Excluding Pregnant Women from the Right to Terminate Life Support

Posted in: Health Law

Two weeks ago, The New York Times ran a story about a pregnant 33-year-old woman in Texas, Marlise Munoz, whose family has been unable to have her removed from life support, notwithstanding her wishes and those of her family. The hospital has refused to remove Munoz’s life support because of a Texas law that prohibits the withdrawal or withholding of life-sustaining treatment from a pregnant patient. Political groups have weighed in on the controversy in predictable ways, corresponding to their views regarding abortion. This column will analyze the dilemma as one that is, in some respects, legally and morally distinct from the situation that confronts us in the abortion context.

Prohibiting Removal/Withholding of Life Support During Pregnancy

Why would a state (or, in fact, more than half of the states in the U.S.) pass laws prohibiting the removal or withholding of life support from pregnant women who otherwise qualify for such removal or withholding through a living will or health care proxy? One obvious answer is that pro-life groups might have played some role in the emergence of this kind of legislation, in Texas and elsewhere.

For a person who believes that an embryo or fetus ought to have the same entitlements as a born individual, taking a pregnant woman off life support, or failing to provide it in the first place, might seem very much like the murder of a child. At the very least, a pro-life individual could regard such withdrawal or withholding as comparable to removing a healthy baby from life support. And indeed, from a pro-life perspective, removing life support from any patient whose heart is still beating could appear perilously close to homicide, even without a pregnancy at issue. To end the life of a child at the same time might, on this view, add intolerable insult to injury.

In addition to the pro-life argument, one might find a distinct reason for refusing to terminate or withhold life support for pregnant women, at least in some cases. If the woman in question is no longer conscious—or, as in the Texas case at issue, has by some reports been declared brain dead—we must rely on her earlier statement of intent to determine what her wishes would be. In Cruzan v. Director, MDH, the U.S. Supreme Court suggested in dicta that there is a right on the part of a patient to refuse life support, as a matter of Fourteenth Amendment substantive due process liberty, if the patient’s wishes can be demonstrated by clear and convincing evidence. In Cruzan itself, however, the Supreme Court denied Nancy Cruzan’s petition, due to the absence of such clear and convincing evidence.

Why is the denial in Cruzan relevant to Munoz’s case? In Munoz’s case, and perhaps in that of many other pregnant women on life support, the woman might, at the time she indicated her wishes in a living will or otherwise, have failed to anticipate that she would be pregnant and on life support at the same time. The default life support situation in most people’s imaginations, in other words, may be one in which the patient is not pregnant and is therefore making a decision that is distinct from the decision of a pregnant woman.

The woman is, on this view, deciding that if she were to find herself in a medically catastrophic situation, she would not want to be kept alive through mechanical means just for the sake of remaining technically alive. If she were asked separately, then, whether she would want to be kept alive if necessary to sustain an existing pregnancy, her answer might well be different.

In Munoz’s case, her pregnancy had progressed to fourteen weeks by the time she collapsed and required life support. Because most abortions occur prior to fourteen weeks gestation, we might infer that the pregnancy at issue in Munoz’s case is a wanted pregnancy. And if so, then the law in question—or the hospital’s interpretation of the law in this case—might be employing a presumption that the intentionally pregnant woman who is on life support would choose to continue her pregnancy if she knew the facts.

Some Problems With the Arguments Considered Above

One problem with defending the pregnancy exception to the right to refuse life support on pro-life grounds is that U.S. constitutional law currently protects the right to terminate a pregnancy. The fact that an opponent of abortion might regard the cessation of life support as murder would, accordingly, have little weight in justifying the Texas law (and others like it) in the face of a constitutional challenge, just as opposition to abortion would have similarly little weight in justifying a law prohibiting all abortion.

The second argument, though it references the patient’s intentions, is flawed as well. The law could have expressly asked about the wishes of the patient, instead of categorically excluding pregnant women from the group of patients having access to the option of terminating life support. Living will materials could even ask a patient whether a pregnancy would alter her wishes.

Furthermore, even if we assume that a particular pregnancy is a wanted pregnancy, it does not necessarily follow that the pregnant woman would want to continue the pregnancy if she became unable to survive without life support. People’s decisions to remain pregnant are contingent on their circumstances, and such a drastic change in circumstances could predictably alter their plans regarding a pregnancy.

To assume otherwise is to destabilize living wills and other expressions of end-of-life decisions. After all, there are many conditions that the patient on life support might not have anticipated at the time she created her living will—she might have expected to be older, or she might not have realized that one of her children would very much like her to remain on life support. These events are no more foreseeable than a pregnancy, yet they do not ordinarily unravel a living will or health care proxy.

When all we have is the woman’s express statement or, if she has designated a health care proxy, that of her family members, and that statement indicates the wish to discontinue or reject life support, it would seem most prudent to assume that unless she has listed exceptions (such as “unless I am pregnant”), she really did mean what she said.

A Stronger Case Than Abortion?

