A living will is created to insure “that the rights of persons may be respected even after they are no longer able to participate actively in decisions about themselves, and to encourage communication between patients and their physicians” (Sisti 3). Specific provisions may be included in living wills to guarantee that if a patient is in a terminal condition or becomes permanently unconscious, their wish to refuse life-sustaining measures will be fulfilled. This debate focuses on whether or not the living wills of pregnant women should be respected. However, I would like to argue that under the Equal Protection Clause of the Fourteenth Amendment, if we are to say that living wills have no value for pregnant women, they should have no value for anyone else.
Imagine that Sarah, a 25-year old, previously healthy, grad student, is involved in a car accident, leaving her permanently unconscious in a comatose state. Her condition has been verified by numerous medical professionals. In addition, Sarah has a living will that says she wishes to refuse any life-sustaining measures. However, due to the fact that she was previously in perfect health, all of her organs and her blood would serve as optimal donations, so her doctors decide to override her living will in order to harvest her organs. Is this move on the part of her doctors unconstitutional? Maybe, maybe not. A patient’s right to refuse medical treatment is not absolute (Sperling 48). My point is that if we are to say that living wills can be overlooked, we must apply this to all individuals whose organs, etc. may help extend the lives of others.
The Equal Protection Clause of the Fourteenth Amendment is a “constitutional guarantee that no person or class of persons shall be denied the same protection of the laws that is enjoyed by other persons or other classes in like circumstances in their lives, liberty, property, and pursuit of happiness” (legal-dictionary.com). Using this logic, it is fair to say that if medical professionals choose to override a patient’s end of life decisions, they must do so equally for all patients. Consider Skinner v. Oklahoma, in which Oklahoma’s Habitual Criminal Sterilization Act was challenged on the basis of discrimination. In this case, the courts decided that sterilization of habitual criminals was unconstitutional due to the fact that white collar criminals (e.g. those who were involved in fraud or embezzlement) were not affected by this law – even though white collar criminals often fit the definition of “habitual criminals”, they were never sterilized. The decision states, “When the law lays an unequal hand on those who have committed intrinsically the same quality of offense…it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment” (Skinner v. Oklahoma 3). This can be applied to the debate about living wills; discrimination occurs if we are to respect the living will of one individual and disregard another’s. Therefore, if the state is to disregard the living will of pregnant mothers, it must also disregard the living wills of those who have the potential to save other patients’ lives.
Justice O’Connor’s concurrence in Laurence v. Texas makes this point as well. O’Connor quotes Romer v. Evans, in which it was decided to disallow “a state statute that ‘impos[ed] a broad and undifferentiated disability on a single named group’” (Laurence v. Texas). Applied to living wills, this decision makes it clear that disregard of living wills cannot apply only to pregnant women.
O’Connor also makes the claim that “moral disapproval” is not legitimate grounds on which to justify a state statute. Applied to the debate about living wills, one can ask the question, “Does the state have a legitimate interest in deciding whether one individual’s living will has more importance than another’s?” Imagine, for instance, that two terminal patients have living wills stating that they refuse life-sustaining treatment. One patient is a middle school teacher; the other has been convicted on charges of distributing child pornography. In this scenario, can the state say that the wishes of the schoolteacher should be ignored in order to harvest his/her organs to save another’s life, and that the wishes of the convict should be fulfilled because s/he was a immoral person and his/her organs should not be used to extend another’s life? This same scenario can be used to understand the debate at hand: can one say that because society as a whole thinks that killing a fetus (by terminating the life of a pregnant mother) is morally wrong, that the wishes of the woman should be ignored, and that the wishes of those who are “moral” individuals should be respected? In so doing, the state would be legislating on the grounds of moral approval/disapproval; according to O’Connor’s argument, this does not constitute grounds for a legitimate state statute.
I would like to conclude with a quote from Justice O’Connor’s concurrence. She quotes Justice Robert H. Jackson, saying “there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally” (Railway Express Agency, Inc. v. New York). Why should the state be allowed to impose an unjust law solely upon pregnant women (obviously, a minority group)? What makes the situation of terminal pregnant women any different from terminal patients who are in otherwise perfect health? This is exactly what the Equal Protection Clause, when applied to living wills, would seek to do. Instead of allowing the law to be imposed on the minority (in this case, terminal pregnant women), and potentially allowing their rights to be infringed upon, the law would be imposed on the majority of all terminal individuals with a living will, whose organs, etc. could be used to further the life of another individual. In this way, equal protection under the law would be applied to all; no individual would be discriminated against because of their membership in a particular group, and the value of living wills would be the same for every individual.
http://legal-dictionary.thefreedictionary.com/Equal+Protection+Clause
Laurence v. Texas
Sisti, Emma Murphy. “Die Free or Live: The Constitutionality of New Hampshire’s Living Will Exception.” Vermont Law Review, Fall 2005.
