Idaho will have to let pregnant people direct their own end-of-life care after all.
In a year where conservative lawmakers are pushing hundreds of restrictive new laws, reproductive health advocates scored a rare victory in Idaho when a federal court threw out a law that stripped pregnant people of the right to make their own decisions about end-of-life care.
Like every other state, Idaho has an advance directive law, where people can provide information about what type of health care they want if they become incapacitated. Having the autonomy to make end-of-life care decisions is important, and the Idaho Legislature acknowledged that, saying that people have a right to expect "dignity and privacy" in those choices and the laws of the state "shall recognize the right of a competent person to have his or her wishes for medical treatment and for the withdrawal of artificial life-sustaining procedures carried out even though that person is no longer able to communicate with the health care provider."
Everyone except pregnant people that is.
Idaho's law provided a form to use to express health care and end-of-life wishes. But the form also contained a provision that only applied to pregnant people: "If I have been diagnosed as pregnant, this Directive shall have no force during the course of my pregnancy." In case there was any doubt as to what that might mean, the state maintained a website with an FAQ that addressed this: "Q: What if I am pregnant when I become incapacitated? A: Life-sustaining measures will continue regardless of any directive to the contrary until the pregnancy is complete."
Four women of childbearing age sued the state over the law. Each of them created an advance directive but refused to include the pregnancy exclusion language in their documents. Instead, their directives contained information about what type of life-saving treatment they wanted regardless of their pregnancy status or the viability of the pregnancy. After the lawsuit was filed, the state tried to walk back their stance a bit, removing the FAQ, but the form with the pregnancy exclusion provision was still on the secretary of state's website.
While it might seem unlikely that a doctor would refuse to accept a directive and instead keep someone who is comatose alive against their will until a pregnancy becomes viable and can be delivered, it's already happened.
In Texas in 2014, Marlise Munoz was declared brain-dead after collapsing due to a blood clot in her lungs. She had previously expressed a wish not to be left on life support, but she was 14 weeks pregnant, and Texas has a law similar to that of Idaho, so the hospital refused to honor that wish. She was forced to remain connected to life-support machines for two more months until a court ordered the hospital to respect her wishes and terminate life support.
The federal court in Idaho found that state's provision unconstitutional on two bases.
First, there's a due process concern. Over 30 years ago, in Cruzan v. Director, Missouri Department of Health, the Supreme Court held that the due process clause of the Fourteenth Amendment "protects an interest in life as well as an interest in refusing life-sustaining medical treatment." Idaho's law, though, wholly denied pregnant women the right to refuse. Because of that, the Idaho court found the Idaho pregnancy exclusion unconstitutional, noting that "[w]omen do not lose these rights because they are pregnant when they fall into a coma."
There's also a free speech issue. The law required that women include in their advance directive language to which they did not agree: "If I have been diagnosed as pregnant, this Directive shall have no force during the course of my pregnancy." That's a First Amendment violation because it compels speech. People generally can't be required to express something they don't want to or engage in speech or conduct that makes it seem like they agree with something they oppose.
While the Idaho ruling is unreservedly a victory for reproductive health rights, the Supreme Court has a complicated relationship with the doctrine of compelled speech.
When it comes to anything except reproductive issues, conservatives loathe the idea that people might have to be remotely adjacent to speech with which they disagree. For example, when it comes to public-sector unions, the U.S. Supreme Court held that paying dues to a union to negotiate fairer working conditions — even if your dues could not be used for political activities by the union — was "compelled speech" and therefore unconstitutional.
In contrast, that same court has also ruled that sham "crisis pregnancy centers" in California couldn't be required to post a notice that free or low-cost reproductive health services, including abortions, were available and provided by the state. To do so would require them to convey a message with which they did not agree.
It's that stance that makes the Idaho victory feel less solid than it might otherwise — an appeal that made its way to the Supreme Court might turn out the opposite. There's no indication the state is planning an appeal, and they've removed the form with the pregnancy exclusion language. On the other hand, the state still hasn't admitted the exclusion is wrong, which is a possible sign the case could continue. For now, though, when it comes to their right to decide about end-of-life care, pregnant women aren't second-class citizens in Idaho.