Decisions in the Dark: Why “Pregnancy Exclusion” Statutes Are Unconstitutional and Unethical

Shea Flanagan | January 1, 2020

Advance health care directives are tools that allow people to state their health care treatment wishes or designate a health care proxy in anticipation of being unable to make those decisions in the future, including preferences to remove life-sustaining medical treatment. However, thirty-six states currently have “pregnancy exclusion” laws that require physicians to void the advance directives of pregnant women receiving life-sustaining treatment. This Note assesses the constitutionality and ethics of state pregnancy exclusion statutes by employing a new five-category typology of current pregnancy exclusion laws. This Note argues that all categories of these statutes violate an individual’s constitutional rights to terminate a pregnancy and to refuse lifesaving medical treatment, and also contends that pregnancy exclusion laws as they currently exist violate basic bioethical principles by restricting the autonomy of patients. To conclude, this Note provides a potential reform to pregnancy exclusion laws that passes constitutional muster and meets today’s ethical standards.