During the last few weeks, more than a couple of barrels of ink have been spilled about Louisiana State Representative Austin Badon’s (D- New Orleans) HB 1274, a bill ostensibly intended to require mechanical life support for brain-dead pregnant women, regardless of what her family desires. HB 1274 sailed through the legislature nearly unanimously, and currently, it’s sitting on Governor Bobby Jindal’s desk, awaiting his signature.

It’s a complicated and controversial issue, no doubt about it. But perhaps more importantly, HB 1274 is also an embarrassingly sloppy piece of legislation, and no matter what your personal opinions may be about abortion or the “sanctity of life,” it’s still terrible and misguided public policy that demands a gubernatorial veto.

I recently spoke, at length, with Representative Badon about this legislation, and I genuinely respect and appreciate his concerns and his intentions. Representative Badon believes that when a woman is more than twenty weeks pregnant, the state should presume her intention is to carry the baby to term, in the absence of a living will, an advance directive, or an order previously given by the woman to her physician.

To me, that general presumption is imminently sensible, though I also believe in the dignity of allowing a woman’s family the ability to rebut that presumption.

However, as a matter of law, there is an enormous difference between being temporarily incapacitated or comatose or in a vegetative state and being brain-dead, and it’s a distinction recognized in Louisiana. If you’re brain-dead, you’re also legally dead. It seems macabre and cruel for the government to mandate mechanical life support for a legally dead woman, against the expressed wishes of her family, in order to ensure that she gives birth, months later, to an unwanted baby exponentially more likely to suffer from deformities and severe disabilities. (It’s worth noting that I was born with cerebral palsy. I’m extremely fortunate that I was born into a nurturing, successful, and intensely intelligent family, and I like to think that I am wise enough to recognize my own good fortune).

Representative Badon asserts his bill does, indeed, apply to brain-dead pregnant women, and the state and national media have repeated that assertion without question.

According to two of the nation’s leading legal experts in the subject, lawyer and Drexel University Professor of Nursing Kathy Taylor and SMU Law Professor Tom Mayo, it’s simply not true. Quoting Professor Mayo (bold mine):

As written, the bill says that Louisiana law should be interpreted to keep providing life support for a 20+-week-old fetus if “the pregnant woman’s life can reasonably be maintained in such a way as to permit the continuing development and live birth of the unborn child.” I don’t think this provision would apply to a brain-dead pregnant woman, because her life cannot be maintained.

And quoting from Professor Taylor (bold mine):

I know, the media reports on this bill are so inaccurate, talking about brain-dead women, etc.  The bill appears to allow women to execute an advance directive saying what they would want if they were pregnant, even though that is not expressly stated.  This is because the clause applies WHEN THERE IS AMBIGUITY, and if a woman has an advance directive addressing pregnancy, then there is no ambiguity.

The fact is, though, that most women of this age do not have an advance directive anyway. The real reach of the the law is this: when a woman has no advance directive that clearly says what she wants or has not clearly told her physician what she wants for purposes of a POLST (and that would be most women), then her family members will not be allowed to make the decision for her, as they otherwise would be allowed to do for other medical decisions.

The statue sets out classes of persons that can make a decision for a patient if that patient is incompetent (these are called “surrogate decision makers”).  But in the case of pregnancy, they will not be allowed to do so once the fetus is 20 weeks and the other conditions are met. The bill also could be interpreted to apply to brain dead women because of the clause about how the act should be interpreted to err on the side of preserving life.

But since the law itself does not seem to apply to brain-dead women, I think that interpretation is inaccurate. That issue, if taken to court, could very well end up like the Texas case, where the court found that the law did NOT apply to brain-dead women. The bottom line is that women should clearly address what they would want if they were pregnant in their advance directive, or if possible discuss this issue with their physicians for the purpose of the POLST if they are already critically ill, because their family members will not be able to make a decision to discontinue treatment once she is 20 weeks pregnant and there is a reasonable chance of a live birth.

Badon’s bill only applies to “qualified patients,” and under Louisiana law, someone who is brain-dead is not considered a qualified patient. Put simply, you can’t maintain the “life” of someone who is already legally dead, because there’s no life to maintain.

Professor Taylor says it best: “I know this is complicated, but the bill is so badly drafted that interpreting it is complicated.

Governor Jindal will likely sign this bill or allow it to lapse into law, and if he does, it’ll be yet another example of his own squandered, sloppy, pandering, anti-intellectual leadership.

3 thoughts

  1. An excellent article. The last sentence in all likelihood will prove true and will be yet another black eye on Louisiana. But we’ve only ourselves to blame.

  2. So, just how much control does the gummint NEED in our personal lives now? This “bill”, and I use the term very loosely here, is repugnant to me on its face. This newest intrusion into the personal lives of citizens of the US of A a getting beyond belief.
    How much control over our lives does the gummint NEED? Are there ANY limits to what the various levels of gummint in this country into the deepest portion of our lives? This “bill” has nothing at all to do with abortion in my opinion, yours may vary of course. This bit about the family members not being allowed any say in this without some living will or some such is amazing to me. Would not a parent know how/what their own child would want as opposed to some gummint paper pusher? I would thinks so, but again, that is just my opinion.
    This brings up even more questions than answers. Just what limits are there to the continuing intrusions into the deepest portions of our personal lives are there? Better yet, are there ANY such limits on any level of gummint in the US of A today?
    We have been told many times in recent years how the entire world is not the “battlefield” in this war OF terror, by extension then, this makes us, the citizens of the US of A possible “unlawful enemy combatants”. It certainly makes us ALL suspect in the eyes of the current and recent administrations, from 2001 until today at least. Our personal communications are monitored, our emails, twitters, farcebook, blog posts, blog comments, any and ALL forms of communication monitored 24/7. Are there ANY limits to gummint intrusion into our own personal lives? Are we still citizens of what once was a Constitutional republic? IS the US Constitution still the law of the land? Are we now to have absolutely NO expectation of any personal privacy at all?
    I think these are very serious questions and this “bill” is just one more unnecessary deep intrusion into OUR personal lives. This sort of thing needs to be stopped or we will no longer be free citizens, we will be just subjects of the various governments at every level.
    America, where are you now?
    Mr. White, please feel free to edit or delete this comment. It is YOUR blog and I respect your right to pick and choose what you will allow to be said here. If you delete no problem I will still read your work. I respect your work and have been following this blog for some time. What I have stated here are MY opinions and I am fully aware that others may have different opinions than mine. As far as I know, this country still has a valid First Amendment that guarantees the freedom of speech. I respect those who disagree with me, as long as they do so in a civil manner and not resort to name calling, etc.
    Thank you sir for ALL that you do on this blog. In my opinion, you are a very honorable human being. Again, this is MY own personal opinion and I am NOT trying to “curry favor” with you or to allow this comment to stand as is. Your blog, your rules and I WILL respect that sir.
    Thank you for your time reading this comment.

  3. Republican women voted for this clown ,Let the live with it (pun intended .I wonder who will pay the bill ? Elect fanatics ,live with fanatic laws , Bubba jindal is our Taliban. Maybe we are all suppose to face baton rouge 3 times a day and pray to Bobby , He is Now the conservatives god

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