Almerico et al v. Denney et al

Filing 71

MEMORANDUM DECISION AND ORDER. The motion for summary judgment filed by plaintiffs (docket no. 62 ) is GRANTED IN PART AND DENIED IN PART. The motion for summary judgment filed by defendants (docket no. 59 ) is GRANTED IN PART AND DENIED IN PART. Signed by Judge B. Lynn Winmill. (alw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ANNA ALMERICO, CHELSEA GAONALINCOLN, MICAELA AKASHA DE
LOYOLA-CARKIN, and HANNAH
SHARP,
Plaintiffs,

Case No. 1:18-CV-239-BLW
MEMORANDUM DECISION &
ORDER

v.
LAWRENCE DENNEY, as Idaho Secretary
of State in his official capacity,
LAWRENCE WASDEN, as Idaho Attorney
General in his official capacity, and DAVE
JEPPESEN, as Director of the Idaho
Department of Health and Welfare in his
official capacity,
Defendants.

INTRODUCTION
The Court has before it cross-motions for summary judgment. The Court heard
oral argument on February 26, 2021 and took the motions under advisement. For the
reasons explained below, the Court will grant in part both motions, holding that (1) the
pregnancy exclusion contained in the form following Idaho Code § 39-4510(1) is not
required to be contained in a woman’s advance directive; and (2) the defendants’
erroneous interpretation that the pregnancy exclusion was required to be in a woman’s
advance directive violated plaintiffs’ First, Fifth, and Fourteenth Amendment rights.

Memorandum Decision & Order – page 1

LITIGATION BACKGROUND
Plaintiffs are four women who challenge the constitutionality of a subsection of
Idaho’s Medical Consent and Natural Death Act, Idaho Code §§ 39-4501 through -4515.
The Act provides a template or form for an advance directive, which contains a person’s
health care directives in the event they become incapacitated. See Idaho Code § 394510(1). The Act’s advance directive form contains the following element that plaintiffs
challenge: “If I have been diagnosed as pregnant, this Directive shall have no force
during the course of my pregnancy.”
The parties disagree about the effect of the challenged element in the Act’s
advance directive form. Plaintiffs contend that the Act requires the pregnancy exclusion
while the defendants contend that the Act does not require any person to use the advance
directive form or to include the challenged element in their directive; they also contend
that the Act does not automatically invalidate a pregnant woman’s directive.
The plaintiffs’ original complaint brought a facial challenge to IC § 39-4510 under
the Due Process and Equal Protection Clauses of the United States Constitution.
Defendants responded with a motion to dismiss arguing that a facial challenge could only
succeed if the plaintiffs showed that no set of circumstances exist under which the statute
would be valid, a showing impossible to make. See U.S. v. Salerno, 481 U.S. 739 (1987).
The Court agreed, holding that under some rare circumstances the statute would be valid,
foreclosing a facial challenge under the Salerno test. See Memorandum Decision (Dkt.
No 33). The Court did, however, give plaintiffs an opportunity to amend their complaint

Memorandum Decision & Order – page 2

to allege as-applied challenges under the Equal Protection and Due Process Clauses of
the United States Constitution. Id.
The plaintiffs amended their complaint to add those as-applied challenges. They
also added a claim that the pregnancy exclusion essentially compelled them to speak a
message dictated by the Government, a violation of the First Amendment.
Both sides then filed motions for summary judgment based on a joint stipulation
of facts. The Court will rely upon those stipulated facts in resolving the cross motions.
See Stipulation (Dkt. No. 58).
FACTS
Idaho’s Medical Consent and Natural Death Act states that its “primary purposes”
are to:
(a) To provide and codify Idaho law concerning consent for the furnishing
of hospital, medical, dental, surgical and other health care, treatment or
procedures, and concerning what constitutes an informed consent for such
health care, treatment or procedures; and
(b) To provide certainty and clarity in the law of medical consent in the
furtherance of high standards of health care and its ready availability in
proper cases.
See Idaho Code § 39-4501. While the first several sections of the Act deal with consent
to medical provisions generally, later sections specifically address end-of-life situations.
The purpose of those provisions is set forth in Idaho Code § 39-4509(2) & (3):
(2) In recognition of the dignity and privacy which persons have a right to
expect, the legislature hereby declares that the laws of this state shall
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 even though that person is no longer able to
communicate with the health care provider.
Memorandum Decision & Order – page 3

