Idaho sued over pregnancy exclusion in advance directive law

BOISE, Idaho (AP) — Four Idaho women are suing the state over a law that makes advance medical directives invalid if a woman is pregnant.

The women, represented by the women’s rights group Legal Voice and the end-of-life patient rights organization Compassion & Choices, filed the lawsuit in U.S. District Court on Thursday. They say the law unfairly discriminates based on gender, violates their right to control the decisions relating to their medical care, and subjects pregnant women to treatment that is different than the treatment provided to all other patients.

“People do not lose their civil rights when they become pregnant. But that’s exactly what is at stake here,” said Sara Ainsworth with Legal Voice in a prepared statement. “Idaho’s discriminatory law purports to take away a pregnant person’s decision-making power, even when they have explicitly detailed the care they wish, or do not wish, to receive.”

Idaho’s law governing advance health care directives, also called living wills, is the Medical Consent and Natural Death Act. It says competent people have a fundamental right to control the decisions on their medical care, including the decision to have life-sustaining procedures withheld or withdrawn.

But the law also says the directive must contain the elements set forth in the sample form that is included in the law. That form includes a “pregnancy exclusion,” which states, “If I have been diagnosed as pregnant, this Directive shall have no force during the course of my pregnancy.”

The women bringing the lawsuit have all written their own advance directives, and all are of child-bearing age. Three of the women have children, and two are currently pregnant. They’ve all either omitted or altered the pregnancy exclusion language in their own advance directives to reflect their actual health care decisions, according to the lawsuit.

Anna Almerico, a 45-year-old Boise resident and mother of three, has an advance directive that says she wants life-sustaining treatment withheld if she is terminally ill and incapacitated. If she is pregnant at the time of the medical crisis, she only wants life-sustaining treatment if her doctor determines the fetus would be able to survive outside her body without intrusive neonatal life-supporting methods or significant long-term damage.

Hannah Sharp is a working student who is pregnant with her second child. Her advance directive says that if she becomes terminally ill and incapacitated while pregnant, she only wants to receive life-sustaining treatment if the fetus is at or beyond the point of viability. In that case, the treatment should continue until the pregnancy ends.

Chelsea Gaona-Lincoln of Caldwell is pregnant with her first child. She’s hoping the pregnancy and birth go smoothly and everyone remains healthy.

“But God forbid, if I get a terminal illness during my pregnancy, I do not want the state interfering in my family’s end-of-life care decisions,” she said in a prepared statement.

Her advance directive says life-sustaining medical procedures should be withheld or withdrawn if she becomes terminally ill and is incapacitated, and she doesn’t want her directive to be nullified if that happens while she is pregnant. She left the pregnancy exclusion language out of her directive, according to the lawsuit.

Micaela Akasha de Loyola-Carkin, a Boise volunteer coordinator with one child, has an advance directive similar to Gaona-Lincoln’s.

The lawsuit names Idaho Secretary of State Lawerence Denney, Idaho Attorney General Lawrence Wasden, Idaho Department of Health and Welfare Director Russell Barron and the state itself as defendants.

Scott Graf, the spokesman for the Idaho Attorney General’s office, said the office doesn’t comment on pending litigation.