
Emma Vernon, the plaintiff who is pregnant with her first child, said that under Kansas law, she would not 'get the peace of mind a living will is meant to provide.'
According to the lawsuit, Vernon has specified in her declaration that if she is diagnosed with a terminal condition during her pregnancy, she would accept life-sustaining treatment only if 'there is a reasonable medical certainty her fetus will reach full term and be born with a meaningful prospect of sustained life and without significant conditions that would substantially impair its quality of life.'
'I am no less capable of planning my medical care simply because I am pregnant,' Vernon said in a statement Thursday. 'I know what is best for me.'
The five plaintiffs are being represented by attorneys from Compassion & Choices, a group that advocates for access to physician-assisted dying, and If/When/How, a legal reproductive justice nonprofit. They are also represented by a Kansas law firm led by Pedro L. Irigonegaray, who served as an attorney for George Tiller, a Kansas doctor who performed late-term abortions and was killed by an antiabortion extremist in 2009.
The lawsuit asks the court to bar the Kansas Attorney General's Office and state Board of Healing Arts, which oversees health-care professionals, from enforcing the pregnancy exclusion. It also names the district attorney of Douglas County, where the lawsuit was filed, as a defendant. None of the defendants immediately responded to a request for comment Thursday.
Advance health-care directives in Kansas have two parts: a durable power of attorney and a declaration. The power of attorney allows patients to designate another person to make decisions, including about life-sustaining measures, when they no longer can. The declaration is a patient's living will, in which they can state whether they would want life support — such as a ventilator or feeding tube — withheld or withdrawn if they develop a terminal condition. Patients must complete one of these before they sign their directive, making it legally binding.
But the declaration 'shall have no effect during the course of the qualified patient's pregnancy,' Kansas law states.
Such a restriction calls into question 'the enforceability of the directives of all Kansans capable of pregnancy,' the lawsuit says, adding that it undermines their equal protection rights by 'subjecting them to a lesser standard of care than that afforded all other patients.'
The last time the issue was cast significantly into a national spotlight was more than a decade ago, before the fall of Roe, when the family of a brain-dead pregnant woman brought it to court in a harrowing, high-profile Texas case.
In 2014, Marlise Muñoz was around 14 weeks pregnant when she was declared brain-dead, but doctors acted against her wishes and refused to take her off life support, citing the state's advance directive law. As in Kansas, advance directives in Texas have 'no effect' if a patient is pregnant, according to state law.
Muñoz's husband said she told him and her parents that she did not want to be kept on life support, though it does not appear that she formally signed a document. But for months, she was kept on a ventilator until a judge ordered the hospital to remove her from it. The judge also ruled that the advance directive law did not apply because she was dead and could not be a 'pregnant patient.' By then, the hospital had already acknowledged in court documents that the fetus was not viable.
Exclusions like those in Kansas and Texas reflect 'many states' public policies in favor of preserving fetal life,' said Nina Kohn, a law professor at Syracuse University. With Roe struck down, advance directive restrictions for pregnant patients could be seen as a stronger tool for states interested in protecting fetuses, Kohn said, describing the notion as 'constitutionally problematic.'
In 2018, four Idaho women brought a lawsuit, also backed by Compassion & Choices and If/When/How, challenging that state's pregnancy exclusion. A federal judge ruled in 2021 that the exclusion was unconstitutional and that requiring advance directives to be voided for pregnant patients violated their First, Fifth and 14th amendment rights.
Since Roe, abortion-related legislation has largely been left to the states. Across the country, advocacy groups have used ballot initiatives for constitutional amendments to restrict or enshrine abortion protections at the state level. In 2022, voters in Kansas rejected a proposed amendment that would have allowed state lawmakers to enact a near-total ban.
If future challenges over patient rights at the end of life were to be filed, Kohn said, they would raise questions about what laws — federal or state — would be at play.
'The experience of being pregnant in America is going to increasingly look very different in different states,' she said.