Sex, Power, and Politics Blog

I maintain my argument that the rest of the states should adopt pregnancies clauses in the carrying out of living wills in order for the government to protect its interests in the fetus.  I will support this argument by addressing the counterarguments that have been posed throughout the week.  Jaime argues that these clauses should be applied to people regardless of gender through the use of the Equal Rights Amendment.  The Amendment would act as an umbrella for the “state to preserve the life of [any] terminal patient (thereby disregarding his/her living will), [in] 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.”  So following this argument Jaime and I agree, as long as the fetus falls under the protection of this umbrella of state protection.  As I have stated, the life of the terminal individual is over and therefore it is most practical and ethical to maintain the potential life.

Mara argues that it is a person’s right to have her living will upheld under any circumstance, pregnant or otherwise, her word should be the ultimate authority.  She goes on to argue that the state should not have a legitimate concern in pregnant women because it is not concerned with the preservation of other bodies.  She is in effect pointing out the ‘hypocrisy’ of only dismissing the living will in the case of pregnant women.  Similar seated situations should be handled similarly.  This however is not a similar situation.  Mara proposes that using bodies for science would be the same as using the pregnant woman’s body to maintain the life of the fetus, but there is no life that is directly helped with the former.  There is an argument to be made that many lives would be helped with the scientific research that could result from the research that would be done but I’m unsure about the available time and money there is to follow through on this proposition.  In sustaining the life of the pregnant woman there is a direct life that is saved, that of her fetus, and that is unquestionable.

I also find Mara’s statement about dignity relevant to strengthen my argument.  She is likely correct in assuming that it is important to most people that their bodies are handled with care and according to their wishes after they have died.  This however is a wish. The pregnant woman is just a body at this point and is unaware of what is happening.  Doctors would of course be treating her body carefully because they are trying to sustain the life of the fetus inside, and after it is born the body of the woman will continue to be treated in a dignified manner and buried or cremated according to her desire.  The human attachment to the body after the ‘person’ is gone should be disregarded for a short period of time in order to create a new life.

Mara also argues that this preservation of life is an act of discrimination by the state “based on an ASSUMPTION that [the pregnant woman] is not intelligent enough to know what she was doing.”  This is not an assumption about intelligence.  The state would be preserving the lives of all pregnant women, those with high IQs or comprehension and those with minimal levels of both.  My claim is that her decision may have been based on incomplete information.   There is a potentiality that she was not given all of her options or had been given access to all the sources of information available.  The state’s interest here is in saving a life, not degrading one, and is making no assumptions about a woman’s intelligence through this action.

Mara goes on to state that “through our many class discussions it has been concluded that the state should not withhold rights based on the idea that someone might regret something. The state should also not make decisions for pregnant women because they possibly did not know what they were taking about when they expressed what they wanted.”  Yes, class discussions have yielded conclusions like these, at least from those who have been vocal about our opinions.  However our class does not determine the proper role of the state and in reality the state does play an inside role in preventing such regret. This is evident in the implementation of 24 hour waiting periods for abortion.  The precedent is with the state trying to prevent regret.  Martin’s point ties in nicely here as well, he states that if my “argument could be made [by] explaining why laws should be without the use of precedent [he] would be more convinced.”

Looking at precedent is important.  If we threw out precedent and merely acted how we thought to be moral there would be chaos.  We would soon be living in a state of anarchy completely dictated by individual will.  Without precedent, whose morality should be followed?  Who would determine what morality is?  To what extent should the determined morality be followed?  Straying from precedent into the realm of personal (transmitted into public) morality is extremely dangerous in a world of conflicting views of ‘how the world should be’.

Colleen poses the question, “what makes the life of the fetus more important than respecting a woman’s decision to reject life sustaining treatments?”  The life of the fetus is not being held as more important than the woman.  But yes, as the woman has no chance to live the fetus, a potential life, becomes more important in the eyes of the state.  As John Stuart Mill inferred in his harm principle, one may do whatever one likes until it touches someone else’s nose.  While the United States government is much more intrusive in the lives of its citizens than any state Mill would enjoy envisioning I still think his argument applies here.  The living will of the woman should be held up when ethical and possible but this is a clear case when her freedom to dictate her will would be harming another individual.  It would in fact be killing an individual—the ultimate, irreversible harm and therefore the state must protect the child.

