In a post-Dobbs v. Jackson landscape, a growing body of legal scholarship seeks to preserve constitutional protections for reproductive decision-making. Pregnancy exclusions––state law provisions that can operate to invalidate a pregnant person’s end-of-life wishes by nullifying their advance directive––deserve such scrutiny. Previous challenges to and scholarship about pregnancy exclusions have often relied on substantive due process/liberty arguments. In a forthcoming article in the Georgetown Journal of Gender and the Law, SPA Senior Scholar in Residence Jessica Waters and alumna Madelyn Adams (MPA, ‘25) propose an additional equal protection argument to bolster existing arguments against pregnancy exclusions.

These situations are not hypothetical. In February 2025, 30-year-old Georgia resident Adriana Smith, who was nine weeks pregnant, sought medical attention for a series of headaches. The next day she was discovered unresponsive and declared brain dead. Her family was told that the hospital was legally required to continue life-sustaining treatment because of her pregnancy.

Smith was then kept on life support for 16 weeks. The baby was delivered by c-section at approximately 25 weeks gestation, and life support for Smith was ended. While there is no indication that Smith had an advance directive in place, Georgia’s advance directive law––which includes a pregnancy exclusion––may not have honored her autonomous medical decisions in the context of pregnancy.

A History of Advance Directives

Advance directives––legal instruments that allow individuals to document their medical decision preferences in the event of later incapacitation––are a critical tool for safeguarding patient autonomy. While every U.S. state honors advance directives, more than half have laws that may invalidate them solely on the basis of pregnancy. These “pregnancy exclusions” can automatically revoke or suspend previously documented end-of-life decisions if the patient is pregnant, compelling providers to administer life-sustaining treatment for the lone purpose of preserving the pregnancy—that is, using the patient’s body as an incubator.

Advance directives first emerged in the late 1960s and the Florida legislature introduced the first state ‘right to die’ proposal in 1968. The U.S. Supreme Court’s first “right to die” decision came in 1990, holding that “a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment.” Today, about one-third of all U.S. adults have an advance directive in place. The American Medical Association explicitly endorses advance directives, noting “Respect for autonomy and fidelity to the patient are widely acknowledged as core values in the professional ethics of medicine.”

Pregnancy Exclusions in Advance Directives

Pregnancy exclusions, adopted in the 1980s largely as a “concession to the right-to-life lobby and the Catholic Church,” are statutes which “require physicians to void the advance directives of pregnant women receiving life-sustaining treatment.” As Professor Joan Krause found, the state legislative justifications used for pregnancy exclusions rest on two grounds: “first, that a patient who creates a directive when not pregnant might not fully contemplate how their wishes might change in the case of pregnancy; and second, the pronatalist principle that health care decisions during pregnancy should be guided by the goal of saving the life of the fetus, if at all possible.”

Waters and Adams group states’ positions on pregnancy exclusions broadly into four categories: 1) an advance directive (AD) is automatically invalid in the event of pregnancy (nine states); 2) AD is invalid if it is “probable” or “possible” that the pregnancy can result in a live birth and/or the pregnancy is “viable” (17 states); 3) an AD is valid in some situations (eight states); 4) the state code does not mention pregnancy (16 states plus D.C.).

Existing Constitutional Arguments Against Pregnancy Exclusions

To date, most legal scholarship and case law examining pregnancy exclusions rely on privacy and medical autonomy arguments grounded in 14^th Amendment (or state equivalent) substantive due process protections. The most significant legal challenge to a pregnancy exclusion came in 2021 in a federal district court case, Almerico v. Denney. That court found that invalidating a pregnant woman’s advance directive amounted to constitutionally impermissible “forced” life support, and relied on a 14^th Amendment substantive due process “liberty” analysis and medical autonomy substantive due process cases. The Almerico court squarely held, “Women do not lose [medical decision-making] rights because they are pregnant when they fall into a coma.”

The Dobbs v Jackson Decision

While the Almerico holding remains, to date, undisturbed, the subsequent Supreme Court decision in Dobbs v. Jackson (2022) may change the playing field.

