Although I am not necessarily taking a position on whether or not the living wills of terminal pregnant women should be respected, it is most helpful to my position to say that the state, with a compelling interest, can disregard the living will of any terminal individual. To clarify, a compelling state interest that would allow for the state to preserve the life of the terminal patient (thereby disregarding his/her living will), is defined as a situation in which the terminal individual possesses healthy, harvestable organs that can be used to improve, extend, or save (preserve) the life of another patient. As previously stated, the Equal Protection Clause applies to all individuals, and protects against all forms of discrimination; therefore, if the state allows the living will of a terminal pregnant woman to be disregarded, it must also allow for the living wills of other terminal individuals to be disregarded.
I would like to respond to some of the comments on my first posting, as well as to draw on the arguments of my fellow debaters in order to further explain my position.
A number of the comments mentioned the fact that if one is to rely on the Equal Protection Clause to say that all individuals should be treated equally, one must also acknowledge the fact that the fetus deserves equal rights under the law as well. This claim can be looked at from the pro-choice perspective or the pro-life perspective. If we go with the pro-choice perspective, one could argue either a) that the fetus is not a person and therefore doesn’t fall under the Equal Protection Clause, or b) that the choice of the mother in this situation is more important than the potential life of the fetus. To look at the claim from the pro-life perspective, I would like to draw from Eileen McDonagh’s ideas in Breaking the Abortion Deadlock. McDonagh claims that all “beings” deserve equal treatment; therefore, if one is to acknowledge the fetus’s personhood, one must also acknowledge the fetus’s rights. However, McDonagh also argues that “beings” cannot be discriminated against, nor given “special rights”; thus, if neither the mother nor the fetus can be allowed special rights, does it not follow that no individual in a terminal condition should be treated “specially” (i.e. pregnant mothers), and that all individuals in such a condition should be treated as equals under the law? The idea of “special treatment” can also be related back to the in-class discussion of pharmacists and doctors (Debate Club 5), who because of their profession, are allowed the “special” right to make moral refusals to dispense certain medications or to perform abortions. If we claim that all are equal under the law, pharmacists and doctors should not fall into a “special” category of health care professionals, just as terminal pregnant mothers should not fall into a “special” category of women/mothers/pregnant, allowing them to be treated differently than all other individuals with regard to living wills.
In her posting, Ashley makes the argument that “an incompetent, ‘brain dead’ individual… is unaware of what is happening to her body. Those close to her must realize this body is not really her anymore — her cognitive capacities are gone forever and therefore so is her personhood. Logically, no argument could be made that she is the same individual she was when she made the advance directive or living will, so why should it still be kept?” This argument can be expanded to include any terminal individual – whether pregnant or not. The question of “why should it [the living will] still be kept?” is exactly the question that needs answering when discussing pregnancy exceptions. If the state says that the advance directives of terminal pregnant women are of no legal importance, why must it not then say that the advance directives of those individuals in a situation such as Irma mentions (a person who did not check the donor box on his/her driver’s license) are of no legal importance, assuming that the individual’s organs can be used to extend the lives of numerous others? If incompetent, “brain dead” individuals are not the same people they were when the living will was created – if in fact they are “non persons” as Ashley points out – why should anyone’s living will be kept if their organs, etc. can save the lives of others?
Mara states 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). In the case of a terminal individual whose organs, etc. may be used to improve, extend, or save the life of another individual, doesn’t the state have a “compelling interest” to aid in improving, extending, or saving the life of this particular individual? In this situation, where does the state have the most compelling interest: in preserving the life of the incompetent terminal patient, who although s/he has a living will, has perfectly harvestable organs, or in saving the life of another individual who is competent and needs a certain organ? Ashley mentions the case of Joe Caulk, who tried to starve himself to death in prison. The Supreme Court, in deciding whether or not Mr. Caulk had a right to privacy (to kill himself by starvation), determined that the state’s “interest in preserving life” outweighed Mr. Caulk’s right to privacy. Looking at the Supreme Court’s decision in this case, claiming an “interest in preserving life”, one can draw a parallel to the debate about living wills. If the state has a legitimate and compelling reason to “preserve life”, then disregarding the living will of a terminal individual in order to save the life of another is completely justified under the law. Why not preserve the life of as many individuals as possible?
To conclude, I would like to quote again from Ashley’s posting. She asks “Why would you not postpone death to create life?” Instead of interpreting “life” in this question to mean the life of a newborn child, one can interpret life to be the “new life” that is given to patients when they receive an organ donation. By allowing the state’s compelling interest in the preservation of life to outweigh the living will of incompetent terminal individual, medical professionals will be able to give “new life” to other patients, thereby “postponing” death in order to “create” life.
Burch, Timothy. “Incubator or Individual?: The Legal and Policy Deficiencies of Pregnancy Clauses in Living Will and Advance Health Care Directive Statutes.” Maryland Law Review, Winter 1995.
McDonagh, Eileen L. Breaking the Abortion Deadlock: From Choice to Consent. New York: Oxford University Press, 1996.