Living wills exist to help ensure the “right of competent individuals to forego medical treatment as an expression of their right to bodily integrity and autonomy” which has been “consistently recognized by the United States Supreme Court for the last one-hundred years” (Burch 2). Pregnant women in this country do not have those same rights, even if though they are equally as competent at the time that a living will is created. Pregnant women should be treated just like every other person and if their living will asks that they not be kept alive by machine it should be respected. It should not matter whether or not they specifically addressed the possibility of pregnancy or if the spouse or significant other or partner or family agrees. “Because the mere presence of an embryo or fetus overrides a pregnant women’s explicit instructions, pregnant women are deprived of the rights of the terminally ill, cannot exercise personal choice, cannot have natural deaths, or die with dignity” (Roth 124).
Currently in the United States a majority of the states “give a woman fewer constitutional and common-law rights if she is pregnant and incompetent than if she were either (a) competent and pregnant, (b) competent and chose to have an abortion before fetal viability, or (c) incompetent and without a prior directive (pregnancy)” If that sounds confusing to you, it is meant to. There is a various assortment of statutes which make the rights of an incompetent pregnant woman extremely unclear (Burch 3).
The Constitution stands for pregnant women along with everyone else. The Fourteenth Amendment protects the right to bodily integrity and privacy, which includes the right to forego medical treatment. This was first recognized in Griswold v Connecticut, which concluded that the “Connecticut law at issue deprived married persons of the liberty protected by their fundamental right to be married and to make decisions about whether or not to use birth control” (Burch 4). This established a fundamental decision-making privacy right. This right was reaffirmed in Roe v. Wade as the court reiterated that while there “was no explicit basis in the Constitution for the right of fundamental decision-making privacy…it has consistently recognized a right of personal privacy and that personal rights can be seen as “fundamental” or “implicit in the concept of ordered liberty’ and are included within the zone of privacy protected by the Constitution” (Burch 5). Roe v. Wade established that a competent pregnant woman has the right to choose abortion, why should an incompetent pregnant woman have any less right?
In the middle of all of this common sense comes the state’s interest. The court’s have decided that “Certain realms of personal decision-making fall under a right of privacy and bodily integrity which restricts the state from infringing upon those decisions unless there is a compelling state interest to do so”(Burch 5). Most states have decided that the living will of a pregnant woman is a compelling state interest, especially a pregnant woman whose fetus is past the point of viability and will most likely rule in favor of the fetal life and could “prohibit life-sustaining procedures from being withheld or withdrawn” (Burch 6). The state’s interest should not override the privacy of the individual in the situation being discussed. If we’re being honest with ourselves, it is not the state that should be allowed to “mandate the outcome of this decision because the state will usually not suffer the consequences of its act” (Burch 12). It is the family and friends of the incompetent pregnant woman who will suffer the consequences. This does not sound like compelling state interest.
Overriding the wishes of a pregnant woman’s living will violates the Thirteenth Amendment which declares that slavery or involuntary servitude will not exist in the United States. “An incompetent pregnant woman who is kept alive without her consent by attachment to life-support systems becomes nothing more than a machine- an incubator or reproductive vessel for the potential life that she is carrying – in order to serve the state” (Burch 8). She is not being allowed to exercise her fundamental decision-making privacy right as to what should be “done with, or to, her body” because the state is controlling her. This involves aspects of slavery that the Thirteenth Amendment was addressing when it was written.
This situation being discussed is simply one more way in which women are being treated unequally. While looking at right-to-die cases in the absence of living wills, researchers have found that “courts treated evidence of women’s preferences as emotional and unreflective, and hence dismissed it, while treating evidence of men’s preferences as actual decisions needing to be respected”(Roth 125). This stereotype about women – that they are “emotional and unreflective” needs to be turned around. It is imposing on a woman’s ability to choose a natural and dignified death. Compared with men, women are not being treated equally as medical patients and do not have access to self-determination. Not only do men have greater rights, but the way the laws stand now, fetuses do as well. Currently, the “medical and political trends to aggrandize the fetus, seeking to give fetuses rights of their own in opposition to pregnant women, worsen the inequality” (Roth 126) and essentially choose the fetus over the woman.
The living will of a woman should stand, pregnant or not pregnant, competent or incompetent; they are entitled to right to choose whether or not they are kept alive via machines. They deserve to have this right respected by the state. The right to bodily integrity and privacy protected by the Fourteenth Amendment tells us this, the prohibition of slavery or involuntary servitude from the Thirteenth Amendment tells us this, the fight for gender equality tells us this, and common sense tells us this.