Dobbs concerned the constitutionality of a 2018 Mississippi 15-week abortion ban; in a 6-3 decision, the Supreme Court took the opportunity to not only uphold the ban but also to overturn Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The Court explicitly rejected any 14^th Amendment substantive due process protections for abortion access. The Court’s decision allows states to regulate or ban abortion for any “legitimate” reason, explicitly including a state’s desire to demonstrate “respect for and preservation of prenatal life at all stages of development.” The decision paved the way for a flood of new abortion regulations nationwide, resulting in a patchwork of state laws: 12 states now completely ban abortion care, four ban abortion at six weeks, and others restrict abortion care in a myriad of ways. Some states have also chosen to protect access to abortion care.

The Dobbs Court explicitly held that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”  If we take the Court at its word, Almerico’s solid substantive due process analysis should stand with regard to pregnancy exclusions. That said, the reality is that any substantive due process analysis protecting medical decision-making during pregnancy may be in danger following Dobbs. As the Dobbs dissent warns, it is “impossible to understand (as a matter of logic and principle) how the majority can say that its opinion today does not threaten…any number of other constitutional rights,” such as same-sex intimacy and marriage, interracial marriage, contraceptive use, and protection from forced sterilization.

Post-Dobbs Realities

After Dobbs, confusion reigns as doctors and patients try to navigate a labyrinth of state laws. A January 2024 study of 54 obstetrics and gynecology practitioners (OB-GYNs) across 13 states found that, following the Dobbs decision, OB-GYNs delayed providing clinical care to pregnant patients––even in emergency situations––for fear of liability under newly ambiguous state laws, via potential “criminal prosecution, loss of medical license, loss of income, and/or incarceration.”

End of life care for pregnant people will likely be one of these “legal gray areas.”

First, pregnancy exclusion statutes vary tremendously in format and content across states. Even U.S adults who have an advance directive are likely not steeped in the legal complexities of their state laws, and very few are aware that their state laws contain pregnancy exclusions.

Second, state advance directive laws suffer from many of the same infirmities as current abortion restrictions: ill-defined terms that are not grounded in medicine or science. While some state statutes bar execution of a pregnant person’s advance directive at any point in pregnancy, others condition execution of a pregnant patient’s end of life wishes on a doctor’s determination of whether a fetus is “viable” or––even more ambiguously––whether it is “likely” or “probable” that the fetus will progress to a live birth. The danger for inconsistent interpretation and application by both medical providers and the legal system is high.

Third, there is another emerging layer of complexity: medical professionals (and their lawyers) facing questions of whether states’ abortion regulations and/or fetal personhood measures must be squared with regulations governing advance directives during pregnancy. As states rapidly shift their abortion regulations in the wake of Dobbs, one can imagine several scenarios: a state may ban abortion (completely or after a certain point in pregnancy), but not explicitly restrict (or may even protect) end of life decisions for a pregnant person; a state may protect access to abortion care but have codified advance directive pregnancy exclusions; or a state abortion law may restrict access to abortion care at a point in pregnancy (e.g., 6 weeks) that differs from, for example, the viability standards found in some pregnancy exclusions.

This complexity has already heartbreakingly played out in Adriana Smith’s case. While her family was initially told that Georgia’s abortion ban required that the hospital continue life support in order to preserve fetal life, Georgia Attorney General Chris Carr subsequently issued a statement that the abortion statute did not apply to Smith’s case. He stated, “There is nothing in the LIFE Act that requires medical professionals to keep a woman on life support after brain death…Removing life support is not an action ‘with the purpose to terminate a pregnancy.’”

Waters and Adams argue that abortion statutes should not impact end-of-life care statutes regardless of whether the patient is pregnant, because the decision to cease end-of-life care, in accordance with a patient’s wishes, is not synonymous with abortion. Almerico v. Denney decisively noted the difference. In striking down an Idaho pregnancy exclusion in 2021, the district court noted that the question of the constitutionality of pregnancy exclusions is

That said, two things are clear. First, it is a certainty that proponents of fetal personhood measures and abortion bans will bring legal actions arguing that state abortion bans and/or fetal protection laws trump end of life directives if the patient is pregnant. Doctors will undoubtedly face the political and legal pressures evident in Smith’s case. Second, Almerico was a pre-Dobbs case. Post-Dobbs, there are serious questions about the continued validity of any of the Court’s substantive due process cases.