Haylie’s slippery slope concern interested me.  She asked if because of the fact that the personhood of the pregnant woman in question is gone “would one then [be able to] argue that it is morally acceptable to mutilate a corpse simply for the fact that the soul has left the body?”   However this would be in no way legitimate because there is no justifiable purpose for such an act.  By rejecting a body’s personhood I’m not advocating that we should disrespect the memory of the dead, and as Haylie said this would cause pain for people who cared for this individual when they were alive.  I’m simply advocating the use of the woman’s body for a greater good, in producing the life of her unborn child.  No good would be coming from mutilation but an unarguable good would come from enabling a child to be born.

Rejecting a pregnant woman’s living will is a simple question of importance.  What is more crucial, that the state protect the right to live or the right to die?  The lawful, ethical, and moral assumption for the state here would be to protect tangible life for its (potential) citizens.

A woman’s choice should not be ignored simply because she is pregnant and it certainly should not be ignored because she may have possibly sort of not known exactly what she wanted.

Compelling state interest is complex. Sometimes the state has an interest in property, which we know because of eminent domain, as Colleen brought up. The state taking away people’s homes, businesses, or land is not the same as the state denying a woman the right to have her decision upheld. Also, the when the state has a compelling interest in property, it can be about anyone’s property. When the state has a compelling interest in overriding a living will, it is only about the living will of a pregnant woman. Ashley states in her argument that, “It is also pertinent to clarify that the state has a legitimate interest in the lives of its citizens, especially in those of pregnant women.” The state does not have a compelling state interest in the lives of pregnant women. If it did, it would not be disrespecting them by ignoring their requests. The state believes that it has a compelling interest in the fetus. If the state felt like it could do what it wanted to comatose incompetent people based on its interests, why do they not use every single body for science? Is it not in the best interest for the state to learn more about live-saving procedures, different diseases and disorders? It is because there is a sense of dignity involved. People have a right to choose what is done to their body and the state has to respect that. It should be no different with pregnant women. The state does not have a compelling interest in fetuses.

Stating that there is a compelling state interest in all fetuses contradicts what has been established in Roe v. Wade (and many cases thereafter) which is that competent women are allowed to abort their fetuses. Ashley argues that, “If she wanted to end its life she would have done so in the first trimester. Does the fact she did not seem to indicate she wanted to have the baby? Of course it does”. No it does not. The fact that she did not abort her baby indicates that while she was alive, she wanted to have a baby. She may have decided in her living will that if she is in a state, in which she would be kept alive by machines, and will not be around to raise this child, that bringing a baby into the world would be mean. She may have decided that since she would not be there to care for this baby, it should not be brought into a harsh, scary place all alone.

There are many what ifs involved in this sort of situation. What if the pregnant woman has no living will and the family wishes for her to be let go but the state will not allow it? As Karen brings up, what about when the “woman does specifically address her wishes to stop life support should she become incompetent while pregnant” and the state will ignore this direct request, regardless of what the family says. The family’s means of getting what they want should not be through the state’s exercise of ignoring a woman’s living will. Karin suggests, “Basically since the woman’s humanness as already died (in her lack of ability to reason, (the family could grieve her loss and take comfort in the idea that her body is being used to potential life”.  Forcing a family to go against the woman’s wishes and keeping her alive longer than she would have wanted does not allow much room for grieving. In fact, it is not known that every family would want this baby, although many of the comments suggested that there is no question about it, why wouldn’t the family want to, as Karin says it, “preserve part of the woman who is dying”. Ashley also brings up the point stating that respecting a woman’s living will “would rob families and others that cared for her of the opportunity to keep a part of her with them, in the form of a child.”  Is it not likely that if a woman has a living will to be taken off life support she has discussed this with her family? Even if she hasn’t, isn’t it likely that her family and others that cared for her would want to RESPECT what she wanted and not ignore it? The state going against what someone’s loved one has decided will be harder on the family emotionally and financially.

Seriously consider finances, babies cost a lot of money and the mother will not be there to help with this. In fact, as Irma brings up, the woman may have chosen “not to be sustained on life support is due to their concern for their family’s financial resources”. It costs a fortune to be kept alive by life supporting machines. In fact, “Only Pennsylvania specifies that the state will pay the costs for keeping a pregnant woman alive against her wishes” (Roth 123). So if a woman has considered the financial burden of being kept alive by machines and chosen to end life support in the event of incompetency, the state should respect that. The state is not doing anyone a favor by keeping her and her costly fetus alive.

Fetus vs. pregnant woman, this seems to be one of the bigger battles here. Haylie asks the questions, “Doesn’t the fetus have the right to live? What harm does it cause the woman to carry the baby for the remainder of the term?” It actually is a lot of harm. Why is it appropriate to disregard the woman’s constitutional right to privacy and to use her body as an incubator for another human being without her consent? Haylie argues that, “most people have a problem removing the life support of an infant. What makes an unborn infant two weeks earlier any different?” The infant has not been born, nor does it have the right to decide whether or not it is taken off life support. In fact, in the situation that Haylie suggests, it would be the parent’s decision anyway. Sort of like how the mother is deciding this for herself now.

