Compassion Legal files new lawsuit challenging pregnancy exclusion in Michigan

As an emergency medical physician, Dr. Viktoria Koskenoja has seen firsthand how life can change in an instant. She also knows how protracted the dying process can be. 

This gave her good reason to complete an advance directive after giving birth to her first child: Having witnessed her own mother’s slow and painful death, she had no desire for her child to have to do the same. 

Dr. Koskenoja lives in Michigan, where there is no living will law. Instead, an individual’s advance directive is a durable power of attorney for healthcare in which they list their decisions and then appoint an agent to carry them out. Dr. Koskenoja did so, naming her husband, Sam Holcomb, as her designated healthcare proxy. 

Then Dr. Koskenoja’s lawyer informed her that she could not include pregnancy-related instructions in her advance directive. Even if she did, he said, under current Michigan law,  if Dr. Koskenoja were pregnant and incapacitated, Sam could not advocate for her end-of-life choices. 

According to the state of Michigan, if she were pregnant, Dr. Koskenoja’s right to make deeply personal end-of-life medical decisions would be denied. 

Pregnancy Exclusions: discriminatory and unconstitutional

This month, Compassion Legal filed a lawsuit on behalf of Dr. Koskenoja and other Michigan women, physicians, and patient advocates who argue the state’s Pregnancy Exclusion violates their constitutional rights.

More than 30 states currently have advance directive laws containing a pregnancy exclusion. These provisions restrict the ability of people who are pregnant or capable of becoming pregnant to direct their end-of-life care and can result in pregnant individuals receiving invasive treatment they do not want or need. 

Michigan’s Pregnancy Exclusion is at odds with its state constitution, which voters amended in 2022 to include explicit protections for “the right to make and effectuate decisions about all matters relating to pregnancy.” The Pregnancy Exclusion denies these fundamental rights to pregnant people.  

Fighting nationwide to protect patient-directed care

Everyone, regardless of their pregnancy status, should be able to direct the care they would or would not want at the end of life.

Compassion Legal is on the frontlines of protecting that right. In 2022, Compassion Legal achieved a landmark victory with the settlement of Almerico v. Idaho, a federal lawsuit challenging an Idaho law that voided the living wills, or advance directives, of all pregnant people. Plaintiffs challenged the provision as violating their constitutional rights to medical decision-making and bodily integrity, gender equality and freedom of speech.

This historic win paved the way for Compassion Legal’s current challenges to other state pregnancy exclusions, including in Kansas state court with Vernon v. Kobach, another case drawing national attention to these discriminatory provisions. 

Now Compassion Legal, in coordination with If/When/How: Lawyering for Reproductive Justice, Perkins Coie LLP, and Mogill & Lemanski, PLLC, are bringing the fight to Michigan. 

If you or a loved one is facing barriers to getting the care you want at the end of life, we want to hear from you. Call us at 800.247.7421 or visit CandC.org/CompassionLegal.