Dismantling the Justifications for Pregnancy Exclusions

Given the threats to substantive due process-based medical autonomy protections, Waters and Adams argue it is necessary to explore additional ways to buttress the liberty-based arguments against pregnancy exclusions. One avenue, drawing heavily on Reva Siegel, Serena Mayeri, and Melissa Murray’s article “Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context,” may be a 14^th Amendment Equal Protection argument. Under a 14^th Amendment analysis, laws that discriminate on the basis of sex are subject to a “heightened scrutiny” by the courts. Under this “intermediate scrutiny” standard, used in a Supreme Court case called U.S. v Virginia, the state must demonstrate an “exceedingly persuasive" justification for the gender-based distinction, showing that the law––and the discriminatory means used––serve important governmental objectives. If such laws rely on “overbroad generalizations about the different talents, capacities, or preferences of males and females,” the laws cannot stand.

Applying the Siegel, Mayeri, and Murray equal protection framework to states’ justifications for pregnancy exclusions reveals that they are impermissibly rooted in sex role stereotypes.

Justification 1: Protecting a Woman’s Medical Decision-Making Ability

The argument that pregnancy exclusions serve to protect women’s medical decision making––on the assumption that she may have made a different decision about end-of-life care while pregnant––falls flat. First, the woman may well have executed the advance directive while pregnant, or with the knowledge that she may someday be pregnant. Second, even if a woman had not contemplated pregnancy, the assumption that she would willingly turn her body into an incubator smacks of assumptions about women’s “duty” as mothers. To abrogate a woman’s otherwise legally binding end of life wishes––because of assumptions about her role as the vessel for a pregnancy––relies on the very type of gendered stereotypes that Virginia demands we interrogate.

Additionally, under heightened scrutiny, courts must examine the means employed to meet the government’s asserted goals. Here, if the state invalidates a woman’s advance directive to forgo life sustaining care, doctors may be compelled to undertake extreme and dehumanizing medical interventions on a woman’s “inert, unresponsive, unstable and legally lifeless body.” These could include, but are not limited to, “full ventilation, nutritional support and fluid administration, maintenance of normothermia, and the administration of hormone therapy, vasoactive and other drugs.” The effects on the pregnant body are profound. A “[brain dead] body still degenerates,” and complications during life-sustaining care can include hemorrhage, hypotension, abnormal thermoregulation, panhypopituitaris, hypercoagulation issues, edema, anemia, sinus bradycardia often, lung collapse, infectious morbidity including urinary tract infections, pneumonia, drain, catheter and cannula infections.

Justification 2: Preserving Fetal “Life”

But is the state’s protection of fetal life justification even clinically supportable? It is unclear whether pregnancy exclusions actually operate to meet the stated goal of preserving fetal life. A 2010 study examined 30 reported cases of maternal brain death, and found 12 that had progressed to live birth; importantly, in most of those cases the fetus was beyond 20 weeks of gestation at the time of maternal brain death. A 2017 study noted the complexities of providing this care and the dramatic negative consequences for fetal health, particularly early in pregnancy. That same study noted the gaps in medical knowledge about the impacts on a fetus gestating in a brain dead woman.” A 2021 study of 35 cases of brain death in pregnancy noted the importance of fetal gestational age at the time of maternal brain death; just 54.5% of fetuses survived when maternal brain death occurred between 14- and 19-weeks’ gestation.

There are certainly cases where continuing life sustaining care could be in accordance with the patient’s wishes and could also result in a live birth. But a doctor making that determination––particularly when the patient has made plain different wishes––requires answers to highly individualized and patient specific medical questions. A state-imposed one-size-fits-all dictate does not allow for that medical expertise and decision-making.

Conclusion

Pregnancy exclusions operate during times of incredible trauma for families of incapacitated patients, as survivors grapple with their own grief while making decisions on life-sustaining care with physicians and (likely) hospital general counsel. As Adriana’s Smith’s mother stated, “It’s torture for me…I see my daughter breathing by the ventilator, but she’s not there…This decision should’ve been left to us….”

Pregnancy exclusions are, by definition, implements of forced motherhood imposed only on one sex. They nullify a woman’s previously expressed medical wishes, otherwise legally binding, and potentially subject her to monumental physical medical intrusions. Examined even nominally, the government objectives of patient autonomy and fetal protection are revealed as ill met by an overly broad government dictate steeped in assumptions and stereotypes about a woman’s role as mother. An equal protection analysis allows for a true examination of the purpose and effects of pregnancy exclusions.
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