ATLANTA (AP) — The case of a pregnant woman in Georgia who was declared brain dead and has been kept on life support for three months has given rise to complicated questions about abortion law and whether a fetus is a person.
Adriana Smith, a 30-year-old nurse and mother, was about two months pregnant on Feb. 19 when she was declared brain dead, according to an online fundraising page started by her mother. Doctors said Georgia’s strict anti-abortion law requires that she remain on life support until the fetus has developed enough to be delivered, her mother wrote.
The law, one of a wave of measures enacted in conservative states after the Supreme Court in 2022, restricts abortion once cardiac activity is detected and gives personhood rights to a fetus.
Smith’s mother says it has left her family without a say in a difficult situation, and with her due date still months away, the family is left wondering whether the baby will be born with disabilities or can even survive. Some activists, many of them Black women like Smith, say it raises issues of racial equity.
What does the law say?
Emory Healthcare, which runs the hospital, has not explained how doctors decided to keep Smith on life support except to say in a statement they considered “Georgia’s abortion laws and all other applicable laws.”
The state adopted a law in 2019 to ban abortion after cardiac activity can be detected, about six weeks into pregnancy, that after Roe v. Wade was overturned.
That law does not explicitly address Smith’s situation, but allows abortion to preserve the life or physical health of the pregnant woman. Three other states have similar bans that kick in around the six-week mark and 12 bar abortion at all stages of pregnancy.
David S. Cohen, a professor at Drexel University’s Thomas R. Kline School of Law in Philadelphia, said the hospital might be most concerned about part of the law that gives fetuses legal rights as “members of the species Homo sapiens.”
Cohen said Emory may therefore consider Smith and the fetus as two patients and that once Smith was on life support, they had a legal obligation to keep the fetus alive, even after she died.
“These are the kind of cases that law professors have been talking about for a long time when they talk about fetal personhood,” he said.
State Rep. Nabilah Islam Parkes, an Atlanta-area Democrat, said Friday that she sent a letter to state Attorney General Chris Carr asking for a legal opinion on how Georgia’s abortion law applies when a pregnant woman is brain dead.
Personhood divide within anti-abortion movement
Anti-abortion groups are divided over whether they should support , which are on the books in at least 17 states, according to the advocacy group Pregnancy Justice.
Some argue that fertilized eggs, embryos and fetuses should be considered people with the same rights as those already born. This personhood concept seeks to give them rights under the 14th Amendment to the U.S. Constitution, which says a state can’t “deprive any person of life, liberty, or property, without due process or law; nor deny any person within its jurisdiction the equal protection of the laws.”
Some saw personhood as politically impractical, especially after personhood amendments to state constitutions were rejected by voters in Colorado, Mississippi and North Dakota between 2008 and 2014. Those who steered away sought laws and restrictions on abortion that stopped short of personhood, although they were often informed by the concept.
Personhood proponents argue this lacks moral clarity. Some personhood proponents have been sidelined in national anti-abortion groups; the National Right to Life Committee cut ties with its Georgia Right to Life affiliate in 2014 after the state wing opposed bills that restricted abortion but allowed exceptions for rape and incest.
Unequal access to care for Black women
The Associated Press has not been able to reach Smith’s mother, April Newkirk. But Newkirk told Atlanta TV station WXIA that her daughter went to a hospital complaining of headaches and was given medication and released. Then, her boyfriend awoke to her gasping for air and called 911. Emory University Hospital determined she had blood clots in her brain and she was declared brain dead.
It’s not clear what Smith said when she went to the hospital or whether the care she was given was standard for her symptoms. But Black women often complain their pain isn’t taken seriously, and an found that health outcomes for Black women are worse because of circumstances linked to racism and unequal access to care.
Monica Simpson, executive director of SisterSong, the lead plaintiff in a Georgia’s abortion law, said: “Black women must be trusted when it comes to our health care decisions.”
“Like so many Black women, Adriana spoke up for herself. She expressed what she felt in her body, and as a health care provider, she knew how to navigate the medical system,” Simpson said, noting that by the time Smith was diagnosed “it was already too late.”
It’s unclear whether the clots in Smith’s brain were related to her pregnancy.
But her situation is undoubtedly alarming for those seeking solutions to . According to the Centers for Disease Control and Prevention, Black women had a mortality rate of 50.3 deaths per 100,000 live births in 2023. That’s more than three times the rate for white women, and it is higher than the rates for Hispanic and Asian women.
What is Smith’s current situation?
While Smith is on a ventilator and likely other life-support devices, being declared brain dead means she is dead.
Some experts refer to “life support” as “maintenance measures,” “organ support” or “somatic support,” which relates to the body as distinct from the mind.
Emory has not made public what is being done to allow Smith’s fetus to continue to develop.
In another case in Florida, doctors successfully delivered the baby of a 31-year-old woman who was declared brain dead while 22 weeks pregnant, but not without weeks of sustained monitoring, testing and medical care. The woman’s family wanted to keep the fetus, physicians with the University of Florida College of Medicine said in a 2023 paper.
On her first day of admission, doctors administered hormones to raise her blood pressure and placed a feeding tube. After she was transferred to an intensive care unit, an obstetric nurse stayed by her bedside continuously to monitor the fetus’ heart rate and movements.
She was on a ventilator, regularly received steroids and hormones, and needed multiple antibiotics to treat pneumonia. Her medical team encompassed multiple specialties: obstetrics, neonatology, radiology and endocrinology.
Doctors performed surgery to remove the fetus at 33 weeks when its heart rate fell, and the baby appeared to be in good health at birth.
“We don’t have great science to guide clinical decision making in these cases,” said Dr. Kavita Arora, an obstetrician and gynecologist in North Carolina who raised concerns about the effect of prolonged ventilator use on a fetus. “There simply aren’t a lot of cases like this.”
The 2023 paper warned that “costs should not be underestimated.”
It is not clear whether Smith, whose mother said she was a nurse at Emory University Hospital, had health insurance. But JoAnn Volk, a professor, founder and co-director of the Center on Health Insurance Reforms at Georgetown University, said that that for people with health insurance, it’s generally up to the insurer to determine whether care is medically necessary and covered under the plan.
While it is unclear how much it will cost to keep Smith on life support until the fetus can be delivered, or who will be responsible for that cost, her mother’s GoFundMe page mentions Smith’s 7-year-old son and notes that the baby could have significant disabilities as it aims to raise $275,000.
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Mulvihill reported from Cherry Hill, New Jersey. Associated Press reporter Jeff Amy in Atlanta contributed.
