You Have a ‘Fundamental Right’ to Make End-of-Life Decisions, Unless You’re Pregnant


Read more of our coverage on Marlise Munoz’s case here.

As lawyers in Texas fought over if, and when, the ventilator would be removed from the corpse of Marlise Munoz over the past few weeks, a New Mexico court released a decision that could bring to a head the fight over the rights of pregnant patients to be free from government-forced end-of-life interventions in the name of saving their fetuses.

The New Mexico case involves Aja Riggs, a Santa Fe woman diagnosed with advanced uterine cancer. Riggs, along with two doctors, challenged the notion that terminally ill patients making informed decisions, such as the removal of a ventilator, does not violate the state’s “assisted suicide” statute when other decisions, such as when to take a dose of lethal medication, does. A New Mexico judge agreed, and ruled that terminally ill patients have the right to “aid in dying” under the New Mexico Constitution, and that such aid is no more “suicide” than the removal of a ventilator or a feeding tube. “This Court cannot envision a right more fundamental, more private or more integral to the liberty, safety and happiness of a New Mexican than the right of a competent, terminally ill patient to choose aid in dying,” the court wrote. “If decisions made in the shadow of one’s imminent death regarding how they and their loved ones will face that death are not fundamental and at the core of these constitutional guarantees, than [sic] what decisions are?”

The ruling was heralded by patients’ rights activists and the American Civil Liberties Union, which filed suit to challenge the law. “New Mexicans, both healthy and sick, now enjoy the comfort and peace of mind that come with knowing they can prevent a prolonged, agonized dying process at the end of life,” said ACLU of New Mexico Legal Director Laura Schauer Ives in a statement. “The court agreed that the New Mexico Constitution guarantees terminally ill patients they do not have to stay trapped in a dying process they find unbearable.”

But the New Mexico court’s decision is more than an embrace of the idea that the U.S. and state constitutions protect the privacy rights of citizens to make their own informed medical decisions, especially those surrounding the end of one’s life. It’s an example of just how far the law has to go in recognizing that idea as it applies to women. That’s because New Mexico is one of 14 states that requires hospitals to use life support measures on a terminally ill pregnant person when it is probable that the fetus will develop to the point of viability outside the uterus. So while the New Mexico court’s opinion is a step in the right direction of recognizing the dignity and rights of individuals to make their own health-care decisions, it leaves open the question of what would happen should a pregnant woman try to exercise those rights.

Sadly, Texas gave us one example. As we witnessed in the Munoz case, brain death, which results in a person being considered legally dead, does not always require a hospital to stop providing medical care to the body. In fact, only New York and New Jersey require hospitals to take into account the religious or moral views in deciding when to terminate treatment in such cases, which means it’s just a matter of time until we see another Munoz case.

That any state can claim the authority to override the competent end-of-life directives of a woman simply because she is pregnant is thanks in large part to the Supreme Court’s decision in Planned Parenthood v. Casey and the creation of a state interest in fetal life. The creation of that state interest paved the way for what lawyers for John Peter Smith Hospital would argue was support for keeping Munoz’s corpse on a ventilator: the state’s 20-week abortion ban and a definition from the Texas Penal Code of an individual that includes every stage of gestation. Furthermore, attorneys for the hospital argued, it’s not just that the state has an interest in fetal life, it’s that it has the prerogative to value, and prefer, that life over the life of the pregnant person. “Given the strong interest of the Texas Legislature in protecting the life of unborn children, it is unlikely the Legislature contemplated only the welfare of the mother” when it passed the law that allows hospitals to override the end-of-life directives of pregnant patients and do whatever they deem necessary, even artificially sustaining a corpse, for the potential of furthering a pregnancy, according to court documents. It is reasonable, the hospital argued, to assume lawmakers passed the law so as to “protect the unborn child against the wishes of a decision maker who would terminate the child’s life along with the mother’s.”

Unlike Texas and 11 other states, New Mexico law will not automatically invalidate a pregnant person’s advance directive without exception, but that should hardly be of any comfort for those hoping to avoid the next Marlise Munoz tragedy in New Mexico or elsewhere. Most importantly, while the Texas court order requiring John Peter Smith Hospital to remove the ventilator from Munoz’s corpse may have brought an end to the immediate tragedy of the state and hospital futilely ignoring and violating her end-of-life wishes, it did nothing to affirm the constitutional rights of a person to be free from government-compelled gestation. For that to happen, the court would have to affirm that a pregnant person’s liberty and privacy in making their end-of-life care decisions outweighs any interest the state has in keeping their body alive to gestate. And for that to happen, the courts, lawmakers, and society writ large would have to believe that a woman does not give up her fundamental rights once she becomes pregnant.

Sadly, there’s nothing to indicate that change will happen any time soon. New Mexico Attorney General Gary King, a Democrat, told the Santa Fe New Mexican he will likely appeal the right-to-die ruling since “the thoughts of the Catholic Church are very influential in New Mexico policy.” And that, right there, shows just how far we have to go before the idea of “fundamental rights” means the same thing for pregnant people as it does for everybody else.

