By Compassion & Choices and If/When/How
Today, Michigan women, physicians, and patient advocates have joined together to file a lawsuit challenging a Michigan law that denies pregnant people the ability to make important decisions about their end-of-life care. The lawsuit, filed by Compassion Legal: The End-of-Life Justice Center at Compassion & Choices; If/When/How: Lawyering for Reproductive Justice; Perkins Coie LLP; and Mogill & Lemanski, PLLC, argues that the state’s Pregnancy Exclusion violates the plaintiffs’ constitutional rights, including their right to make reproductive and end-of-life decisions.
Koskenoja v. Whitmer challenges the constitutionality of a Michigan law that denies pregnant people who are incapacitated the right to refuse life sustaining treatment. Because Michigan has no living will statute, most individuals rely on their chosen patient advocate to make medical decisions on their behalf if they are incapacitated. Michigan’s Pregnancy Exclusion forbids patient advocates from refusing life-sustaining treatment for pregnant people, stating: “patient advocate designation cannot be used to make a medical treatment decision to withhold or withdraw treatment from a patient who is pregnant that would result in the pregnant patient’s death.”
Michigan’s Constitution recognizes the right to make deeply personal medical decisions, including during pregnancy and at the end of life. In 2022, Michiganders voted to amend the state constitution to include explicit protections for “the right to make and effectuate decisions about all matters relating to pregnancy. ” Michigan’s Pregnancy Exclusion denies these fundamental rights to pregnant people. The plaintiffs ask the court to affirm that the Michigan Constitution applies equally to them and ensures an individual’s most personal reproductive and end-of-life decisions are respected without discrimination.
“Our plaintiffs are simply asking for the same rights the Michigan Constitution guarantees all Michiganders,” said Jess Pezley, senior staff attorney at Compassion Legal. “Denying individuals the right to refuse treatment because they are pregnant is fundamentally at odds with the Michigan Constitution.”
The patient plaintiffs include four women who have made advance directives appointing patient advocates, which detail the treatment they would consent to or refuse if they were incapacitated, including during pregnancy:
- Dr. Viktoria Koskenoja of Skandia, Michigan;
- Jamie Aird of Rochester, Michigan;
- Nicole Sapiro Vinckier of Birmingham, Michigan; and
- Madalyn Knutson of Traverse City, Michigan.
“This policy is a reminder that even in Michigan—a state that voted to protect reproductive freedom—pregnant people are still treated as exceptions, not equals,” said patient plaintiff Nikki Sapiro Vinckier. “As a woman and a mother, it’s infuriating to know that my body can still be regulated more than it’s respected. As a trained OB-GYN Physician Assistant, I know this law protects no one—it only punishes those who can get pregnant. The pregnancy exclusion clause isn’t about safety or care. It’s about control. There is no place for a law that discriminates against pregnant people in a state that claims to trust women.”
Plaintiff Dr. Koskenoja is an Emergency Medicine Physician in Skandia, Michigan. In 2020 she made her own advance directive that designates her husband, plaintiff Sam Holcomb, as her patient advocate. Together they have two children, aged four and five. Dr. Koskenoja’s decision to execute an advance directive was influenced by her experience witnessing her mother’s slow, painful death—an experience she has no desire for her young children to endure.
“I drafted my advance directive after giving birth to my first child because, as a physician, I have seen firsthand how life can change in an instant,” said patient and physician plaintiff Dr. Koskenoja. “I was originally told by my lawyer that I could not include pregnancy-related instructions in my advance directive because of Michigan law. But I made the decision to include them anyway because I felt so strongly that my ability to control my own medical care shouldn’t depend on my pregnancy status.”
In addition to Dr. Koskenoja, there are three other physician plaintiffs who regularly provide end-of-life treatment or treat pregnant individuals:
- Dr. Laura Lozier, a Trauma Surgeon in Marquette, Michigan;
- Dr. Jerome (Jay) Winegarden, an Oncologist and Hematologist in Ann Arbor, Michigan; and
- Dr. Lisa Harris, an Obstetrician and Gynecologist, specializing in emergency obstetric services in Ann Arbor, Michigan.
“As physicians, we have a responsibility to honor our patients’ medical decisions and respect their right to informed consent,” said physician plaintiff Dr. Winegarden. “That responsibility does not change when our patients become pregnant.”
In addition to Sam Holcomb, plaintiff Mark Vinckier is the designated patient advocate for his wife, plaintiff Nikki Sapiro Vinckier. Both patient advocate plaintiffs have accepted the profound responsibility of carrying out their loved ones’ medical decisions if they become incapacitated. Michigan’s Pregnancy Exclusion denies them the ability to honor those decisions.
Under Michigan law, patient advocates must accept the Pregnancy Exclusion when accepting their designation. Mr. Holcomb refused to consent to the Pregnancy Exclusion when named as Dr. Koskenoja’s patient advocate, because he fundamentally disagrees with the state’s limitation on honoring his wife’s end-of-life and reproductive choices. That refusal puts his designation at risk of being voided.
“When I agreed to become my wife’s patient advocate, I made a commitment to speak for her if she could not speak for herself, and honor her most personal decisions,” said patient advocate plaintiff Holcomb. “I would be devastated if I were denied the ability to advocate for my wife’s needs and honor her clearly-expressed decisions at her most vulnerable moment.”
“Everyone should have the freedom to decide what medical care they will accept or refuse throughout the course of their life–that right should not end when they become pregnant. Nor should our entrusted loved ones be denied the ability to actualize our end-of-life decisions,” said Farah Diaz-Tello, Senior Counsel and Legal Director at If/When/How. “Michigan’s constitution promises that the state will protect this freedom, and our clients are asking the state to make good on that promise.”
“The Pregnancy Exclusion is an anachronism that seriously harms pregnant individuals and is incompatible with Michiganders’ fundamental right to bodily integrity,” said local counsel Ken Mogill of Mogill & Lemanski. “It’s long past time for it to go.”
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 Michigan’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.
Ms. Muñoz’s case stands as a stark and extreme example of how Pregnancy Exclusions can be used to override the decisions of individuals and their loved ones, 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, but in recent years, states like Colorado and Washington have taken action to repeal these laws. Compassion & Choices and If/When/How have previously successfully challenged Idaho’s Pregnancy Exclusions in Almerico v. Denney and are currently challenging Kansas’s Pregnancy Exclusion in Vernon v. Kobach.
Take Action
1. Learn more about pregnancy exclusion laws across the country: Does your state invalidate or restrict a pregnant person’s advance directive?.
→ Read our brief on pregnancy exclusion laws
2. Protect yourself and your loved ones: Create an advance directive explicitly stating your wishes regarding medical care during pregnancy.
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