Skinner v. Oklahoma
Sperling, David. “Do Pregnant Women Have (Living) Will?”
I think Jamie makes a logical argument about the application of the Equal Protection Clause to living wills. However, can a similar argument be made for the fetus? From a pro-life perspective, the fetus is a human being whose life deserves protection. Simply because its mother is incapable of making decisions and is in an unconscious state gives no justification for taking away the life of this human being. Under the Equal Protection Clause, everyone should have equal protection of the law to preserve one’s right to live, including a fetus.
Additionally, allowing the fetus to grow until it can survive outside of its mother is not outright denying the woman’s “right to die”, it is simply postponing it. Should somebody’s “right to die” impose death on another human being? Jamie states that “can one say that because society as a whole thinks that killing a fetus (by terminating the life of a pregnant mother) is morally wrong, that the wishes of the woman should be ignored, and that the wishes of those who are “moral” individuals should be respected?” By allowing the fetus to develop to a point of viability, however, both parties are satisfied. The woman’s wishes would (eventually) be respected as well as the wishes of the “moral” individuals.
Jamie also said that “if the state is to disregard the living will of pregnant mothers, it must also disregard the living wills of those who have the potential to save other patients’ lives.” There is a difference between not being able to use a woman’s organs to aid an already living person and not allowing a life to come into being. How many women would choose to deny their child the right to live simply because they want to die? Allowing a person who has the potential to save other patients’ lives to die does not directly kill another human being; allowing a pregnant woman to die does. We must ask ourselves what right is more important in protecting: the right to die or the right to live?
A concept that I believe is disturbing is that this regulation degrades a woman’s pregnancy. Again this goes back to the notion of abortion. It entitles the state to be able to use the body of a woman as ‘fetal incubators’ without their consent for however long they may wish (Sisti, 11). Would we allow this kind of treatment in other situations? For example, if a person did not check the donor check box when he/she got their driver’s license, would it be OK if the doctor’s completely disregarded their decision and used their organs? No! According to Emma Sisti, “[This] transform[s] [the women] into passive machines that simply require medical fine-tuning to stay alive.” (Sisti, 11).
Responding to Keisha’s comment, “How many women would choose to deny their child the right to live simply because they want to die?” My question for her would be the following one, how many women are going to be OK with the fact that their choice was completely ignored? If this is the case then, why does society give the illusion that a woman has a choice when in reality (in this situation) it is going to be disregarded? If the law truly wanted to respect the women’s right to privacy, then the women should need to add in her will the possibility of terminating life support if she was pregnant; this way the woman’s choice would be respected and not ignored.
Though a living will does not include to be effective when a woman is pregnant, it also does not include that it would be ineffective if she was pregnant (Sisti, 9). The purpose of a living will like Jaime stated in the beginning of her debate is to, respect the rights of individuals who are no longer able to themselves. If a woman’s wishes are not respected just like everyone else; we should not have living wills in the first place then because this indicates that pregnant women do not have a will.
Jaime delivers as strong argument in reference to the Equal Protection Clause. My main issue is that she is arguing that the state has the right to disregard an individual’s choice in regards to their body as long as they do it to everyone equally. Looking at this in a different view, one could then argue that is it ok for the government to seize a citizen’s land or outlaw alcohol as long as it is equally enforced upon everyone. Actions are right or wrong, and the idea that it should not discriminate against certain minorities should not even be a factor.
The article “Individual or Incubator” really grabbed me in the idea that based on a law that denies a woman the right to refuse life support is using her body as if it were a tool. Disregarding that individual simply because they are unable to fight for themselves anymore does not make that ok.
While Keisha points out that the majority of women, one would assume, would want to be left alive long enough to sustain the life of their child, not all women agree. With this in mind, the law needs to protect those indiviuals, the minority of the group, in order to ensure actually equal protection AND proper protection under the law.
I find the theory that in that particular situation asking the family what to do seems like a logical solution, but still does not fully respect the wishes of the mother. If there was no previous judgment made by the mother, then it makes sense to rely next on the family over the state, but overall, the pregnant woman ought to have the supreme choice in determining the uses of her body.
In addition, it is essential to remember that on the pro life side, life starts at conception. Therefore, one could argue that it is morally wrong to allow a mother who is relying solely on life support to end the connection and kill her viable/ pre viable fetus. In a pro life stand point, I compare the dependence a fetus has on a mother to the dependence shown by conjoined twins. These individuals have their skin and internal organs fused together, creating two unique and separate people, yet are physically dependent on the other. Would it be right to say that just because one has a right to privacy of their body, it should be legal to kill the other twin in order to remove that individual in order to create total autonomy for the remaining twin?