Keeping in mind my explanation of why one cannot justify the Texas law and others like it simply by citing one’s opposition to abortion, now consider the possibility that the law at issue—at least as applied in Munoz’s case—is easier to justify than a law banning abortion. Doctors in this case have reportedly declared that Marlise Munoz is brain dead. This means that she is no longer capable of having any experiences at all, positive or negative. Whether life support is continued or terminated, the patient in this case is effectively no longer with us—she cannot feel pain or distress as a result of being pregnant, and she cannot feel frustrated at having her wishes ignored.

Her fetus, by contrast, is alive and—let us assume for purposes of this argument—capable of developing into a healthy infant. To terminate the woman’s life support is to cut off the fetus’s supply of oxygen and nutrients and therefore to kill him or her. Furthermore, unlike in the case of abortion, this killing in no way restores a living individual’s bodily integrity. Instead, it results in two deaths instead of just one, with no corresponding benefit enjoyed by the dead woman.

One might accordingly argue that even though a live woman does have an interest in terminating her pregnancy so that she can continue living her life unencumbered by an internally occupying presence, a dead woman enjoys no similar interest. We ought to respect the dead, as a service to those currently living and anticipating death in the future, but such respect for the no-longer-living would seem to many to be far less compelling than the state’s interest in the potential life that resides in the fetus and that the Supreme Court has recognized in its abortion precedents.

A Weaker Case Than Abortion

Though I am not unmoved by the plea for the fetus’s life over a dead woman’s wishes, there is an argument—in my view, a strong argument—that the right of anyone, pregnant or not, to terminate life support is even more fundamental than the right to abortion. The right to terminate or refuse life support is a variant on the right to refuse medical treatment. In Washington v. Glucksberg, the Supreme Court held that there is no constitutional right to physician assistance in dying. But in drawing this conclusion, the Court distinguished between removing a feeding tube or a respirator, on one hand, and taking a life-ending medicine, on the other, and a majority of the Court has indicated its view that the former would be constitutionally protected.

This right against a governmental battery (defined in the law as an unconsented touching) belongs to everyone, male and female, and it means that no matter how beneficial a treatment might be for the individual to be treated, she still has the right to refuse it. It follows a fortiori that the government may not compel one person to receive unwanted medical treatment in order to promote someone else’s interests. Otherwise, the government could compel the donation of blood, bone marrow, and kidneys, to save others’ lives. Yet medical treatment virtually always requires consent.

When a woman decides to terminate life support, she therefore chooses to withhold her consent to the imposition of mandatory medical treatment. That she is pregnant does not convert her choice into an abortion, since her objective is not to kill the fetus, but, rather, to stop existing on life support. In the language of Catholic doctrine, the pregnant woman’s decision to forgo life-saving medical treatment is a case of double effect: the fetus’s death is a collateral, rather than an inherent, consequence of her decision to reject life support. Similarly, if a pregnant woman with cancer decides to undergo chemotherapy to lengthen her own life, but the chemotherapy foreseeably results in the death of her fetus, the chemotherapy does not thereby become the ethical equivalent of an abortion.

For Texas to insist that Marlise Munoz remain on life support—receiving treatment against her will and without her consent—as a means of keeping her fetus alive—effectively converts Munoz into an incubator, one with no agency over what the hospital or the government may do to her body.

To appreciate how radical such an infringement upon a woman’s bodily integrity truly is, consider again that we do not require anyone to donate blood, whether the recipient is a friend, a parent, a sibling, or even a child. This is true despite the minimal loss associated with blood donation, and the tremendous gain for those who could die without a transfusion. We also do not require people to donate bone marrow or a kidney, no matter how pressing the need on the part of the potential recipient and no matter how healthy and able the would-be donor might be to safely sustain the costs and risks associated with donation. And perhaps most importantly, we do not even require people to donate their organs upon death.

The individual’s interest in being buried intact is such that we allow other people to die for lack of an organ, despite the fact that their lives could have been saved by transplantation of an organ that no longer does the dead person any good. This means, for example, that if a 30-year-old woman’s skull is crushed in a car crash but she has not indicated a wish to donate an organ (nor are her family members willing or able to make the decision to donate on her behalf), her heart, her kidneys, her liver, and any other usable organ or tissue in her body must be allowed to rot in the ground or be burned in a crematorium, rather than utilized to save another person’s life. In this scenario, moreover, the other person in question is not legally a “potential life,” as an embryo or fetus is, but an uncontroversially recognized individual whose life could easily be saved without harming any other living individual.

I have my own doubts about extending rights to the dead at the expense of lives in being, but our current law remains what it is. In the light of this fact, I would conclude that the Texas law and others like it represent unconstitutional denials of both the equality and the substantive due process liberty of pregnant women. Such laws violate the right of a person to refuse medical treatment, and they do so not in the person’s own interests but in the service of using that person’s body as an instrument to house a fetus.

By refusing to disconnect Marlise Munoz from life support, the hospital accordingly commits an ongoing battery against her, a battery that it almost certainly could not and would not have committed against a man, or against a woman who is not pregnant, notwithstanding the benefits that might result and regardless of whether the man or woman was even alive or dead. Unless our law and society undergo a major evolution toward Good Samaritanship, it is thus plain to me that Marlise Munoz must be permitted to have her life support disconnected.