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  • Lynnsey

    I feel better now. I raised essentially this question the other day in the comments of one of the posts on the Munoz case. I’m not a lawyer, but it seemed to me like this has to be a violation of equal protection or something. If the state gives you the right to make medical directives in advance of a situation where you may not be able to voice them UNLESS you’re pregnant in which case they’ll possibly ignore them, how is that NOT discriminatory?

    The state couldn’t take my kidneys without either my prior consent or (in some cases) the permission of my family, but they can potentially use my whole corpse against my wishes or those of my family to gestate a fetus? I guess that shows where the pregnant rank in the grand scheme of things…

    • fiona64

      That’s why I’ve adopted Amanda Marcotte’s explanation that the anti-choice think women are little more than EasyBake Ovens: pregnancy isn’t something that women choose to do, it’s our sole purpose.

      • Ella Warnock

        I’ve come to the same conclusion. It’s just what women DO. Well, except when they don’t. Childfree, married women are like unicorns. Nobody has ever actually seen one. We seeming don’t really exist.

  • colek3

    There is something about this that strikes fear in the hearts of many women; when we become pregnant do we cease to exist? Does our life no longer matter? Are we only as useful as our bodies ability to produce another human? I find it frightening.

    The case in TX did not address a “viable” fetus, her pregnancy was 14 weeks. I am pretty sure that viability occurs at at least 24 weeks but even then it is 50/50. The message is clear: you have a right to certain things, as long as you are not pregnant and/or a woman with a womb that can serve the “greater good”.

    • Renee Goodwin

      I think the exemption in the original supreme court ruling that gave states an “interest” in the fetus was a huge mistake, it basically created a loop hole that the states are using to get around Roe

  • Heathen5701

    I have to say that this is why, if I have a choice, I nor any member of my family will go near a Catholic hospital for treatment. The Bishops believe that they are above the laws of the state and nation, since they will often ignore the patient’s directives in reference of their final wishes. they will continue to keep a patient on life support in spite of them being brain dead if it somehow crosses their illogical religious laws. Of course all this time they are billing the family.

    On a woman it is ten times worse. Life saving chemo treatments are routinely withheld if she is pregnant as well as ignoring pregnancy-related illnesses that will kill the woman. It is better for both the woman and the fetus to die rather than to save the woman.

    Religion should be kept out of medicine, especially if the patient is not of the same religion.

    • Renee Goodwin

      I’m not what you would probably consider religious, but I thought I understood enough about their beliefs to think that they would not go against something that they thought was god’s will, in this case, a fetus going to heaven with the mother, because the fetus was not old enough to be born, yet the reactions from so many people have just shocked me, how could anyone that believes in a god think that trying to gestate life in a corpse is anything but unholy?

  • Renee Goodwin

    Just a heads up and please spread the word, one of the state reps, Matt Krause (R-Fort Worth), wants to make it harder to take a dead woman off of the machines if she was pregnant when she died. From the KENS5 San Antonio Website “Krause has a different viewpoint. He wants to see the law changed to add more protections for an unborn fetus.

    “There was a little child inside Ms. Muñoz,” he said.

    Krause would prefer that the fetus be appointed a guardian to protect its interests if the mother is declared dead.

    “I think you always err on the side of life,” he said.”

    Please share this information otherwise the nightmare could be worse for the next family, with not even the hope of getting a court order to stop a medical facility from keeping a corpse on “life support”

    • Ella Warnock

      He. Is. Insane.

      • Renee Goodwin

        Which pretty much means he fits in well with the rest of the Texas TEA/Gop

    • lady_black

      Can you say “unconstitutional? You think any federal court will buy malarkey like that?

      • Renee Goodwin

        I hope not, but the Supreme Court wouldn’t suspend the Texas law that forces doctors to give a higher dose of the abortion medicine instead of the lower dose that has been proven to be safer

  • Ella Warnock

    Ah, the Dune series. My teenaged obsession.

    • Defamate

      I had problems understanding everything past the second book. Some of those monologues! Plots within plots within plots!

      • Ella Warnock

        I really was obsessed. I took notes to keep it all straight. ;->

        • Defamate

          There was one huge chapter long monologue in book 3 I think, where the worm contradicted himself every few paras. I thougt I was dumb but now I realize that frank Herbert was insane. (Genius).

  • lacourt

    Oh my. We think nothing of our government killing innocent people through the use of drones. These are alive breathing people who don’t want to die. We call that collateral damage.
    But when it comes to letting one human being to sucomb to a natural death we get all outraged.
    Oh yeah, I know she was carring another potentially viable human being. How viable is a fetus growing in a dead woman’s body?
    Women are more than baby making machines, don’t ya think?
    I’m glad the court FINALLY let her go.