I think Jamie’s argument is unique, but I think we could construe it to argue that pregnant women should have their living wills protected. The Due Process Clause is tricky. The courts frequently use it to advocate for equal rights. However, it does not directly address equal rights. The last part of section 1 of the Fourteenth Amendment reads, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Due Process Clause really means that people’s rights are protected from being denied by the state. If every citizen has the right to make a living will and has a right to have that will respected in the case that she cannot think for herself, denying that right in the case of pregnant women would be violating the Fourteenth Amendment.
So instead of saying that we could use the Fourteenth Amendment to deny people their right to living wills, we can use the Fourteenth Amendment to uphold the idea that people’s living wills are valid – regardless of their medical or physical condition. With this proposal, we would extend rights to pregnant women and effectively include them in the majority of citizens who have the right to create a living will and have it recognized by the state.
While Jaime created a solid position based on the Equal Protection Clause and previous cases, there are points to her argument that needed further support.
Jaime explained that “the state would be legislating on the grounds of moral approval/disapproval,” which is not what O’Connor believes to constitute grounds for a legitimate state statute. But many cases are already based on the grounds of moral approval/disapproval. Look at the abortion cases; verdicts were determined based on the morality/immorality of the act, not on legal arguments. It would be nice to think Justices would be able to separate their beliefs on what is moral or not when it comes to making the vote, but it has been shown through past cases to be difficult.
The answer to the question, “What makes the situation of terminal pregnant women any different from terminal patients who are in otherwise perfect health,” is that pregnant women have a fetus growing inside their body. If the woman should have her rights protected, why shouldn’t the fetus? It is not that I agree that the living will of a pregnant woman should be ignored, but it is important to understand why they are the discriminated group in order to counteract the other sides’ arguments.
Keisha brings up an excellent question of whether the right to die or the right to live is more important. In reaction to Irma’s response to Keisha’s comment about women having their wishes ignored, I would have to refer back to Keisha’s argument that the woman’s wishes would not be disregarded, but simply delayed. In the case that she is on life support, the fetus can develop until viability, at which point the woman can be taken off of life support, and her wishes would still be met.
The idea that Irma brought up about eliminating living wills altogether related back to the class discussion last week on transgender laws. It is argued that discrimination laws have been passed sooner by excluding transgenders, but would it have made sense to not have non-discrimination laws at all? In relation to this debate, does it really makes sense to completely eliminate living wills for all people or should people fight to include pregnant women under the equal protection clause?
Jamie has made a decent argument here however, I am not sure that I agree with the idea. While I do agree that it is important to have equal protection under the law I do not think that ignoring living wills is appropriate. Consider the case of an 89-year-old man who has a living will that requests that he should not be placed on life-support. Under Jamie’s argument this man would still be placed on life support. This seems unnecessary and living wills for the elderly allow individuals who feel they have led a long a complete life to choose to die. Sometimes keeping an individual alive despite their living will result in poor quality of life. I was also a bit confused by Jamie’s interpretation of an “override” of a living will. If an individual has requested to not be placed on life-sustaining measures and the doctors follow this living will and upon death harvest the individual’s organs this living will has not been “overridden.” This issue could also be viewed through the lens of McDonagh’s abortion argument. Through McDonaghs perspective, the pregnancy, although viable, cannot be guaranteed special freedoms and exceptions from the law. When looked at from this perspective, it is not pregnant women who have limited rights but rather unborn children that have special rights that “override” the rights of the mother.
Responding back to Colleen, My purpose of me saying to eliminate living wills altogether was of course an exaggeration. I was just trying to make a point that if people are not going to respect the living wills of pregnant women then why do we have them in the first place. I also include the same idea that Colleen mentions, the solution would be not to get rid of the living wills but to include this scenario into them so that women can choose to use their bodies until the babies are liable or choose not to.
I thought Jaime had very good arguments on this side of the topic. I very much agree with Jaime when she says that “under the Equal Protection Clause of the Fourteenth Amendment, if we are to say that living wills have no value for pregnant women, they should have no value for anyone else.” I agree with that, but it makes me think of what some of the other commentors have brought up. If a woman is pregnant with a child that would turn out fine, is it ok to keep the woman on life-support until the fetus is mature enough to leave her body, then let her off life-support. As some of the other commentor’s said, the woman would get her wish eventually.
Haylie said, “if there was no previous judgment made by the mother, then it makes sense to rely next on the family over the state, but over all, the pregnant woman ought to have the supreme choice in determining the use of her body.” I agree with that. What if a woman is pregnant and hasn’t filled out a living will, or hasn’t updated or changed it since she got pregnant? In that case then, I think the family should get to decide what happens before the state does because the family obviously knows her better than the state does.