Repro Groups Sue Michigan Over Law Denying Pregnant Women Control of Their Bodies in End-of-Life Decisions

Plaintiffs are challenging Michigan’s advance directive pregnancy exception as a violation of the state’s constitution.

Bodily autonomy shouldn’t vanish with a positive pregnancy test—yet in Michigan, it can.

On Oct. 23, a coalition of Michigan women, physicians and patient advocates filed a lawsuit, Koskenojo v. Whitner, challenging the constitutionality of Michigan’s pregnancy-exclusion law that forces life support on pregnant women by denying incapacitated pregnant patients the right to refuse life-sustaining treatment.

“Our plaintiffs are simply asking for the same rights the Michigan Constitution guarantees all Michiganders,” said Jess Pezley, senior staff attorney at Compassion Legal: The End-of-Life Justice Center at Compassion & Choices, which filed the lawsuit, along with If/When/How: Lawyering for Reproductive Justice; Perkins Coie; and Mogill & Lemanski. “Denying individuals the right to refuse treatment because they are pregnant is fundamentally at odds with the Michigan Constitution.” 

The case relies on a voter-approved 2022 constitutional amendment that explicitly protects “the right to make and effectuate decisions about all matters relating to pregnancy.”

Many states have laws requiring enforcement of living wills or advance directives—legal documents that outline a person’s wishes for end-of-life medical care or care if they become incapacitated—but Michigan does not.

Instead, the state permits chosen patient advocates to make medical decisions on behalf of incapacitated people—unless they are pregnant.

Under Michigan’s pregnancy exclusion law, an advocate’s authority to refuse life-sustaining treatment ends the moment pregnancy begins, 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.”

One plaintiff—Nikki Sapiro Vinckier of Birmingham, Mich.—explained her objections to Michigan’s pregnancy exclusion law. “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.

“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.”

Another plaintiff—Ann Arbor oncologist and hematologist Dr. Jay Winegarden, a specialist in end-of-life treatment for pregnant individuals—insists that end-of-life decisions should remain squarely with the patient. “As physicians, we have a responsibility to honor our patients’ medical decisions and respect their right to informed consent. That responsibility does not change when our patients become pregnant.” 

Michigan isn’t an outlier.

• According to If/When/How, 34 U.S. states have imposed some form of restriction or specific provision regarding advance directives during pregnancy.
• Nine states—including Michigan—void a pregnant patient’s advance directive entirely, rendering it invalid once pregnancy is confirmed.
• Twelve states bar withdrawing life-sustaining measures if medical professionals believe the fetus can be gestated to a point where it can be delivered.
• Five states require treatment to continue unless a doctor finds futility or serious harm.
• Eight states allow individuals to add explicit instructions to their advance directive regarding care during pregnancy, but otherwise, their advance directive may be invalid.

While many states deny pregnant women’s end-of-life decisions, the tide may be turning against pregnancy-exclusion laws nationwide. In recent years, Colorado and Washington have repealed pregnancy exclusion laws, while courts struck down Idaho’s pregnancy exclusion law as unconstitutional in Almerico v. Denney. The push to strike down these laws continues as Compassion & Choices and If/When/How are currently challenging Kansas’s Pregnancy Exclusion in Vernon v. Kobach.

At stake is who decides: the patient, or the state that has promised reproductive autonomy but has yet to deliver, says Farah Diaz-Tello, senior counsel and legal director at If/When/How.

“Everyone should have the freedom to decide what medical care they will accept or refuse throughout the course of their life and 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. 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 2013 Texas case of Marlise Muñoz put a national spotlight on the exclusion of pregnant women from advance directives. At 14 weeks of pregnancy, Muñoz was declared brain dead, yet the hospital refused to cease medical interventions after her death, citing Texas’s pregnancy exclusion law. After the hospital defied her wishes, her family sued to end the unwanted treatment. They endured months of trauma as the hospital forced invasive machines on the dead body of their loved one over her family’s objections, until a Texas court finally ordered the hospital to disconnect them.

Last June, a brain-dead Georgia woman Adriana Smith was kept on life support for more than three months because she was eight weeks pregnant at the time she was declared brain-dead. The hospital told Smith’s family that Georgia law required that they keep her life support to allow the fetus to grow.

“She’s been breathing through machines for more than 90 days,” said Smith’s mother April Newkirk last May. “It’s torture for me. I see my daughter breathing, but she’s not there. I think every woman should have the right to make their own decision. And if not, then their partner or their parents.”

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In light of Michigan’s constitutional protection for pregnancy decision-making and the national rollback of these laws, the Constitution and the patient must prevail, said local counsel Ken Mogill of Mogill & Lemanski. “The Pregnancy Exclusion is an anachronism that seriously harms pregnant individuals and is incompatible with Michiganders’ fundamental right to bodily integrity. It’s long past time for it to go.”

If/When/How encourages everyone to create an advance directive explicitly stating your wishes regarding medical care during pregnancy.