I am a 2L at LSU Law and am currently writing a paper on why laws such as HB 348, which automatically invalidate a woman’s advance directive due to pregnancy without any regard to whether the fetus is viable or not, are unconstitutional.

I strongly oppose this bill but believe it can be easily fixed. The Supreme Court held in Casey v. Planned Parenthood that the state’s interest in fetal life increases at the point of viability allowing the state to ban abortions at this point. However, until viability, the state cannot ban abortions and cannot impose restrictions that would create an undue burden on women.

In that same case, the Court held that requiring a minor to get consent from both parents would be an undue burden. The state could require one parent’s consent but both would be an undue burden. If requiring a minor to obtain consent from both parents is an undue burden, is it really debatable that requiring a woman to remain on life support, refusing her express wishes to the contrary, would not constitute an undue burden?

Furthermore, the state is basically banning abortions pre-viability for incompetent women. What is the basis for distinguishing between competent and incompetent women? I can find no legitimate purpose for this distinction, and no court has held that an incompetent does not have the fundamental right to privacy. In fact, many courts have held to the contrary.

My solution for bills such as these is to include the requirement of fetal viability for the advance directive to be invalidated. Once the fetus is viable, the state can ban abortions, and therefore, this standard would allow the state to do so while abiding by the Supreme Court’s interpretation of the right to privacy. Otherwise, a woman who is potentially 1 week pregnant could be forced to remain in life support against her will to serve as an incubator for a child while a competent woman at the same stage in pregnancy would be able to exercise her right to an abortion.

By Julie Faulk