There is a serious problem with part of Ashley’s argument, since it completely degrades women in general. Ashley states, “For instance, how do you know the woman was truly aware of the consequences of her actions when she made the will?”  We don’t know exactly that she knew every fact and figure or what everyone around her though. We can be sure that she was making the best decision she knew how to at the time, with the information we had. Why is she being discriminated against based on an ASSUMPTION that she is not intelligent enough to know what she was doing? Ashley is suggesting that women should not be trusted to make a decision on their own and that the state should step in and make decisions for them. Through our many class discussions it has been concluded that the state should not withhold rights based on the idea that someone might regret something. The state should also not make decisions for pregnant women because they possibly did not know what they were taking about when they expressed what they wanted.

What needs to happen is that all living wills need to have explicit directions regarding pregnancy, so that all of the “what ifs…” are not so confusing. The state also needs to respect the decisions of pregnant women and uphold their living wills.

Rachel Roth, Making Women Pay: The Hidden Costs of Fetal Rights, Excerpt from Chapter 5

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.

The purpose of a living will is to allow individuals to specify what type of life sustaining treatments they would want in the event that they were injured or developed a terminal illness and were no longer able to make or communicate decisions for themselves (Roth 122).  While people are entitled to have some authority in what happens to them after they die they should not be able to decide this unilaterally.  Their decisions have an impact on their families, friends, doctors, and most directly, on their unborn children.  It is also pertinent to clarify that the state has a legitimate interest in the lives of its citizens, especially in those of pregnant women.  Reflecting this interest, thirty seven states specifically address pregnant women in living will statutes and thirty four states of these states mandate certain criteria in the event that a living will has to be carried out.  The criteria range from automatically invalidating a pregnant woman’s living will (in more than twenty states) to allowing women to decide regardless of their pregnancy and the stage of the fetus’ development, which occurs in two states (Roth 123).  While this is a step in the right direction the rest of the states should be forced to join the status quo and protect the life of a woman’s unborn child, even if she asked in her living will to not be given life sustaining treatment under any circumstances.

Stipulations that force a woman to be kept alive while the fetus has a chance to survive clearly balances a woman’s right to refuse treatment and control over future care with the state’s interest in protecting the life of the fetus.  One must realize we are talking about an incompetent, ‘brain dead’ individual who is unaware of what is happening to her body.  While her heart continues to beat and her lungs continue to fill with air she cannot live without these machines.  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 prior directive should not have the moral authority to govern the treatment of this, in effect, new person, or to be blatant, non person (Sperling 45).  The priority in this situation should be the fetus.

What I mean is simple.  While “her ‘story of life’ does not end with her biological condition of incompetence” she no longer has the mental capacity to be a human being (Sperling 45).  In most cases she cannot feel.  She cannot think.  She cannot move.  She is dead in almost every sense of the word.  Literally, her body is an uninhabited shell—except for one thing: the fetus.  Conversely, the fetus carries a promise of life.  It has the potential to become an independent human being and therefore the state should have an obligation to protect it (Sperling 45).

Allowing the pregnant woman to die would result in the death of another, potentially separate, human being.  The mother, even if she consented in her living will to end her life while she was pregnant is not consenting now.  One may argue that keeping her alive against her wishes to save the child would be like keeping the woman from her right to have an abortion, but when looking at it objectively is it really?  For instance, how do you know the woman was truly aware of the consequences of her actions when she made the will?  There was no twenty four hour waiting period or other important restraints on flippant decision making.  One cannot be sure if all of her options were even presented to her at the time she made this decision.  And if she was fully aware of all of the options, how do can you be sure she didn’t change her mind after making the will and hadn’t had the opportunity to change it?  She may not have expressed her thoughts to other people.  These questions are especially important when making decisions about women carrying babies in their second or third trimester of development.  If she wanted to end its life she would have done so in the first trimester.  Does the fact she did not seem to indicate she wanted to have the baby?  Of course is does.