Rachel Roth, Making Women Pay: The Hidden Costs of Fetal Rights, Excerpt from Chapter 5
Mara wisely used Constitutional Amendments to support her position, but there are some arguments that need further examination.
Although it does not seem fair for the state to make decisions based on having a compelling state interest, I do not understand what makes this particular situation different than other circumstances. Eminent domain permits the government to take away people’s homes, businesses, or land if they believe there is a compelling state interest. Even though it is not determining the life or death of an individual, it has drastic effects on the person, oftentimes resulting in unemployment, financial difficulties, or even homelessness. As Mara explains, “[t]he state’s interest should not override the privacy of the individual in the situation being discussed,” but I find it difficult to believe that the government would respect the privacy of the individual if they believe it is in the best interest of the state.
I understand the argument that women should have the right to choose whether or not they are kept alive by machines, regardless of the fetus, but why should the fetus’ rights be denied? If women have the right to choose whether to live or die, shouldn’t the fetus? What makes the woman’s life more important?
For those who want to get involved and bridge the gap of inequality between men and women, Mara brings up an excellent point about who should begin to act. While women are able to explain why gender discrimination should be eliminated, men are the ones who already have the privilege necessary to change laws to ensure every individuals rights. But even though men have the privilege, they must first be aware of the gender discrimination occurring in the first place.
In her side of the debate, Mara states, in reference to living wills when a pregnant woman is incompetent, that “it should not matter whether or not [she] specifically addressed the possibility of pregnancy or if the spouse or significant other or partner or family agrees [with her decision to discontinue both her life and her pregnancy]”.
What about in cases where the woman DOES specifically address her wishes to stop life support should she become incompetent while pregnant. Even if it is explicitly stated in her living will that she wants to be permitted to die should she be incapacitated while pregnant, many states in the United States blatantly ignore this request with their “pregnancy clauses”; the unfair loopholes in the legislative system that not only “infringe on a woman’s right to refuse medical treatment just because she is pregnant… [but also] control the woman’s body, devalue it, and bring it near a state of involuntary servitude. The woman’s wishes are automatically ignored simply because she is pregnant” (Sperling 342).
If a woman has the right to terminate a pregnancy voluntarily (up to the point of viability) by the means of an abortion, why isn’t she permitted to terminate her pregnancy by the means of exercising her “right to die”? If she states that she does not want to be hooked up to a machine and robotically forced to physically exist, not even the presence of a fetus should violate her demand.
The part where it gets tricky is when the fetus is viable. Georgia, for instance, requires that the fetus be non-viable for the discontinuation of medical treatment, and only three other states “allow a woman to specify whether to carry out her instructions if she is pregnant at the time she become incapacitated” (Making Women Pay 123). The Minnesota statue is unique in that the 1998 amendment states that if a patient is incompetent but her continued care will enable the life of the fetus to continue, the doctor “shall presume that the patient would have wanted such health care to be provided”. However, this presumption will be reexamined in the presence of “clear and convincing evidence that the patient’s wishes, while competent, were to the contrary” (Making Women Pay).
Responding to Colleen’s comment, “If women have the right to choose whether to live or die, shouldn’t the fetus? What makes the woman’s life more important?” This depends on whether you consider the fetus as a person or not, but given that the fetus is a person; the fetus still has no right to intrude and use a women’s body for its own benefit because it is using it without her consent. One can also argue that a women’s decision is more important to take into consideration since it was the women’s wish to include this in her will and just like anybody else, her living wills should be respected. I do not believe it is a matter of who is more important, but rather it is also an issue of letting the woman die with dignity. Why can’t she be able to have this when everyone else does?
I have also been thinking about the woman’s family and the consequences of disregarding a woman’s living will. It is reasonable to assume that a probable reason why some individuals choose not to be sustained on life support is due because they may be concerned for their families’ financial resources, “Therefore, disregarding the pregnant patient’s directives ignores the cost of whatever harms the woman feared would come to pass to her family” (Sperling, 7). Waiting for the fetus to be liable could take many months! Is the government going to pay for all the time the woman is going to be staying in the hospital? ! I don’t think so. The aftermath is going to be left over to the family of the patient simply because the government feels like this is the best decision for all, when clearly the woman had already made this decision for herself. This also goes back to what Mara mentioned about how states should not be allowed to, “mandate the outcome of this decision because the state will usually not suffer the consequences of its act” (Burch 12). In conclusion, this legislation ignores, “not only the woman’s wishes with respect to herself, also with respect to her family” (Sperling, 7).
