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September 14, 2021

Idaho Decision Addresses Advance Directive Pregnancy Restriction Plus More

Katlyn Slough

The PDF in which this article appears can be dowloaded here: Bifocal Vol. 43 Issue 1.

In Almerico v. Denney, the Idaho District Court issued a landmark decision regarding the right of pregnant individuals to decline life-sustaining treatment. The Court found that a provision invalidating a pregnant individual’s advance directive, which the State had interpreted as mandatory, is voluntary. In so holding, the Court made three significant decisions. First, a pregnant woman has standing to challenge a pregnancy exclusion at the moment of creating an advance directive. Second, an absolute pregnancy exclusion is unconstitutional. Third, being in substantial compliance with the form of an advance directive requires only competency and authenticity.

The Case

Four plaintiffs challenged the constitutionality of Idaho Code § 39-4510(1) by suing representatives of the Department of Health, the Secretary of State, and the State Attorney General. Section 39-4510(1) states that any competent person may create an advanced directive that “shall be in substantially the following form, or in another form that contains the elements set forth in this chapter.” The form contains options for the user regarding choice of care.

Other provisions in the form are declarative sentences. Paragraph two contains a “Pregnancy Exclusion:” “If I have been diagnosed as pregnant, this Directive shall have no force during the course of my pregnancy.” The defendants’ websites provided information on advance directives. In particular, the frequently asked questions (FAQ) sections provided the question, “What if I am pregnant when I become incapacitated?” The websites answered, “Life sustaining measures will continue regardless of any directive to the contrary until the pregnancy is complete.” The FAQ was created by the Idaho Attorney General’s office in 2005. Since the filing of the lawsuit, the question and answer have both been removed.

All four plaintiffs are of a childbearing age who have been pregnant and have children, but only two were pregnant at filing. Each plaintiff also created an advance directive. Two did not include the Pregnancy Exclusion; the remaining two state that, if they were pregnant and the fetus is at or past the point of viability, they want and consent to life-sustaining treatment. Because the Court found that the women faced a real threat that their advance directive would be ignored, the Court granted the plaintiffs standing.

Analyzing the statute, the Court found that the opening section of the Medical Consent and Natural Death Act makes clear that the Pregnancy Exclusion is only a suggested format. In fact, the Court found that, based on the wording of the statute, the only required elements for a directive are competency and authenticity. A woman must be competent to make decisions about healthcare, and the directive must be an authentic expression of a woman’s wishes. However, the language on the websites would lead individuals to believe that the Pregnancy Exclusion was the law. The language was on the website for 15 years and had created a lasting incorrect interpretation of the law with the weight of the State of Idaho behind the interpretation. A pregnant woman about to die, whose advance directive dictated the withdrawal of all life support, could have life support forced upon her until her baby could be delivered.

Because of this ambiguity, the Court found a credible threat that health care providers and others will refuse to accept an incapacitated woman’s advance directive because it fails to include the pregnancy exclusion. The longstanding interpretation violates the constitutional right of a competent person to refuse unwanted lifesaving medical treatment. The interpretation also violates the First Amendment, which prevents the Government from compelling individuals to express certain views.

Both parties have filed an appeal with the Ninth Circuit, so the precedential impact of the case will not be known for certain until a later point in time.


This holding contains three significant decisions. First, the Court determined when a woman had standing to challenge a pregnancy exclusion: as soon as a woman executed her directive. The Court reasoned that a woman is injured because she faces an immediate credible threat that her directive will be ignored, and that she will receive end-of-life medical treatment to which she did not consent. The Court distinguished the case from prior similar cases where the women did not have standing because they were not pregnant, and thus there was no “realistic danger” that the pregnancy exclusion requirement would directly cause injury. In the instant case, two of the plaintiffs were pregnant, but the court went beyond that distinction and disagreed with the very reasoning of the prior cases, holding that plaintiffs need not “await the consummation of threatened injury to obtain preventative relief:” a credible threat of harm is sufficient, especially because women have been harmed this way specifically in the past. This precedent, if it stands, should allow more women to have standing to challenge pregnancy exclusions, before they are pregnant or terminally ill.

Second, the Court held that an absolute, mandatory pregnancy exclusion in an advance directive is unconstitutional. In this case, the State of Idaho had not required the language in the statute, but had promoted its use on its websites, creating a lasting interpretation that poses real risks to women. However, this holding creates precedent for interpreting different types of pregnancy exclusions. As of December 2019, thirty-six states have pregnancy exclusion laws in their statutes. These laws come in different degrees: when a pregnant patient is on life support, the laws will treat her advance directive as (1) void per se, (2) void if the fetus can develop to birth at some level of certainty, (3) void unless an ethical condition is met, (4) void unless the woman specifically states “In the case of pregnancy,” or (5) the law will honor directives if pregnant, unless the fetus is viable. Interpretation of the statutes has previously been muddled with abortion questions; this holding could provide some clarity to an independent analysis of pregnancy exclusion statutes.

Third, the court interpreted what it meant for an advance directive to be in substantial compliance with the Act. Significantly, the statute expressly stated that its purpose was to recognize “the right of a competent person to have his or her wishes for medical treatment and for the withdrawal of artificial life-sustaining procedures carried out.” The court noted that the statue goes on to state that, “nothing in [these sections] shall impair or supersede any legal right ... to effect the withholding or withdrawal of life-sustaining procedures.” Indeed, “[a]ny authentic expression of a person’s wishes with respect to health care should be honored.”

Relying on these provisions, the Court found that the only required elements for substantial compliance are competency and authenticity. The woman must be competent to prepare a directive, and the directive must be an authentic expression of her wishes. This holding could help to loosen the practical necessity of what it means to be substantially in compliance with a statutory advance directive form.

    Katlyn Slough

    JD Candidate University of Maryland Law; Intern, ABA Commission on Law and Aging