(3) It is the intent of the legislature to establish an effective means for such
communication. It is not the intent of the legislature that the procedures
described in sections 39-4509 through 39-4515, Idaho Code, are the only
effective means of such communication, and nothing in sections 39-4509
through 39-4515, Idaho Code, shall impair or supersede any legal right or
legal responsibility which a person may have to effect the withholding or
withdrawal of life-sustaining procedures in any lawful manner, provided
that this sentence shall not be construed to authorize any violation of
section 39-4514(3), Idaho Code. Any authentic expression of a person’s
wishes with respect to health care should be honored.
The very next section, Idaho Code § 39-4510(1), states that any competent person
may direct end-of-life care in a document entitled “Living Will and Durable Power of
Attorney for Health Care” that “shall be in substantially the following form, or in another
form that contains the elements set forth in this chapter.” The form that follows is
entitled “A Living Will – A Directive to Withhold or Provide Treatment.” The form
contains options for the user to choose a level of care ranging from withdrawing all
medical care to providing all medical care. Other provisions in the form do not offer
options but are instead declarative sentences. For example, paragraph 3 contains a
statement that the signatory is “mentally competent” and will hold harmless any of the
providers carrying forth her desires contained in the form. A similar declarative sentence
is contained in paragraph 2 – the pregnancy exclusion – stating as follows: “If I have
been diagnosed as pregnant, this Directive shall have no force during the course of my
pregnancy.”
The Act also creates a state-maintained health care directive registry. See Idaho
Code § 39-4515. The Act allows, but does not require, persons to register their advance
directives in the state directory regardless of whether the directive conforms to the
Memorandum Decision & Order – page 4

statutory form in § 39-4510. See Idaho Code §§ 39-4514(10); 39-4515(7). The State
does not review advance directives for compliance with the law at registration, and
registration does not create a presumption that an advance directive is valid. See Idaho
Code § 39-4515(4). All four Plaintiffs have executed advance directives that do not
include the pregnancy exclusion language contained in the form following § 4510(1).
The Plaintiffs
Plaintiffs Anna Almerico, Mikaela de Loyola-Carkin, Chelsea Gaona-Lincoln, and
Hannah Sharp are all Idaho women of childbearing age who have been pregnant and have
children. Ms. Gaona-Lincoln and Ms. Sharp were pregnant and gave birth to children
during this litigation.
Each plaintiff created an advance directive determining the treatment she would
consent to or not consent to if she were to become incapacitated. All of the plaintiffs want
these decisions to be respected regardless of whether they are pregnant, so they did not
include the Pregnancy Exclusion in their directives. Ms. Almerico’s and Ms. Sharp’s
directives 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. All plaintiffs made their advance
directives to ensure that their end-of-life medical treatment aligns with their values and
beliefs. They also designated health care agents to effectuate these decisions. Plaintiffs
memorialized their health care decisions in advance directives because they want those
decisions to be honored, regardless of their pregnancy status.
Three of the four plaintiffs (Ms. Almerico, Ms. Gaona-Lincoln, and Ms. de
Loyola-Carkin) have registered their directives in the state registry. Plaintiff Sharp
Memorandum Decision & Order – page 5

believes she submitted her directive for registration but the Secretary of State has no
record of receiving a directive from Ms. Sharp.

