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In the case of a pregnant and brain-dead patient at Emory, answers are not clear cut
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The case of Adriana Smith, a pregnant patient being kept on life support at Atlanta’s Emory University Hospital, is raising ethical questions nationwide about whether autonomy is guaranteed under legislation that limits legal abortions.
It also resulted in a political firestorm.
On one side of the aisle, Smith’s case is being raised as an argument against Georgia’s abortion law, House Bill 481, also known as the LIFE Act.
“I believe that, absent further clarity and reform to the law, cruelty like this will continue to be inflicted upon my constituents,” Democratic U.S. Rep. Nikema Williams wrote in a statement put out this week.
Another statement from Democratic state Rep. Kim Schofield, released in partnership with Reps. Viola Davis and Sandra Scott, blames the state for turning Smith into “an incubator against her will.”
Meanwhile, state Republicans have been largely silent. There has been no comment from Gov. Brian Kemp’s office.
State Sen. Ed Setzler, who sponsored Georgia’s abortion law in the House in 2019, told The Associated Press that he agrees with how Smith’s case has been managed.
“I think this is an unusual circumstance, but I think it highlights the value of innocent human life,” he said. “I think the hospital is acting appropriately.”
Left largely in the middle is Smith’s family, which has made little public comment.
On a webpage seeking donations — which has garnered almost $97,000 at the time of publishing — Smith’s mother April Newkirk writes the family was “given no choice” regarding the hospital’s decision keep Smith on life support around two months into her pregnancy, after clots in her brain caused irreparable damage. Newkirk expressed frustration over that lack of choice in an interview with an Atlanta TV station a week ago.
She recently told reporters that they’re hoping the baby can be delivered safely in August. Smith is now about 22 weeks pregnant.
Newkirk has not responded to GPB’s requests to get in touch. A statement attributed to Emory University Hospital said treatment at the hospital is based on "consensus from clinical experts, medical literature, and legal guidance in compliance with Georgia's abortion laws and all other applicable laws."
So what does the law say, and is it clear?
Georgia’s abortion law makes it illegal to terminate a pregnancy after about six weeks of gestation, or when an ultrasound can detect fetal cardiac activity.
The law does that in part by including a fetus in the definition of a “natural person” starting at around six weeks of pregnancy. Past that point, the law makes certain exceptions for abortions, including if a physician determines there’s a “medical emergency,” or that a pregnancy is “medically futile.”
Questions over those exceptions have been raised since the law's passage.
This week, in response to Smith’s case, Georgia Attorney General Chris Carr said in a statement that nothing in HB 481 says that removing a patient from life support counts as an action “with the purpose to terminate a pregnancy.”
"Our prayers go out to the family of Adriana Smith during this difficult time," Carr’s statement reads. "There is nothing in the LIFE Act that requires medical professionals to keep a woman on life support after brain death. Removing life support is not an action 'with the purpose to terminate a pregnancy.'”
But Dana Sussman, senior vice president at the nonprofit coalition Pregnancy Justice, said it’s not enough for this legislative language to be defined sporadically.
“There's confusion in these laws and women will suffer,” Sussman said. “We're not able to get a clarifying statement from an attorney general every time, and we shouldn't have to rely on a clarifying statement from an attorney general to have bodily autonomy.”
Another snag in maintaining autonomy, Sussman said, can come in the form of a piece of paperwork signed by people in health care facilities, called an advance directive, that is supposed to clearly define the medical decisions of a patient should they become incapacitated.
Under Georgia’s version, unless the patient provides written permission against it, doctors are supposed to provide “life-sustaining procedures” if a fetus is determined to be viable, even if the pregnant person is no longer able to birth them.
Ten states consider pregnancy a condition that overrides advance directives completely, including Texas, where in 2013, the family of a brain-dead woman who was kept alive because of her pregnancy entered into a legal battle over her treatment, and won.
Sussman notes it’s not clear what Adriana Smith would have wanted.
“But I think we have to confront this,” she said. “Because this is yet another iteration of the harms and the damage when we give more rights to embryos and fetuses than we do to women and pregnant people."
Policy like Georgia’s law that includes so-called fetal personhood language, she said, is also what results in situations of pregnancy criminalization, such as in the arrest of a woman from Tift County after she experienced a miscarriage, a case where the charges were ultimately dropped.
Martha Zoller, founding member and current board member of the Georgia Life Alliance, an organization that opposes abortion, argues Smith’s case should be kept separate from the LIFE Act and agrees with the attorney general’s take.
“We don't see this as a heartbeat bill case,” Zoller said. “It's a tragedy no matter how you slice it. But it sounds to me like the family was left out of the decision-making, and that was wrong.”
Yet, Zoller said, she thinks that as result of increased legal interference, “doctors are not being allowed to figure out what to do” in many cases. She said the GLA stands in their support of the LIFE Act.
Smith’s case is not a one-off
Since Roe v. Wade was overturned by the U.S. Supreme Court, medical providers in Georgia have reported delaying care in cases where emergency abortions would have normally been given to address pregnancy-related complications.
According to a survey of 38 Georgia-based OB-GYNs published by Georgia U.S. Sen. Jon Ossoff’s office, the majority said that the state’s abortion law puts women’s health “at greater risk,” with just over a dozen sharing specific examples of where confusion over the law contributed to medical emergencies.
Those examples include cases where women experienced excessive bleeding from miscarriages past six weeks of pregnancy, or had risk factors like hypertension, heart conditions or autoimmune disorders that made pregnancy dangerous, but not enough to be considered an exception under the law by providers.
“With this law now in effect, when it comes to things like high-risk pregnancies and medical emergencies, we're often trying to figure out, 'OK, how sick is sick enough?'” said Dr. Nisha Verma, a practicing physician and abortion provider who contributed to the survey.
Verma, who also serves as a policy and advocacy advisor at the national American College of Obstetricians and Gynecologists (ACOG), said the report is just a snippet of what she believes is a “widespread” sentiment — that strict abortion legislation in Georgia and more than a dozen other states limits doctor’s ability to make “evidence-based” decisions about their patient’s care, because there’s a fear of legal consequences if they get it wrong.
- RELATED: Delay in care can be deadly in pregnancy. Here's one mother's experience with Georgia's abortion law
An ongoing national study out of the University of California San Francisco aims to document clinician experiences has found similar evidence of “distress."
A spokesperson for ACOG said it does not comment on specific cases in response to questions about Adriana Smith. Verma said regarding Ossoff’s report, it’s not surprising that we’re seeing a “variation in practice” different than before Georgia’s law was in effect.
“Clinicians are confused and scared,” said Sara Redd, assistant professor at Emory University’s Rollins School of Public Health.
And already, patients are affected disproportionately, she said.
“People who are already experiencing structural barriers to accessing healthcare or are experiencing oppression,” Redd said. Georgia has one of the highest maternal mortality rates in the country, with Black women experiencing pregnant-related deaths at double the rate compared to White women.
Sussman of the Pregnancy Justice coalition said Smith, a Black woman, is an example of the human toll of these disparities. Smith will likely be included in the annual analysis of Georgia’s Maternal Mortality Review Committee on account of her pregnancy.
“We don't know all the details, but this sounds like a situation where she needed to get care,” Sussman said. “She experienced a medical emergency that may have been preventable. And now ... her family is in this situation where they cannot grieve her death properly.”
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