State Pregnancy Exclusions are Bad Law

This guest post is part of The Bioethics Program’s Online Symposium on the Munoz and McMath cases. To see all symposium contributions, in reverse chronological order, click here.

by Katherine Taylor, J.D., Ph.D.
College of Nursing and Health Professions, Drexel University

The Munoz case brought public attention to the Texas “pregnancy exclusion” law included in its Advance Directives Act, which says that life-sustaining treatment may not be withheld or withdrawn from a pregnant patient. Thankfully the state judge held that this law did not apply to Ms. Munoz because she was dead, and the hospital acceded to his order that Ms. Munoz’s body be released to her husband and put to rest.

These pregnancy exclusion laws exist not just in the “red” state of Texas, but in thirty-one states across the nation. I first wrote about these laws in a 1997 law journal article but the legal landscape remains essentially unchanged almost two decades later. Rather than using space summarizing these laws, I want to briefly sketch out some reasons why the exclusions are a very bad idea. The Munoz tragedy helps me illustrate my points.

What are the interests at stake in these cases? Ms. Munoz was dead, so some argue that she had minimal interests to be weighed against that of the state in the nonviable fetus (except there has been neglect of her, or society’s, interest in having her body respectfully treated rather than being used for experimental fetal gestation against her wishes and those of her family).  But other interests also have weight.

Ms. Munoz had an important interest in controlling in advance whether to refuse life-sustaining treatment. It is this interest that advance directive statutes convert into a legal right to execute a living will and appoint a health care proxy. Yet that right is given by these statutes with one hand and taken away by the other –the Texas pregnancy exclusion conferred on Marlise Munoz a lesser right than others to refuse life sustaining treatment in advance (as she orally did), because her right was made conditional on whether she was pregnant when the treatment would be removed.  The fact that she was only 14 weeks pregnant did not matter in Texas, and would not matter in most states that have enacted pregnancy exclusions. The question becomes whether women’s interest in prospectively making their end of life wishes known outweighs the state’s interests in a nonviable fetus. I believe it does.

Erick Munoz also had critical interests at stake. Surely Mr. Munoz had an interest in whether his wife’s body should be used to gestate the fetus, one that was not developing normally. Whether the child was healthy or not, Mr. Munoz would be the parent responsible for raising it. The Supreme Court made clear in Casey and other cases that persons have a liberty interest in controlling their procreation. Men’s procreative interest is rightly subordinated to a pregnant woman’s because of her bodily integrity. But when the woman is going to die, or is dead, the husband’s interest in avoiding reproduction should also come into play. The arguably experimental nature of the use of Ms. Munoz’s body also should require his permission. And again, family members should expect to be able to respectfully lay to rest the bodies of their loved ones. These interests, of Marlise and Erick Munoz, should outweigh the state’s interest in forcibly using a pregnant woman’s body to host a fetus that is not separate from its mother.

Yet that (more traditional) analysis is still incomplete because it is far too narrow. If we train a broader lens on the pregnancy exclusions, as we should, it becomes clear that the exclusions are part of a larger “pro-life” trend to treat fetuses as separate persons and patients. Nationwide, this trend translates into scary and grossly unjust scenarios where women lose their bodily integrity, autonomy, and inviolate legal personhood. Once the state sees the fetus as a separate person, it goes on to justify degrading pregnant women’s own legal status in numerous contexts of which we are all aware, from forcing pregnant women to undergo cesareans, criminally punishing them for causing the death of the fetus, to putting them in jail for having used drugs in their pregnancy. States have furthered that agenda by interfering with the ability of physicians to give good care to their patients according to accepted medical standards, and clearly the pregnancy exclusions do the same. When we do not explicitly recognize this larger context of women’s subordination, we ignore the injustice to all women that the pregnancy exclusions pose. Indeed, as I argue in my article, the pregnancy exclusions should constitute a violation of women’s equal protection rights.

Women’s extreme self-sacrifice, their role as the “moral proletariat” as Annette Baer described, is too often taken for granted. I end with summary thoughts from my article:

[The] pregnancy restrictions … accord women only conditional liberties, based on the social stereotype that women’s role as mothers appropriately requires of them extreme self-sacrifice for their offspring.  However, no matter how entrenched . . .  [that] stereotype may be . . . the state must protect against the legal imposition of that role, lest women become second-class citizens under law. Though women, like men, usually shoulder a complex set of relational identities, such as parent, child, sibling, and friend, it is of utmost importance that in the eyes of the state, women, like men, should be first and foremost independent persons with vital liberties deserving of vigilant protection.  Just as women’s moral agency should not be degraded because of their relational ties, so also their political agency should not be secondary to the uses to which they may be put for others.

Marlise Munoz’s body should not have been callously and forcibly used by the state as a means for fetal ends, and nor should any other pregnant woman’s body, whether she is dead or alive.

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