The Website
Since 2005 and until after this litigation was filed, defendants’ websites contained
information on advance directives and included the following in a section addressing
frequently asked questions (FAQ) and the State’s answers to those questions: “What if I
am pregnant when I become incapacitated? Life sustaining measures will continue
regardless of any directive to the contrary until the pregnancy is complete.”
The FAQ was originally created by the Idaho Attorney General’s office in 2005,
shortly after the Act became law. This lawsuit, filed in 2018, caused defendants to
evaluate the accuracy of the FAQ. All defendants now state that the FAQ does not
accurately reflect the Act’s effect on pregnant women’s directives. All defendants now
interpret the Act (1) as not requiring any person to use the statutory template – that is, the
form following § 4510(1) – or to include the statutory template’s challenged language
regarding pregnancy in their directive; and (2) as not requiring an incapacitated pregnant
person to receive life-sustaining treatment if such treatment is contrary to her directive.
All defendants have removed the FAQ from their websites. However, the form or
template including the pregnancy exclusion is still contained on the Secretary of State’s
website. There is no accompanying explanation that the pregnancy exclusion is not a
required element of any directive as the defendants now concede.

Memorandum Decision & Order – page 6

ANALYSIS
Standing/Mootness
For the plaintiffs’ claims to be justiciable under the “case or controversy”
requirement of Article III, they must have standing to bring the claim, and the claim must
not be moot. Jacobs v. Clark County, 526 F.3d 419, 425 (9th Cir.2008). To satisfy
Article III standing, plaintiffs must show they suffered (1) an injury-in-fact that (2) is
fairly traceable to the challenged conduct and (3) will likely be redressed by a favorable
judicial decision. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
The Court turns first to the injury requirement for standing. Intangible injuries can
be injuries sufficient to satisfy this test. Id. at 1549. In a case where plaintiffs claimed
that the state interfered with their liberty interest in making end-of-life decisions for a
comatose woman, the Supreme Court proceeded directly to the merits of the
constitutional claims, apparently assuming that plaintiffs had standing. Cruzan v.
Director, Mo. Dept. of Health, 497 U.S. 261 (1990). But if a woman is not comatose and
is instead attempting ahead-of-time to avoid a Cruzan-type tragedy by challenging a
pregnancy exclusion requirement, courts have found a lack of standing. For example, in
Gabrynowicz v. Heitkamp, 904 F. Supp. 1061 (D.N.D. 1995), the court reasoned that
because the woman was not pregnant or terminally ill when the lawsuit was brought,
there was no “realistic danger” that the pregnancy exclusion requirement would directly
injure the woman, rendering her claims “abstract” and “non-justiciable.” Id. at 1063-64;
see also DiNino v. State ex rel. Corton, 684 P.2d 1297 (Wash. 1984) (holding that a
healthy non-pregnant woman had no standing to challenge the pregnancy exclusion).
Memorandum Decision & Order – page 7

These cases are distinguishable in that two of the plaintiffs here were pregnant
when this lawsuit was filed. But more importantly, the Court disagrees with the analysis
in both cases. Women are injured for standing purposes when they draft a directive
without a pregnancy exclusion because they face an immediate credible threat that their
directives will be ignored and that they will receive end-of-life medical treatment to
which they did not consent. Plaintiffs need not “await the consummation of threatened
injury to obtain preventive relief.” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154 (9th Cir.
2000). A credible threat of harm is sufficient to constitute an injury-in-fact. Harris v.
Bd. of Supervisors, Los Angeles County, 366 F.3d 754, 761 (9th Cir. 2004). And because
standing is determined based on the facts “as they exist[ed] at the time the complaint was
filed,” the issue is whether the FAQ – which was on the defendants’ websites when this
lawsuit was filed – constituted a credible threat to plaintiffs. See Jacobs v. Clark County
School Dist., 526 F.3d 419, 425 (9th Cir. 2008).
To find a credible threat here, one need look no further than the DiNino case, cited
by defendants. There, the woman’s physician refused to accept her directive because it
failed to contain the required pregnancy exclusion and directed that life support be
withdrawn regardless of pregnancy; the physician feared being sued if he carried out the
directive’s commands. DiNino. 684 P.2d at 1299. The physician’s response was
reasonable and undoubtedly typical – it was not a rare hypersensitive reaction. Of course,
that was simply a case involving acceptance of the directive. Is there really a credible
threat of a hospital ignoring objections and forcing a comatose pregnant woman onto life
support to buy time to deliver her baby? That is exactly what happened in Muñoz v. John
Memorandum Decision & Order – page 8

