Last year, Abigail Ottaway made a decision: if she is ever pronounced brain-dead and doctors don’t think she can recover, she doesn’t want to be kept on life support.
“I’ve seen situations where that happens, and it feels to me that it drags out (the dying process) arbitrarily,” said Ottaway, a Lawrence resident and University of Kansas law student.
“The other reason is that I wouldn’t want to put my family in a financial position to be paying for life support when it’s not going to help me,” she added.
Ottaway began the process formalizing that decision in an advance directive or living will, a right afforded to almost all Kansas adults by the state’s Natural Death Act.
Then, she learned that Kansas law directs doctors to ignore those wishes if she becomes pregnant.
“That really angered me. It feels very invasive,” said Ottaway, who wants to have children in the future. “It makes me wary of becoming pregnant here.”
Ottaway is one of five women who are suing Kansas over the “pregnancy exclusion,” arguing that it violates the right to personal autonomy and equal protection under the Kansas Constitution. She’s joined by Emma Vernon, a Lawrence woman who is currently pregnant, and Laura Stratton, a Lawrence mother of two children.
Vernon’s living will specifies that if she is diagnosed with a terminal condition while pregnant, she will only accept life-sustaining treatment if doctors believe her fetus would be born with a meaningful prospect of sustained life and without significant life-impairing conditions, according to the lawsuit.
“I shouldn’t have to fear that my pregnancy could cost me my dignity and autonomy,” Vernon said in a statement. “If something were to happen to me during this pregnancy I would have no control over the end-of-life care I receive.”
The Kansas women are requesting the court to prevent Kansas Attorney General Kris Kobach and the Kansas Board of Healing Arts from enforcing the law.
Kobach did not respond to a request for comment, nor did the Douglas County district attorney, also named as a defendant in the lawsuit. A representative for the healing arts board declined to comment.
Two doctors are also suing, alleging that the law exposes them to legal and ethical liabilities because it does not provide guidance on how to treat incapacitated, terminally-ill patients who are pregnant.
“It frightens me,” said Dr. Lynley Holman, an OB-GYN at a Lawrence hospital. “Traditional care that I would provide and a wish that I would honor could place my career and livelihood in jeopardy.”
The lawsuit comes as concern grows over a decision by Georgia doctors to keep a brain-dead pregnant woman on life support for more than three months because of a state law that prohibits abortion after around six weeks. The woman, Adriana Smith, was nine weeks pregnant when she was pronounced legally dead due to blood clots, and will be kept on a ventilator until her fetus can be delivered at 32 weeks.
Compassion & Choices, a national nonprofit that advocates for end-of-life rights, is representing the Kansas women alongside the national nonprofit If/When/How: Lawyering for Reproductive Justice and the Kansas law firm Irigonegaray & Revenaugh.
“The ultimate question this case asks is whether people lose their constitutional rights when they become pregnant — and I think the Kansas Constitution clearly states no,” said Jess Pezley, an attorney for Compassion & Choices.
Compassion & Choices and If/When/How prevailed in a similar case in 2021 when a federal judge ruled that Idaho’s pregnancy exclusion violated the rights of four women under the U.S. Constitution.
More than 30 states have some form of pregnancy exclusion in their laws governing advance directives. But Pezley says Kansas is one of only nine states that automatically nullifies a living will as soon as someone becomes pregnant — long before fetal viability, and often before someone is aware of their pregnancy.
“These are some of the most consequential decisions we’ll ever make,” Pezley said. “The suggestion that someone is less capable of planning for their medical care because they are pregnant, or because they could become pregnant, is just really offensive.”
In an email, the Kansas Catholic Conference described the lawsuit as a “cynical court action promoted by a radical out-of-state pro-euthanasia group.”
“It is sad to see the valid instrument of advance directives being exploited to promote unlimited abortion and undermine the legitimate ethical goal of saving innocent preborn lives,” said Lucretia Nold, a lobbyist for the group.
Rose Conlon reports on health for KMUW and the Kansas News Service. The Kansas News Service is a collaboration of KCUR, KMUW, Kansas Public Radio and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy. Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org.
