Women Fight Idaho’s ‘Pregnancy Exclusion’ for Living Wills

(CN) — Four women on Thursday challenged the constitutionality of an Idaho law that invalidates an adult woman’s living will if she is pregnant.

Lead plaintiff Anna Almerico claims the Pregnancy Exclusion in Idaho’s Medical Consent and Natural Death Act of 2005 violates the Constitution in many ways:

a) it “improperly infringes on the right to privacy in making medical decisions and subjects women of child bearing age to unequal and demeaning treatment;”

b) it violates due process and equal protection;

c) it “eliminates the right of a woman who has been diagnosed as pregnant to have her express decisions about medical treatment, including whether to request or decline life-sustaining measures, honored by her health care providers;”

d) it “renders ineffective the right of a woman who has been diagnosed as pregnant to designate her health care agent;”

e) “because of the law, the effectiveness of the health care directives of all women of childbearing age in Idaho is thrown into question until each woman’s pregnancy status is determined;”

f) it violates privacy;

g) and “Defendants have exceeded the statute’s mandate by publicly stating that not only will the health care directives of women who have been diagnosed as pregnant be rendered null and void, but they will be forced to receive life-sustaining treatment for the duration of their pregnancies.”

The defendants in Boise Federal Court are the state, its Attorney General Lawrence Wasden, Secretary of State Lawrence Denney, and Department of Health and Welfare Director Russell Barron. All are men; all are Republicans, as is Gov. Butch Otter, who appointed Barron.

The Medical Consent and Natural Death Act concerns what constitutes informed consent for medical services, and the “fundamental right of competent persons to control the decisions relating to the rendering of their medical care, including the decision to have life-sustaining procedures withheld or withdrawn.”

The Act specifically addresses the procedures whereby people may execute a living will and durable power of attorney for their health care.

But the model form provided in the Act includes this Pregnancy Exclusion: “If I have been diagnosed as pregnant, this Directive shall have no force during the course of my pregnancy.”

This violates the Constitution’s guarantees of due process and equal protection by “singling out women of childbearing age for unequal and demeaning treatment, and invalidating their right to determine their medical treatment without justification.”

The women seek declaratory judgment that the Pregnancy Exclusion is unconstitutional, and an injunction against its enforcement, plus costs of suit.

The lead plaintiff’s attorney Richard Boardman with Perkins Coie in Boise is assisted by Kevin Diaz with Compassion and Choices in Portland, Oregon, and Sara Ainsworth with Legal Voice in Seattle.

The 10-page lawsuit was published to Courthouse News subscribers after office hours Thursday. None of the parties could be reached for comment Thursday night or early Friday morning.

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