Peter Smith Hospital, No. 096-270080-14, (9th Jud. District Tex. Jan. 24, 2014) (as
discussed in Flanagan, Decisions in the Dark: Why Pregnancy Exclusions are
Unconstitutional, 114 NWULR 969, 970 (2020)).
The plaintiffs’ fears are not spun out of thin air, neither can they be described as
“abstract” or “hypothetical.” They are instead a response to a credible threat. The Court
finds that plaintiffs have established that at the time this lawsuit was filed they faced a
credible threat that could be traced to defendants and that could be redressed by a
favorable decision. That is sufficient for standing.
Defendants respond that even if standing existed when the lawsuit was filed, the
controversy was mooted when they removed the FAQ from their websites. But simply
removing the FAQ, without expressing that it was wrong, only mitigates slightly the
threat to plaintiffs that their directives will be ignored – it does not remove the threat.
The FAQ existed for 15 years and was only removed after this lawsuit was filed. As
plaintiffs point out in their reply brief, the State’s wrong interpretation was widely
acknowledged as being the law in Idaho.1 Given its long existence, and the absence of

1

Plaintiffs cite several sources in their briefing. See Reply Brief (Dkt.No. 68) at p. 3: “See, e.g., Elizabeth
Villarreal, Pregnancy and Living Wills: A Behavioral Economics Analysis, 128 Yale L.J. Forum 1052,
1062 (2019) (listing Idaho as a state in which “living wills are invalid for the duration of the pregnancy”);
See also, Kristeena L. Johnson, Note, Forcing Life on the Dead: Why the Pregnancy Exemption Clause of
the Kentucky Living Will Directive Act is Unconstitutional, 100 Ky. L.J. 209, 211 (2011) (citing Idaho as
one of twelve states that “completely stay the effectiveness of a living will or directive in the instance of a
pregnant woman”); Shea Flanagan, Note, Decisions in the Dark: Why “Pregnancy Exclusion” Statutes
are Unconstitutional and Unethical, 114 Nw. U. L. Rev. 969, 1013 (2020) (categorizing Idaho as a state
in which an advance directive is void per se if the individual is pregnant); Hannah Schwager, Note, The
Implications of Exclusion: How Pregnancy Exclusions Deny Women Constitutional Rights, 13 Cardozo
Pub. L. Pol’y & Ethics J. 595, 601-602 (2015) (citing Idaho as belonging to the category of states with the
most restrictive pregnancy exclusions in their advance directive statutes); see also 3 Honoring Choices
Idaho, an initiative supported by the Idaho Department of Health and Welfare, provides resources about

(Continued)
Memorandum Decision & Order – page 9

any affirmative correction, the FAQ becomes “common knowledge” and lives on despite
its removal. The declaratory judgment plaintiffs seek could counter and correct years of
erroneous interpretation. The Court therefore rejects the argument that this action has
been mooted by the removal of the FAQ.
Applicability of Ex parte Young
Defendants argue that this Court lacks jurisdiction over them under the doctrine of
Ex parte Young, 209 U.S. 123, 157 (1908), which requires “some connection” between a
named state officer and enforcement of a challenged state law. The defendants claim that
there is no connection between them and the pregnancy exception because “no defendant
can change the statutory language plaintiffs dislike.” See Defense Brief (Dkt. No. 59-1) at
p. 8.
However, during oral argument, defense counsel candidly pointed out that
defendant Department of Health & Welfare (DHW) has the authority to implement all
portions of the Act – which would include the pregnancy exception – pursuant to Idaho
Code § 39-4514(11). See Transcript (Dkt. No. 70) at p. 30. DHW also has wide
authority to enforce the Act under another statutory provision. See I.C. § 56-1006(3)(j).
Moreover, it is undisputed that defendant Attorney General has the power to enforce the
Act. That office represents all state agencies and is to advise on issues of law and can
step into the shoes of the county attorney. See Idaho Code § 67-1401. This power to

