Federal Court Rules Idaho’s “Pregnancy Exclusion” For Living Wills Is Unconstitutional

In a victory for pregnant people’s civil rights, a federal court in Boise held that Idaho law cannot require people capable of pregnancy to include language that voids their living wills — also known as advance directives — if they are pregnant. This ruling is a welcome confirmation of pregnant people’s right to direct their own medical care.

“Pregnancy is no justification for stripping people of their fundamental rights,” said Farah Diaz-Tello, Senior Counsel & Legal Director at If/When/How: Lawyering for Reproductive Justice, who represented the plaintiffs alongside Compassion & Choices, Legal Voice, and Perkins Coie, LLP. “Our Constitution protects everyone’s right to make healthcare decisions for themselves. Nobody should have to worry that their end-of-life decisions will be disregarded simply because they are pregnant.”

Diaz-Tello argued the case in a virtual courtroom in February — highlighting the urgency of striking down this discriminatory law during a global pandemic, when pregnant people need to be confident that their end-of-life decisions will be respected. 

“Today, the Court properly affirmed that forced intrusions by the state into people’s bodies, including the bodies of pregnant people regardless of the stage of pregnancy, represent an ‘unprecedented and extraordinary step’ that should be subjected to the highest degree of Constitutional scrutiny,” said Kim Clark, Senior Attorney for Legal Voice. “This ruling offers pregnant people the peace of mind that they should have and deserve when deciding if and when to become pregnant.”  

Four Idaho women challenged the law as a violation of their constitutional rights to medical decision-making and bodily integrity, gender equality, and freedom of speech. Anna Almerico, Chelsea Gaona-Lincoln, Mikaela Loyola-Carkin, and Hannah Sharp are women of childbearing age, two of whom were pregnant when the suit was filed. All completed advance directives that gave specific instructions regarding medical treatment in the event they became incapacitated, including whether they would want the same or alternative treatments if they were pregnant. But because they are of childbearing age, all of their directives could have been deemed void under the State of Idaho’s interpretation of the law.

“Before I became pregnant, I did not understand that I would have different rights than everyone else simply because I was pregnant,” said plaintiff Hannah Sharp. “In the midst of a global health crisis where pregnancy increases the risk of becoming severely ill, it is paramount that whatever happens, my decisions about what treatment I would get, and who I would want to speak for me, are respected. ”

The plaintiffs challenged a provision of Idaho’s Medical Consent and Natural Death Act that stipulated that if a person has “been diagnosed as pregnant, [their advance directive] shall have no force during the course of [their] pregnancy.”

Forcing life support on an unwilling pregnant person “violates the constitutional right of a competent person to refuse unwanted lifesaving medical treatment,” wrote U.S. District Court Judge B. Lynn Winmill in his ruling. The judge noted that the pregnancy exclusion violates both the First Amendment (as compelled speech) and Fourteenth Amendment (due process rights to make health care decisions), emphasizing that “women do not lose these rights because they are pregnant when they fall into a coma.”

While every state has a law allowing for advance directives, Idaho is one of only ten states that restrict the rights of pregnant people to have enforceable advance directives. Today’s ruling could have repercussions for similar laws in Alabama, Indiana, Kansas, Michigan, Missouri, South Carolina, Texas, Utah, and Wisconsin.

If/When/How: Lawyering for Reproductive Justice transforms the law and policy landscape through advocacy, support, and organizing so all people have the power to determine if, when, and how to define, create, and sustain families with dignity and to actualize sexual and reproductive wellbeing on their own terms. We envision a transformation of the legal systems and institutions that perpetuate oppression into structures that realize justice, and a future when all people can self-determine their reproductive lives free from discrimination, coercion, or violence.

Legal Voice is a progressive feminist organization using the power of the law to make positive change for women, girls, and LGBTQ people in the Northwest. Legal Voice uses ground-breaking litigation, legislative advocacy, and community education to fight gender oppression and injustice. More at legalvoice.org