I absolutely agree that a woman’s living will should be respected even if she is pregnant. However, I think it is important to think of why states have statutes that make it legal to disregard a woman’s living will if she is pregnant. The liberal, feminist side of me wants to say that denying a woman her right to have her living will upheld is an outrage and is completely regressive in the movement for women’s rights. I believe that pregnant women’s living wills should be upheld because pregnancy should not decrease a woman’s equality. If men’s living wills are always respected, certainly disregarding women’s when they are pregnant sends the message that pregnant women are second-class citizens. The caring, compassionate, see-the-best-in-everyone side of me wants to say that states create these laws because they care about the woman’s family. Perhaps they want to try to save the fetus to preserve part of the woman who is dying. Then, the family will have that child, which is probably some comfort in the face of losing the mother. If doctors were to act on the woman’s living will, they might be forced to lose a fetus that could have survived.
The solution isn’t whether to uphold pregnant women’s living wills. The solution is having women write explicit directions in their living wills about how to handle the unlikely but possible situation of them being in a comatose state while pregnant. If that were the case, we wouldn’t be having this dilemma. We would simply read the woman’s living will and act according to its instructions.
This argument is well thought out and the use of constitutional amendments to support your thesis makes a strong argument on your behalf. Deciding whether or not a woman’s body is considered ‘state interest’ is a great way to pull those sitting on the fence to your side, being that many would argue the right to privacy and/or domain over one’s body. On the other hand, there are several arguments that can be made in which weaken your argument. First of all, we are speaking about fetuses that are post viability in some cases. We are fighting for the right of the woman to decide whether or not she lives or dies with dignity, but on the pro life side of the argument, one would argue about the baby that has the capability to live on its own? Doesn’t this fetus have a right to live? What harm does it cause the woman to carry the baby for the remainder of the term? I would argue that most people would have a problem removing the life support of an infant. What makes an unborn infant 2 weeks earlier any different?
One must weigh the benefits and downfalls of each decision. Is ending one’s life sooner more important than ensuring the new life of another? Since the living will does not specify the circumstance of when an individual is pregnant, how can a family member or friend be so sure that the mother would truly want to die sooner and kill her baby as opposed to remaining living to ensure the life of her child? Personally, if I was in that situation, I would want to do everything I could to allow life for my child. While Mara makes a strong argument claiming that using a woman’s body to raise a child while incapacitated in a form of slavery, one could also look at it as an act of love and a gift of life.
Mara has laid out a decent argument here for the right’s of pregnant women who have living wills. I would agree with Mara’s claim that the idea of women as “emotional and unreflective” (Roth 126) needs to be reversed. This psychology is prominent in society and needs to be corrected. Mara has made a good argument regarding the privacy rights of women as they have been unpacked through Supreme Court Cases. I am not so sure that Mara’s interpretation of the 13th amendment is correctly applied to this situation. I am not satisfied using the 13th amendment to justify women’s living wills. While I would agree that women should have equal rights when it comes to living wills I do not know if a argument regarding slavery can be applied in this case. If this argument is going to be made, an outline of the 13th amendment does not suffice for proof of this argument. I think this section would have been stronger had Mara made an argument that because an unborn fetus is a person the practice of ignoring women’s living wills is placing them under involuntary servitude to the child. Overall, Mara has made a good argument for the reasoning for entitling women to equal rights under the law. However, equal rights could also mean that no individual has a right to refuse life sustaining treatment. Mara should try to separate her argument from this channel of equal rights.
I agree that a woman’s living will should be respected even if she is pregnant. But I don’t think that is should apply to all stages of a pregnancy. If the fetus is almost big enough to live on its own, I think the mother should stay on life-support for long enough for the fetus to get more mature. That’s the same with calling it slavery when you keep a woman alive to keep the fetus alive. If the fetus is in the first trimester, and they keep the mother on life-support until the fetus is ready to be born, I do think that’s slavery, but if the fetus is a few weeks from birth, I don’t think it applies there. As Haylie says, “While Mara makes a strong argument claiming that using a women’s body to raise a child while incapacitated is a form of slavery, one could look at it as an act of love and a gift of life.”
I agree with Mara when she says “Roe v. Wade established that a competent pregnant woman has the right to choose abortion, why should an incompetent woman have any less right? I don’t think that an incompetent pregnant should have any less right than a competent pregnant woman. That’s the same as saying that women and men are not treated equally, and women who are pregnant are treated even less equal. I fully think that they should be treated equal and should be “entitled the right to choose whether or not they are kept alive via machines.”
I’m going to go the same way as Karin and say that instead of having to choose whether the family or the state chooses what to do with the women, the women should decide and write exact directions in their living wills about what to do if they are pregnant and in a comatose state.