advance care planning. Honoring Choices Idaho includes a Fillable Living Will form on its website which
departs in format from the Model Form. On the form, near the signature line, the following language is
included: “I understand this document cannot be honored if I am pregnant.”

Memorandum Decision & Order – page 10

enforce was enough in Planned Parenthood of Idaho v. Wasden, 376 F.3d 908 (9th Cir.
2004) to overcome Ex parte Young objections:
[T]he attorney general may in effect deputize himself (or be deputized by
the governor) to stand in the role of a county prosecutor, and in that role
exercise the same power to enforce the statute the prosecutor would have.
That power demonstrates the requisite causal connection for standing
purposes. An injunction against the attorney general could redress
plaintiffs’ alleged injuries . . . .
Id. at 920. The reasoning applies with equal strength to the DHW. And the form at issue
containing the pregnancy exclusion is currently on the website of the Secretary of State
rendering that defendant also amenable to the jurisdiction of this Court.
Interpretation of the Statute
The Court will turn next to an interpretation of the Act. The issue boils down to
whether the Act’s language (1) requires the pregnancy exclusion; (2) makes optional the
pregnancy exclusion; or (3) is ambiguous as to whether the pregnancy exclusion is
required or optional.
The opening section – § 4509 – makes clear that the form following § 4510(1)
containing the pregnancy exclusion is only a suggested format and not the exclusive
format for a directive: “It is not the intent of the legislature that the procedures described
in [§ 4509 to § 4515] are the only effective means” of communicating a person’s wishes
for end-of-life care. See Idaho Code § 39-4509(3). It 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 . . . .” Id. Indeed, “[a]ny authentic expression of
a person’s wishes with respect to health care should be honored.” Id. The definition of
Memorandum Decision & Order – page 11

an “advance directive” in Idaho Code § 39-4502(8) also signals that no specific language
will be required to validate a directive: “An . . . advance directive . . . is a document that
substantially meets the requirements of section 39-4510(1) . . . or is another document
which represents a competent person’s authentic expression of such person’s wishes
concerning his or her health care.” Finally, the same liberal interpretation is given to
directives that predate the Act or were prepared in other states: “This section shall be
liberally construed to give the effect to any authentic expression of the person’s prior
wishes or directives concerning his or her health care.” See Idaho Code § 39-4514(7).
Under this language of § 4509, the only required elements for a directive are
competency and authenticity. The woman preparing the directive must be competent and
her directive must be an authentic expression of her wishes. That section requires no
specific language and demands the inclusion of no specific clauses; it gives strong
support to defendants’ current, but belated, interpretation that a woman’s directive
without a pregnancy exclusion is not invalid for that reason.
The next section – §4510(1) – does nothing to change this interpretation. It states
that “any competent person” can execute a directive that “shall be in substantially the
following form, [containing the pregnancy exception] or in another form that contains the
elements set forth in this chapter.” (emphasis added). What are those elements? They
are the competency and authenticity elements just discussed, set forth in §4509 – nothing
more. The use of the disjunctive “or” means that the form language is optional and does
not establish the exclusive format for a valid directive.

