Abstract
INTRODUCTION: In 2013, Marlise Muñoz collapsed at her home and was rushed to the hospital, where the doctors informed her family that she had suffered a pulmonary embolism and was now brain-dead. Marlise had previously expressed to her family that she never wished to be kept on life support if she was left brain-dead, so her family wanted to honor her wishes. However, despite her irreversible brain death, because Marlise was fourteen weeks pregnant, Texas law required that her body remain on life-sustaining treatment until her fetus became viable. Her body lay in the hospital hooked up to machines against her wishes for months while her family stood by, powerless to end her suffering. Marlise’s tragic story is, unfortunately, not an anomaly. Pregnancy exclusions are laws that prevent doctors from withdrawing life-sustaining treatment from a pregnant person, even if an advance directive requests otherwise. Across the United States, roughly thirty states have enacted laws commonly known as pregnancy exclusions, which wholly or partially invalidate pregnant people’s advance directives. These laws directly conflict with pregnant people’s fundamental right to refuse medical treatment, a right that is deeply ingrained in U.S. constitutional law. Cases like Cruzan v. Director, Missouri Department of Health held that competent people have the right to refuse medical treatment under the Due Process Clause (“D.P.C.”) of the Fourteenth Amendment. Pregnancy exclusions prioritize the state’s interest in protecting potential life over the rights and wishes of pregnant people, which undermines autonomy. The legal override of pregnant people’s autonomy can cause prolonged suffering for the pregnant person. The extension of suffering also causes deep emotional turmoil for the pregnant person’s family, who are powerless to honor the expressed wishes of their loved ones. Ultimately, pregnancy exclusions strip pregnant people of their bodily autonomy, violating their well-established constitutional right. This Comment argues that pregnancy exclusions in advance directive statutes violate pregnant people’s fundamental right to refuse medical treatment under the D.P.C. of the Fourteenth Amendment. Part II outlines the current pregnancy exclusion in Kansas’s advance directive law, as well as the State’s legislative and judicial history regarding advance directive regulations. Part II also traces the history of the fundamental right to refuse medical treatment and the broader development of fundamental rights. Part III argues that Kansas’s pregnancy exclusion violates pregnant people’s fundamental constitutional right as well as the state constitution and precedent. Part III decisively advocates for recognizing the right to an advance directive as a fundamental right under the framework established in Washington v. Glucksberg. Part IV recommends that Kansas amend its advance directive statute to explicitly include an option allowing people who are capable of becoming pregnant to state their wishes if they become incapacitated while pregnant. Part V concludes by reiterating that the pregnancy exclusion in Kansas’s advance directive statute deprives pregnant people of their fundamental right to refuse medical treatment.