It is also important to recognize that abortion laws are established and maintained for healthy women who do not want to give birth to their child(ren) for a variety of reasons that a ban on abortion would force them to ‘endure’.  This is not the case with a terminal mother.  The live birth of her baby would have no affect on her life and therefore it would not be preventing her from anything conscious to her.  The ‘follow up’ on her wishes after the death of her brain would only affect the people around her.   It would rob families and others that cared for her of the opportunity to keep a part of her with them, in the form of a child.  Would a mother really object to that?  Keeping the fetus alive is not denying a woman’s right to die; it is simply creating a win-win situation for all involved.  The woman’s desire to die would simply be delayed.  Once viable, the mother’s wishes will be followed and her body would be allowed to expire completely but until then it is rational and ethical to mandate doctors to protect the child.

The Equal Protection Clause should also be applied to protect potential life because we are indeed talking about a human, albeit small and momentarily dependent.  A fetus is a human with eyes and a heart beat after only six weeks.  At ten weeks it is a ‘small scale’ baby, with its body in complete formation.  At twenty four weeks the fetus is considered viable and could survive outside of its mother’s womb.  The fetus is not a mass of cells, it is a growing human organism that should be able to experience life and not be sacrificed to meet a demand for ‘immediate death’ (Understanding Pregnancy Week by Week).

To draw on the legal side of the argument, pregnancy clauses in living wills are needed because an advance directive or living will cannot authorize the performance of an unlawful act.  Those who would comply with a woman’s request to withdraw from life sustaining treatment, knowing it would kill the child, would be committing a criminal offense (Sperling 50).    Furthermore, it doesn’t make sense to claim that the state has no interest or ‘say’ in when or how you choose to die.  This interest is reflected in suicide laws.  A concrete example of this is that of Joe Caulk, a man who tried to starve himself in prison because he was set to serve a life sentence without the possibility of parole.  It was determined by the Supreme Court that Caulk wasn’t incompetent or incapable of making the decision but the State’s “interests in maintaining an effective criminal justice system and in preserving life” took precedent over his right to privacy (http://www.nhbar.org/uploads/pdf/LexLoci47.pdf).  The government has an established say on when it is and is not appropriate for an individual to die.

Finally, third trimester abortions are outlawed.  Why would an individual be able to choose to eliminate their pregnancy via a living will if they would not be able to do so during this stage of pregnancy when she was alive?  It would be a step backward for the state if it allowed pregnant mothers to forgo medical treatment that could result in a live birth of their child.  The government’s interest in the life of the fetus has been reflected and carried out in realms other than abortion.  The courts have mandated medical treatment for non consenting pregnant women many times in the past, in blood transfusions or cesarean sections to benefit the fetus (Sperling 47).

The idea that the government is involved in one’s intimate decisions should not be new; it plays a role in telling you where you can and cannot live, who you can and cannot marry, what you are able to do with your body (or not do with your body) while you’re alive, and yes, to a certain extent it dictates when and how you are able to die.  A pregnant woman should have to undergo life sustaining treatment, at least until the fetus reaches viability.  Her life is over but the life of the fetus is just beginning.  Why would you not postpone death to create life?

DeGrandpre, Charles A. “Recent New Hampshire Supreme Court Decisions”.

Bar Journal. Vol. 26 No. 1.  1984.  <http://www.nhbar.org/uploads/pdf/LexLoci47.pdf>.

Timothy Burch, “Incubator or Individual?: The Legal and Policy Deficiencies of                                                                       Pregnancy Clauses in Living Will and Advance Health Care Directive Statutes”

Rachel Roth.  Making Women Pay: The Hidden Costs of Fetal Rights, Excerpt from Chapter 5

Sperling, Daniel.  Management of Post-Mortem Pregnancy: Legal and Philosophical

“Understanding Pregnancy Week by Week.”  <http://www.pregnancy-period.com/pregnancy-week-by-week.html>.

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.

Timothy Burch, “Incubator or Individual?: The Legal and Policy Deficiencies of Pregnancy Clauses in Living Will and Advance Health Care Directive Statutes”

Rachel Roth, Making Women Pay: The Hidden Costs of Fetal Rights, Excerpt from Chapter 5

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?”

Mara Berdahl
Jaime Olson
Ashley Biermann

Commenters: Jessica J, Karin L, Irma M, Haylie N, Colleen P, Karen W, Martin B

Should the Condition of Pregnancy Override a Woman’s Explicit Instructions in a Living Will?

The purpose of a living will is to allow people to specify in advance what kinds of life-sustaining treatment they would want in the event that they are injured or develop a terminal illness and can no longer make and communicate decisions for themselves. Of the forty-eight states that have living will laws, thirty-five compromise or eliminate pregnant women’s right to die. Sixteen require that life-sustaining procedures be continued if it is either “possible” or “probable” that the fetus could develop to the point of live birth and nineteen invalidate pregnant women’s directives altogether, prohibiting them from having any force or effect “during the course of the pregnancy.”