Article on the Pregnancy Exemption Clause of The Kentucky Living Will Directive Act
Jane was a forty-year-old drug addict from rural Kentucky. She had two children under the age of ten and one son, John, who was twenty. Jane had suffered severe brain trauma and was declared to be in persistent vegetative state by the time she was transferred from her regional hospital to the University of Kentucky Chandler Medical Center. John knew his mother would not have wanted to live like this, and after applying substituted judgment, requested that life-sustaining treatment be withdrawn. There was only one problem. Jane was six weeks pregnant, and under Kentucky law, even if Jane had expressly written out what her wishes were, once she had come to lack decisional capacity, such a directive is deemed ineffective in the instance of a pregnant woman. As a result, Jane was kept alive for thirty-six weeks so that the fetus could be brought to term.
Beginning with the landmark New Jersey Supreme Court case, In re Quinlan, state courts have generally held that incompetent individuals may, through substituted judgment, decline unwanted medical treatment. These state court decisions culminated in the 1990 Supreme Court decision, Cruzan v. Director, Missouri Department of Health, wherein the Court, in a 5-4 decision, held it was permissible for a state trial court to require clear and convincing evidence of a patient’s wishes before life-sustaining treatment could be withdrawn from an incompetent person.
Post-Quinlan, as state courts began recognizing the right of an incompetent to withdraw life-sustaining treatment through their surrogates, and even more so after the Supreme Court’s decision in Cruzan, state legislatures began enacting living will or advance directive acts which allow individuals to spell out exactly what their wishes are if they are ever to be found in an incompetent state. Currently, all fifty states and the District of Columbia have enacted living will or advance directive acts in some form. Of these fifty-one jurisdictions, only fifteen are silent as to the effectiveness of such provisions if a patient is found to be pregnant. Twelve states completely stay the effectiveness of a living will or directive in the instance of a pregnant woman, twelve stay the living will or directive if a fetus is viable or live birth would be possible with continued life-sustaining treatment, and five do so unless life-sustaining treatment would not have the effect of allowing the fetus to continue to live birth, such treatment would be physically harmful to the woman, or such action would prolong severe pain which cannot be alleviated with medication. Five of the remaining seven jurisdictions leave the determination as to the effectiveness of a directive in a pregnancy scenario completely to the discretion of the female patient, while the last two jurisdictions impose a rebuttable presumption that a female patient would not want life-sustaining treatment withdrawn were she found to be pregnant.
The history of living wills in Kentucky began with the Kentucky Court of Appeal’s determination that it is permissible for substituted judgment to be used to make decisions for incompetent persons. In Strunk v. Strunk, the court was asked to determine whether a kidney could be removed from an incompetent, 28 year-old ward of the state for the benefit of his brother. The court noted that “[t]he right to act for the incompetent in all cases has become recognized in this country as the doctrine of substituted judgment and is broad enough not only to cover property but also to cover all matters touching on the well-being of the ward.” Kentucky subsequently enacted its first Living Will Directive Act in 1990, and in 1993, the Supreme Court of Kentucky analyzed the effect of the Act, holding in DeGrella v. Elston that life-sustaining medical treatment could be withdrawn from a patient in a persistent vegetative state in light of the patient’s prior statements that she would not have wanted to be kept alive by artificial means. In 1994, a new Living Will Directive Act replaced the 1990 Act. This Act allows an individual to designate a surrogate to make healthcare decisions on the individual’s behalf, provides that the individual may give directions for the withholding or withdrawing of life-prolonging treatment, including artificially provided nutrition or hydration, and provides a model form for writing out these directions. The pregnancy exemption provision can be found in the model form and states, “[i]f I have been diagnosed as pregnant and that diagnosis is known to my attending physician, this directive shall have no force or effect during the course of my pregnancy.” Although no litigation has been directed at the pregnancy exemption clause itself, in 2004 the Supreme Court of Kentucky, in Woods v. Commonwealth, upheld the Kentucky Living Will Directive Act.
The goal of this note is to argue the constitutional infirmity of the pregnancy exemption clause in the Kentucky Living Will Directive Act and similar legislation enacted in other states staying the effect of advance directives in the instance of a pregnant woman. Part I of the note looks at the constitutionality of pregnancy exemptions from the standpoint of the right to refuse unwanted life-sustaining medical treatment under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution. Part II analyzes the constitutionality of such provisions from the perspective of a pregnant woman’s reproductive rights, arguing that pregnancy exemptions effectively violate these rights as established by Roe v. Wade and its progeny.