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Compassion & Choices, If/When/How: Lawyering for Reproductive Justice, and Irigonegaray & Revenaugh have filed a state lawsuit on behalf of three Kansas women and two Kansas physicians. The lawsuit, Vernon v. Kobach,  challenges the constitutionality of a Kansas law that invalidates a person’s end-of-life treatment decisions in their living will if they are pregnant.

Kansas’s Natural Death Act recognizes that, “adult persons have the fundamental right to control the decisions relating to the rendering of their own medical care, including the decision to have life-sustaining procedures withheld or withdrawn in instances of a terminal condition.”

Kansas law denies this fundamental right to pregnant people, automatically invalidating their living wills through the Pregnancy Exclusion.

Plaintiffs include three individuals capable of becoming pregnant – each of whom either have children, are pregnant, or want children in the future – and two Kansas OB-GYNs who regularly provide care to pregnant and pregnancy-capable patients. While all of Patient-Plaintiffs’ living wills include provisions regarding pregnancy, their specific treatment decisions vary, reflecting their different expectations about their medical care if they become terminally ill while pregnant. They all want their health care decisions followed if they become incapacitated and terminally ill, regardless of their pregnancy status. Physician-Plaintiffs bring this case alongside Patient-Plaintiffs because they want to ensure that their patients’ end-of-life decisions are respected and that they do not face legal or professional consequences for providing treatment without clear guidance or informed consent.

Patient-Plaintiffs argue this law violates their fundamental rights of personal autonomy, privacy, equal treatment, and freedom of speech by categorically disregarding their clearly expressed end-of-life decisions if they are pregnant. Patient-Plaintiffs ask the court to affirm that the protections afforded under the Kansas Constitution apply equally to them and ensure that their most personal end-of-life decisions will be respected, regardless of their pregnancy status.

“Because I’m currently pregnant, I don’t get the peace of mind a living will is meant to provide,” stated Emma Vernon of Lawrence, Kansas, who is pregnant with their first child. 

She continued, “I shouldn’t have to fear that my pregnancy could cost me my dignity and autonomy. I have already outlined the medical care I want if I am facing the end of my life, but my living will is not effective just because I’m pregnant. If something were to happen to me during this pregnancy I would have no control over the end-of-life care I receive. I am no less capable of planning my medical care simply because I am pregnant. I know what is best for me.” 

Dr. Michele Bennett and Dr. Lynley Holman are both OB-GYNs based in Lawrence, Kansas. They  argue that this law violates their patients’ fundamental rights and exposes them and other providers to civil, criminal, and regulatory sanctions because the Pregnancy Exclusion does not tell providers what end-of-life treatment they should administer to their incapacitated, terminally-ill, and pregnant patients with suspended advance directives.

“As a physician, I am deeply committed to honoring my patients’ autonomy and safeguarding their privacy. When a law compels me to act against my patients’ clearly expressed decisions, it not only undermines the trust at the heart of the patient-provider relationship, but also threatens the ethical foundation of medical care,” said Dr. Holman of Lawrence, Kansas. “Every individual deserves the dignity of making their own health care decisions without unwanted intrusion—and no provider should face legal or professional consequences for honoring that dignity.”

The other two plaintiffs, Abigail Ottaway and Laura Stratton, both of Lawrence, Kansas, have also taken great care to document their end-of-life wishes. Ms. Ottaway hopes to have children in the future, while Ms. Stratton is already a parent to two. Both have thoughtfully detailed the medical care they would want if they were terminally ill and pregnant—decisions that would have no effect under current law, despite the painstaking care they took to document them.

The complaint asks the court to permanently prohibit Defendants “from enforcing the Pregnancy Exclusion by invalidating otherwise valid health care directives based on pregnancy status or bringing any adverse action against a provider for following the directions in a pregnant, incapacitated individual’s validly executed [living will].”

“Our plaintiffs are simply asking for the same fundamental rights the Kansas Constitution guarantees to all Kansans,” stated Jess Pezley, senior staff attorney at Compassion & Choices. “Categorically stripping individuals of their right to make deeply personal end-of-life decisions because they are pregnant is not only offensive, it’s fundamentally at odds with the values enshrined in the Kansas Constitution.”

“Across the country, people are shocked and horrified to learn that their end-of-life directives might be invalidated because they are pregnant,” said Farah Diaz-Tello, Senior Counsel and Legal Director at If/When/How. “Everyone deserves to be able to make decisions about their body and their life; pregnancy is no excuse to deny someone’s fundamental rights.”

“I have lived in Kansas for almost 65 years; I have spent decades defending the constitutional rights of its people. Kansans greatly value their individual rights and personal freedom,” stated Pedro Irigonegaray, Partner at Irigonegaray & Revenaugh. “The Pregnancy Exclusion betrays those values by denying pregnant people the right to control their own medical decisions.”

The issue of Pregnancy Exclusions in advance directive laws gained national attention in 2013 with the tragic case of Marlise Muñoz — a Texas woman who was approximately 14 weeks pregnant when she was declared brain dead. Even after her death the hospital refused to cease medical interventions, citing Texas’s Advance Directive Act, which – like Kansas’s law – invalidates a pregnant individual’s refusal of life support. A court ultimately ordered the hospital to disconnect the machines from her body, but only after Ms. Muñoz’s family endured months of trauma from the prolonged and unwanted treatment and the loss of Ms. Muñoz’s baby.

While the facts of that case were unique, it stands as a stark and extreme example of how Pregnancy Exclusions can be used to override the decisions of individuals and their families, even after they have died, stripping them of the right to make deeply personal end-of-life decisions.

More than 30 states have advance directive laws containing a Pregnancy Exclusion.