State Laws on Pregnancy and Health Care Directives

If you’re pregnant, your health care wishes may be overruled by your state law.

By , Attorney
Updated by Jeff Burtka, Attorney (George Mason University Law School)
Nolo

A health care directive or advance directive—sometimes separated into two documents, a living will and a power of attorney for health care—lets you tell health care providers what treatment you want if you later become unable to communicate your wishes. Providers usually will follow the wishes you express in your health care directive. But if you're pregnant, will doctors follow your wishes to withhold life-saving treatment or life support? The answer is complicated. Find out why below.

How State Laws and U.S. Supreme Court Decisions Can Affect Your Health Care Directive

Although health care providers are generally required to comply with the wishes you set out in a health care directive, pregnancy can create a big exception. Not all states have laws on the subject, but some do. (See the chart below.) For example, several states' laws say that doctors can't withdraw or withhold life support from a pregnant person—or that such treatment can't be withheld if the fetus can be brought to term. But whether that law is the last say on the subject is a question that hasn't yet been answered.

The U.S. Supreme Court case of Cruzan v. Director, Missouri Department of Health left open questions about the legality of not following a pregnant patient's health care directives. In Cruzan, the Supreme Court held that a competent patient has a constitutional right to refuse medical treatment—even if it causes the patient's death. But Cruzan didn't deal with a pregnant patient or a health care directive, so the court didn't address state laws that override pregnant patients' directives. Cruzan v. Director, Missouri Department of Health, 497 U.S. 261(1990).

Thankfully, pregnant patients on life support are rare, and as a result, court cases about health care directive restrictions during pregnancy are even rarer. This means courts currently offer almost no guidance on this issue.

One exception is an Idaho case in which a federal court ruled that nullifying a pregnant woman's health care directive was unconstitutional. In that case, four pregnant women challenged Idaho's official statutory form health care directive. The form directive stated it would not have any force if the patient became pregnant. The court said the form was unconstitutional under Cruzan because forcing life support on a pregnant patient to save a fetus violated the constitutional right of a competent person to refuse medical treatment. Almerico v. Denney, 532 F.Supp.3d 993 (2021).

Courts outside of Idaho are not required to rule the same way, so it's unclear how other courts would rule.

Because the Supreme Court has given little guidance about health care directives for pregnant patients, it will take more legal challenges to have a clearer picture about the constitutionality of nullifying health care directives when the patient is pregnant. For now, it's likely that health care providers will follow state laws—if they exist. See the state chart below to find out what your state's laws are.

How to Write Your Health Care Directive If You Might Become Pregnant

Regardless of whether your state has laws on the subject, if it's possible you will become pregnant in the future, it's important for your directive to explain your wishes in detail, and to specify whether your instructions apply even when you are pregnant. Some state laws are silent, and laws can also change. While there's a chance your wishes might not be followed, at least you can remove any ambiguity about what your wishes were.

You also should discuss your health care directive with the person you choose as your health care agent. That way, your agent can better argue for your wishes on your behalf—and perhaps even go to court to have your health care directive enforced.

Specific State Laws About Pregnancy and Health Care Directives

Here is a list of state laws about the effect that pregnancy has on health care directives.

State Laws on Pregnancy and Health Care Directives

No Effect: The law in your state does not allow your document directing health care to take effect when you are pregnant.

To Term: The law in your state will not allow your document directing health care to take effect if you are pregnant and your doctors believe the fetus could be brought to term while you are receiving life-sustaining treatment.

No Statute: Your state does not have any law about prohibiting withdrawal of life support if you are pregnant.

Alabama

No Effect

Alaska

To Term

Arizona

You may state whether or not you want your health care directions to be carried out if you are pregnant and it is possible for the fetus to develop to the point of live birth.

Arkansas

To Term

California

No Statute

Colorado

No Statute

Connecticut

You may indicate whether or not you want your health care directions to be carried out in the event of your pregnancy.

Delaware

To Term

District of Columbia

No Statute

Florida

Life-prolonging procedures will be provided unless you have expressly stated that your health care surrogate may authorize that life-prolonging procedures may be withheld if you are pregnant, or if your health care surrogate obtains court approval for withholding life-prolonging procedures.

Georgia

Life-sustaining procedures will be provided unless the fetus could not develop to the point of live birth and you expressly state that you want your health care instructions carried out.

Hawaii

No Statute

Idaho

No Statute

Illinois

To Term

Indiana

No Effect

Iowa

To Term

Kansas

No Effect

Kentucky

No Effect

Maine

No Statute

Maryland

You may indicate whether or not you want your health care directions carried out in the event of your pregnancy.

Massachusetts

No Statute

Michigan

If you are pregnant, your health care representative cannot make any medical decision to withhold or withdraw treatment that would result in your death.

Minnesota

You may indicate whether or not you want your health care directives to be carried out in the event of your pregnancy.

Mississippi

No Statute

Missouri

No Effect

Montana

To Term

Nebraska

To Term

Nevada

To Term

New Hampshire

Life-sustaining treatment will be provided unless your health care providers conclude that such treatment will not permit the fetus to develop to the point of live birth, or that such treatment will cause you physical harm or prolong severe pain that cannot be alleviated by medication.

New Jersey

You may indicate whether or not you want your health care directions to be carried out in the event of pregnancy.

New Mexico

No Statute

New York

No Statute

North Carolina

No Statute

North Dakota

Life-sustaining procedures will be provided unless those procedures will not permit the fetus to develop to the point of live birth, or your doctor concludes that prolonging your life would cause you physical harm or severe pain or would prolong severe pain that cannot be alleviated by medication.

Ohio

To Term

Oklahoma

You may indicate whether or not you want your health care directions carried out in the event of pregnancy.

Oregon

No Statute

Pennsylvania

Life-sustaining procedures will be provided unless your doctors conclude that the fetus could not develop to the point of live birth with continued application of those life-sustaining procedures, or prolonging your life would be physically harmful to you or cause you pain that could not be alleviated by medication.

Rhode Island

To Term

South Carolina

No Effect

South Dakota

Life-sustaining procedures will be provided unless your doctors conclude that the fetus could not develop to the point of live birth with continued application of those life-sustaining procedures, or that prolonging your life would cause you physical harm or prolong severe pain that cannot be alleviated by medication.

Tennessee

No Statute

Texas

No Effect

Utah

No Effect

Vermont

You may indicate whether or not you want your health care directions carried out in the event of pregnancy.

Virginia

You may provide additional or modified health care instructions that will apply only if you are pregnant when your document takes effect.

Washington

No Effect

West Virginia

No Statute

Wisconsin

No Effect

Wyoming

No Statute

Learning More and Talking to an Attorney

You can find more information about creating a living will and other health care documents in Nolo's Legal Encyclopedia. Although most people don't need an attorney to create a health care directive, if you're concerned that a health care provider might not follow the wishes you state in your directive, consider speaking with an estate planning attorney licensed in your state.

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