Memorandum Decision & Order – page 12

The Court therefore finds, as a matter of law, that the language of the Act is clear
and unambiguous that a directive need not include a pregnancy exclusion to be valid. But
this does not end the inquiry. For fifteen years, the defendants promoted on their
websites their interpretation that the pregnancy exclusion was required and that any
directive to the contrary would be ignored. The defendants are essentially the State of
Idaho for all practical purposes. Although their interpretation was wrong, it had the
weight of the State behind it. The State did not withdraw its promotion of that
interpretation until after this lawsuit was filed and has still not affirmatively explained
that its interpretation was wrong. Indeed, as discussed above, this wrong interpretation
was widely accepted as the law in Idaho and the length of that error ensures that it enters
the realm of common knowledge and lives on despite its removal from the websites.
Despite the clear language of the Act, the State’s public promotion for fifteen years of its
interpretation that the pregnancy exclusion was required renders the Act vague and
ambiguous under these circumstances.
Constitutional Analysis
Given the ambiguity just identified, there is 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. Thus, the Court must proceed to the
merits of the claim that requiring a pregnancy exclusion in a woman’s advance directive
is unconstitutional.
Under the pregnancy exclusion, a pregnant woman about to die, whose advance
directive dictated the withdrawal of all life support, would nevertheless have life support
Memorandum Decision & Order – page 13

forced upon her until her baby could be delivered. This violates the constitutional right
of a competent person to refuse unwanted lifesaving medical treatment. Cruzan, 497
U.S. at 269. In that case, the Supreme Court decided that a competent person has a
constitutionally protected liberty interest in making their own health care decisions,
including refusing unwanted lifesaving medical treatment. Id. at 279 (stating that “for the
purposes of this case, we assume that the United States Constitution would grant a
competent person a constitutionally protected right to refuse lifesaving hydration and
nutrition”). In her concurring opinion, Justice O’Connor stated that
[r]equiring a competent adult to endure such procedures against her will
burdens the patient’s liberty, dignity, and freedom to determine the course
of her own treatment. Accordingly, the liberty guaranteed by the Due
Process Clause must protect, if it protects anything, an individual’s deeply
personal decision to reject medical treatment, including the artificial
delivery of food and water.
Id. at 289 (O’Connor, J. in concurrence). Women do not lose these rights because they
are pregnant when they fall into a coma: “Courts do not compel one person to permit a
significant intrusion upon his or her bodily integrity for the benefit of another person’s
health.” In re A.C., 573 A.2d 1235, 1243-44 (D.C.Ct.App. 1990).2 Certainly the state

2

This blanket statement may not be universally true under all circumstances. For example,
consider a case where a pregnant woman past her due date falls into a persistent vegetative state after an
accident. See Flanagan, Decisions in the Dark, supra at n. 184. In this exceptional circumstance, would a
state be justified in removing a full-term fetus through a cesarean section procedure immediately prior to
removing the mother’s life-support? Is that the exceptional circumstance when a state’s interest in
potential human life overrides a woman’s right to refuse lifesaving medical treatment? See Elizabeth A.
Marcuccio & Joseph P. McCollum, Advance Directives Containing Pregnancy Exclusions: Are They
Constitutional?, 34 N.E. J. L. STUD. 22, 34-35 (2015) (noting that the fundamental right to refuse
unwanted medical treatment is not absolute and can potentially be less compelling than the state's interest
in potential human life). These are difficult questions that do not need to be answered in this decision and
the Court expresses no opinion thereon.
Memorandum Decision & Order – page 14

