Living wills (advance directives) help physicians navigate thorny healthcare decisions – particularly with respect to how much care is desired. And delivered.
A “living will” (LST) is a legal document that outlines a person’s preferences for medical treatment in the event they become incapacitated and unable to communicate their wishes, detailing which life-sustaining treatments they want or do not want to receive, such as life support, feeding tubes, or resuscitation, essentially dictating their end-of-life care decisions.
When the patient is pregnant, things can get complicated. I was made aware of this issue during a meeting of the American College of Legal Medicine. Shout out to Claire Horner, JD, MA for an excellent presentation highlighting the complexity.
Nearly thirty states invalidate or restrict end of life decisions for pregnant patients.
The categories of restrictions are:
a. Complete invalidation.
b. Invalid if the fetus can reach viability.
c. Presumptively valid unless withdrawal of care would cause harm.
d. Invalid unless patient has given specific instructions to apply during pregnancy.
“Nine states invalidate a pregnant individual’s advance directive, regardless of whether or not the fetus can survive: Alabama, Indiana, Kansas, Michigan, Missouri, South Carolina, Texas, Utah, and Wisconsin. In these states, an individual who is only a month pregnant and whose fetus has no chance of survival could nevertheless be kept artificially alive against their express wishes for the duration of the pregnancy.”
In another reference, Washington state’s model Natural Death Act includes a form which excludes action during pregnancy. The model directive contains a pregnancy exclusion that invalidates the directive if a person is pregnant. In other words, the model lets any competent Washingtonian make their own decision about end-of-life choices, but not pregnant people. A bill was proposed in 2025, HB 1215, titled: An act relating to removing references to pregnancy from the model directive form under the natural death act. Brief Description: Removing references to pregnancy from the model directive form under the natural death act.” This bill would change the default language in the model template most patient’s download.
Arguments in favor of updating the Washington state bill included:
The long-standing law does not specifically say that advance directives are automatically invalid if someone becomes pregnant, but because the model form does have that provision people continue to believe that they cannot have a valid advance directive if it does not include the pregnancy language. An individual would have to know that they can modify the language of the model form, including the pregnancy provision. This isn’t just a problem of legal terminology and forms because this affects real people’s real lives during some of the most difficult times imaginable, so this bill seeks to make a small but critical change to the model directive form. The bill does not prohibit hospitals or providers from taking actions to save the life of a child if the person dies before the full term of the pregnancy. Idaho was sued over a similar provision. The court found the advance directive law unconstitutional, and Idaho then had to remove the advance directive forms from their existing websites, remove the pregnancy exclusion from the statute, and rewrite the model form.
Arguments against updating the Washington state bill included:
Current law provides a form for health care directives, which includes a provision that a medical directive is without force and effective if a woman is pregnant. This protects and prioritizes the life of the child. This bill removes any reference to pregnancy, effectively providing that the unborn child must die along with the mother, without specifically saying so. This bill is an assault on the life of an unborn baby at all stages of pregnancy. It is also an assault on a pregnant woman who is not notified when signing the directive, or even given an option of continuing her pregnancy and allowing her to bring the pregnancy to term.
And to show this issue is a moving target in the various states:
“In 2021, Colorado passed SB 193, which removed the pregnancy exclusion from its advance directive law.”
States that invalidate the living will with exceptions are as follows.
Many states do not allow life-sustaining measures to be withheld or withdrawn from a pregnant person if the fetus could reach viability or live birth as a result of the life-sustaining measure. Of these 17 states, 5 (denoted by an asterisk) also make an exception for the patient’s well-being, such as if the treatment would be physically harmful to the pregnant person or cause unreasonably severe pain. Mental health concerns do not always count as potential pain in these circumstances.
Alaska
Arkansas
Delaware
Georgia
Illinois
Iowa
Louisiana
Montana
Nebraska
Nevada
Ohio
Rhode Island
Kentucky*
New Hampshire*
North Dakota*
Pennsylvania*
South Dakota*
The rationales for restricting the validity of a living will during pregnancy include the state has an interest in protecting fetal life, the patient may not have made the same decision had they anticipated pregnancy, and balancing the burdens of continued treatment versus potential survival benefit of the fetus.
One major challenge is that most patients are unaware that the legal landscape for their living will may change during pregnancy.
In Idaho, the issue was litigated pre-Dobbs (the Supreme Court decision in June 2022 which overruled Roe versus Wade).
In 2021 after challenging a pregnancy exclusion in Idaho’s living will law, a win resulted from the filing of a 2018 lawsuit on behalf of four women of child-bearing age, Almerico v. Denney, in Idaho Federal District Court. The suit challenged the constitutionality of a provision of Idaho’s living will law that stated if a person has “been diagnosed as pregnant, [their advance directive] shall have no force during the course of [their] pregnancy.” For more than 15 years, Idaho officials interpreted this provision to require pregnant individuals who were incapacitated to be kept on life-sustaining treatment, regardless if the life-sustaining treatment contradicted their advance directive.
In 2021, a federal judge ruled that Idaho’s official’s interpretation of the law’s provision–referred to as the “pregnancy exclusion”–was unconstitutional, violating the four women’s rights to their own medical decision-making and free speech. This ruling was the first of its kind to recognize that pregnancy exclusions are unconstitutional. An appeal of this decision was dismissed in early 2022 after the parties reached a settlement, requiring Idaho state officials to complete a number of corrective measures to ensure that an individual’s pregnancy status would not void their advance directive.
Post-Dobbs, the landscape may be even more confusing. For example, if abortion is outlawed in a state, other than to save the life of a mother, it seems likely that the living will for the pregnant patient would not be given deference. Why? Withdrawing care would cause, indirectly, the death of the fetus, and potentially be treated as an illegal abortion.
Must a doctor comply with a patient’s advance directive?
Medical care providers have a duty to comply with a patient’s living will. However, there are several circumstances in which a provider may refuse to honor the patient’s wishes:
- If the decisions are contrary to the policy of the health care facility
- If the decisions would violate the provider’s health care standards
- If the decisions conflict with the provider’s conscience
There are several state and federal “conscience clause” laws that allow health care professionals to refuse to participate in health services to which they are morally or religiously opposed. In some cases, providers and facilities will only proceed with a treatment under a court order.
Patients who sign an advance directive should review what they want. The landscape has changed and may continue to change. And each state is different.
What do you think?
