Three Kansas women and two physicians are challenging the constitutionality of a nearly 50-year-old state law that nullifies the end-of-life medical treatment decisions for women who are terminally ill and pregnant.
The lawsuit, brought on behalf of three women and two physicians who live in Douglas County, contends that the pregnancy exclusion infringes upon their fundamental right of liberty and personal autonomy under the state constitution.
The lawsuit says the exclusion, which has been in the law since 1979, limits the ability of women to control decisions about their own bodies and their health care decisions.
In a way, the law is a relic but still very relevant with current events, including the case of a 30-year-old nurse in Georgia who was about nine weeks pregnant in February when doctors declared her brain dead after she suffered a medical emergency.
The woman was kept alive for months until her fetus was born, raising legal and ethical questions about medical consent and who should get to make decisions for permanently incapacitated people,
Four years ago, a federal judge in Idaho found that pregnant women were entitled to advance directives, or living wills, for the duration of their pregnancy.
The judge in that case found that the pregnancy exclusion violated the First Amendment, which prevents the government from compelling individuals to express certain views, “just as it prohibits impermissible government censorship of speech.”
The judge also found that it violated the 14th Amendment, specifically the substantive and procedural due process right to make end-of-life medical decisions.
The Kansas lawsuit, filed in Douglas County District Court, says the state statute violates the fundamental rights of privacy, equal treatment, and freedom of speech of the patient plaintiffs by disregarding their end-of-life decisions if they are pregnant.
The lawsuit borrows language from the 2019 Kansas abortion case, which found that the Kansas Constitution protects the fundamental right to personal autonomy.
“Emma Vernon, Abigail Ottaway, and Laura Stratton seek the same fundamental rights that the Kansas Constitution guarantees to all Kansans — the right to control their own bodies, to assert bodily integrity, and to exercise self-determination in making deeply personal medical decisions,” the lawsuit says.
“They further seek the liberty to chart their own futures, the privacy to make intimate decisions free from undue government intrusion, the freedom to express their decisions in legally-recognized directives, the equal protection of the law, and the right to fair process to defend these liberty interests,” the lawsuit says.
Vernon is the only one of the three women who brought the suit who is now pregnant.
She signed a declaration that specified if she is pregnant and diagnosed with a terminal condition, that she would only accept life-sustaining treatment if there is a reasonable medical certainty her fetus will reach full term with a meaningful prospect of sustained life.
The lawsuit focuses on the Kansas’s Natural Death Act that the plaintiffs say denies women the right to make health care decisions if they become incapacitated and terminally ill, and are pregnant.
The 1979 law, described as a statutory variation of a living will, gives adults the fundamental right to control the decisions about their medical care, including the decision to forego life-sustaining procedures if they’re suffering from a terminal disease.
In enacting the law, the Legislature found that adults had the right to make a written declaration instructing their physician to withhold or withdraw life-sustaining procedures if they were terminally sick.
Among other things, the person signing the declaration had to be an adult and it had to be signed in the presence of two or more witnesses who were at least 18 and were not related to the person making the declaration or an heir to the estate.
However, if a terminally ill woman is pregnant, the end-of-life directive is invalidated.
All three women in this case signed the declaration.
Their directives include specific instructions about how much or how little medical intervention they would want if they were mortally ill.
All of them included provisions regarding pregnancy, but their specific treatment decisions vary, reflecting their different expectations about their medical care if they become terminally ill while pregnant.
However, the law contains a clause that invalidates those declarations if they are pregnant regardless if they are terminally sick.
Ottaway signed a directive that specified she would want it followed in its entirety if she is pregnant and diagnosed with a terminal condition.
Ottaway’s directive declines life-sustaining treatment if it would not result in meaningful improvement of her condition, regardless of her pregnancy status.
Stratton executed a directive that specified that in the event she is pregnant and diagnosed with a terminal condition, that life-sustaining treatment be continued if the pregnancy is viable.
The complaint asks the court to permanently prohibit the state “from enforcing the pregnancy exclusion by invalidating otherwise valid health care directives based on pregnancy status…
“The pregnancy exclusion discriminates on the basis of gender by automatically invalidating the health care directives of pregnant people, and calling into question the enforceability of the directives of all Kansans capable of pregnancy,” the lawsuit says.
“It further violates their rights to equal protection by subjecting them to a lesser standard of care than that afforded all other patients, in violation of their fundamental rights to medical-decision making and bodily autonomy.
“The pregnancy exclusion deprives all individuals capable of becoming pregnant of equal protection by offering them less certainty under the law that their end-of-life decisions will be honored.”
The plaintiff doctors – Michele Bennett and Lynley Holman- say in the lawsuit that the law violates their patients’ fundamental rights and exposes them and other providers to civil, criminal and regulatory sanctions.
They say they are at risk of violating the law because the pregnancy exclusion does not tell providers what end-of-life treatment they should administer to their incapacitated, terminally ill, and pregnant patients with suspended advance directives.
The doctors, the lawsuit says, are “deeply committed to the foundational medical principle that patients have a fundamental right to determine what treatment they receive, and that providing treatment without a patient’s informed consent violates both medical ethics and the law.
“Yet Kansas law compels them to disregard their patients’ clearly expressed end-of-life decisions, forcing them to provide their pregnant patients with a lower standard of care than any of their other patients receive.
“It demands this diminished care without offering any clarity on what end-of-life treatment they are required to provide,” the lawsuit said.
The lawsuit was brought on behalf of the plaintiffs by Compassion & Choices, a Colorado-based end-of-life rights organization; If/When/How, a nonprofit national legal advocacy group that supports abortion rights; and the Topeka law firm of Irigonegaray & Revenaugh.
A spokesperson for Kansans for Life said the lawsuit should be worrisome to Kansans.
“Kansans should be concerned that a pro-euthanasia organization has set its sights on our state through this legal activism, putting those living with a disability at serious future risk,” said KFL spokesperson Danielle Underwood.
“There is little doubt they’ve intentionally chosen this nearly 50-year law to push their dangerous, expansive agenda,” Underwood said in an email.
Jess Pezley, senior staff attorney at Compassion & Choices, said the Kansas law is probably only being challenged now after 46 years because many people don’t know about the pregnancy exclusions.
“Most doctors who are providing treatment to pregnant people do not know that these laws exist,” Pezley said in an interview. “However, they face civil, criminal or regulatory sanctions if they don’t do the right thing under the law.”
She added that news stories – like the one out of Georgia – are heightening attention about pregnancy exclusions in the medical directives.
“I think it’s really calling into question: Are these really permissible restrictions on a person’s ability to make end-of-life decisions?”