has an interest in ensuring that a woman carries her fetus to term. See Planned
Parenthood v. Casey, 505 U.S. 833 (1992). But Casey and its progeny only limit the
choices of women who seek to terminate a pregnancy, while Idaho’s pregnancy exclusion
completely denies the choices of women, regardless of the viability of the fetus, and
forces medical treatment on them. Moreover, those who seek to enforce “a pregnant
woman’s advance directive are not seeking an abortion of the fetus, but rather are seeking
the proper administration of that woman’s choice of her own end-of-life care.” Flanagan,
supra at 988. While abortion restrictions “stop women from getting the health care that
they want or need, pregnancy exceptions forcibly subject women to health care that they
neither require nor desire.” Nikolas Youngsmith, The Muddled Milieu of Pregnancy
Exceptions and Abortion Restrictions, 49 Columbia Human Rights Law Review 415, 419
(2018). For this reason, pregnancy exclusion laws “represent an unprecedented and
extraordinary step beyond abortion restrictions.” Flanagan, supra, at 989. Because the
Idaho pregnancy exclusion goes far beyond Casey, the abortion line of cases cannot save
it.
The pregnancy exclusion also violates the First Amendment, which prevents the
Government from compelling individuals to express certain views, just as it prohibits
impermissible Government censorship of speech. U.S v. United Foods, Inc., 533 U.S.
405, 410 (2001). Content-based speech restrictions that “target speech based on its
communicative content” are presumed to be unconstitutional and are only acceptable if
narrowly tailored in pursuit of a compelling interest. Nat'l Inst. of Family & Life
Advocates v. Becerra, 138 S. Ct. 2361, 2365 (2018). There is nothing “narrowly
Memorandum Decision & Order – page 15

tailored” about the pregnancy exclusion here. It compels women to express the State’s
message in their directive and hence violates the First Amendment. The ambiguity
discussed above caused by the State’s long-held wrong interpretation created a chill on
protected expression – confronted with it, a woman would likely either include the
Government’s message (the pregnancy exclusion) or decline to express her own contrary
message. The pregnancy exclusion violates the First Amendment.
Conclusion
In conclusion, the Court finds that (1) the Act itself does not require advance
directives to contain the pregnancy exclusion; (2) the defendants’ FAQ created an
ambiguity by asserting for 15 years that if a pregnant woman became incapacitated and
her advance directive did not include the pregnancy exclusion, her directive would be
ignored; (3) while the defendants removed that FAQ after this lawsuit was filed they have
never affirmatively corrected their wrong interpretation (beyond their stipulations in this
lawsuit); and (4) the defendants’ interpretation that the pregnancy exclusion must be
contained in a woman’s advance directive to make it valid violated the First, Fifth, and
Fourteenth Amendments.
These findings lead to two remedial measures. First, the Court will grant in part
plaintiffs’ motion for summary judgment to the extent it seeks a declaratory judgment
that the pregnancy exclusion – as interpreted by the defendants for 15 years – violates
plaintiffs’ constitutional rights. Second, the Court will grant in part the defendants’
motion for summary judgment to the extent it seeks a ruling that the Act does not require
the pregnancy exclusion language in a woman’s advance directive, and that the
Memorandum Decision & Order – page 16

defendants’ own 15 year-long interpretation to the contrary was in error. The summary
judgment motions of both parties will be denied in all other respects. Because these
rulings resolve all issues, the Court will enter a separate Judgment.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for summary
judgment filed by plaintiffs (docket no. 62) is GRANTED IN PART AND DENIED IN
PART. It is granted to the extent it seeks a declaratory judgment that requiring an
incapacitated woman’s advance directive to contain a pregnancy exclusion (as set forth in
the form following Idaho Code § 39-4510(1)) is a violation of a woman’s First, Fifth, and
Fourteenth Amendment rights. Their motion for summary judgment is denied in all other
respects.
IT IS FURTHER ORDERED, that the motion for summary judgment filed by
defendants (docket no. 59) is GRANTED IN PART AND DENIED IN PART. It is
granted to the extent it seeks a ruling that Idaho’s Medical Consent and Natural Death
Act does not require the pregnancy exclusion (as set forth in the form following Idaho
Code § 39-4510(1)) to be contained in a woman’s advance directive. Their motion for
summary judgment is denied in all other respects.

Memorandum Decision & Order – page 17

DATED: April 5, 2021

_________________________
B. Lynn Winmill
U.S. District Court Judge

Memorandum Decision & Order – page 18