Cardozo Law Review
Cardozo L. Rev.
Part I of this Article provides a general introduction to the various types of advance directives available in the United States, including their goals and limitations. Part II provides a detailed overview of pregnancy restrictions, including comparisons of the substantive restrictions, procedural issues, and rationales for restricting the application of advance directives during pregnancy. Part III offers a critical analysis of both the scholarship addressing pregnancy restrictions and the litigation seeking to challenge the restrictions, demonstrating that the existing legal framework has not been satisfactory in resolving the issues—a situation that will only be exacerbated by the Supreme Court’s recent decision to overrule Roe v. Wade.
Part IV offers an alternative. Taking a cue from those who advocate for the creation of special advance directives for early-stage Alzheimer’s patients, it is time to consider the creation of a Pregnancy Advance Directive: a targeted medical form addressing a patient’s wishes in the case of decisional incapacity during pregnancy, which could be completed only after the patient has become pregnant. Although it would not answer those critics who prioritize the interests of the fetus above all, it would address the concerns of those who fear prior directives may no longer reflect the new circumstances of pregnancy. It would also have the salutary effect of encouraging physicians to discuss these issues with their pregnant patients, leading to deeper consideration of the concerns and establishing a more detailed record in the event such a difficult decision must be made.