The Atlantic: Georgia's Bad Abortion Law Not To Blame For Braindead Woman Being Forced To Incubate Fetus
Except for how it is.
In February, Adriana Smith went into the emergency room with severe headaches and, as a registered nurse, she knew “enough to know something was wrong.” She was sent home without a CT scan, without anything. The next morning, her boyfriend found her gasping for air and gurgling on blood. He took her back to the hospital, where they finally did a CT scan and discovered multiple blood clots in her brain — but it was too late and she was declared brain-dead as they were preparing her for surgery.
Because she was pregnant, the hospital told her mother, April Newkirk, that they would have to keep her alive via life support for the next 21 weeks (which would cost their family, at minimum, $1.6 million). Neither Newkirk, Smith’s boyfriend, nor any other interested parties were given any choice about this and were told, directly, that they had to do this in order to comply with Georgia’s abortion laws. They were told that, legally, there were no other options.
Smith’s son, named Chance, was born this weekend, weighing 1 pound, 13 ounces. He is in the neonatal intensive care unit. We wish him and his family every bit of luck they can get.
Do Abortion Bans Let You Kidnap A Dead Person?
Ever since Roe v. Wade was overturned, we’ve seen horrific and devastating cases in states that have instituted abortion bans. Instead of taking responsibility, or even saying, “Yes, these things will happen but it’s the price we’re willing to pay for the sheer joy of forcing people to give birth against their will,” those who oppose abortion rights have opted for gaslighting.
You see, it’s not that the laws are bad, but that they have been misunderstood. Sometimes because doctors and hospital lawyers are too stupid to understand their nuances, or because abortion rights supporters have nefariously worked to cloud understanding of them. In the latter scenario, we are accused of spreading misinformation about these bans, about when people experiencing pregnancy complications can seek treatment and when doctors can perform an abortion to save someone’s life or to treat a miscarriage; we are spreading this misinformation so that these horrible things happen and become publicized and people don’t want to ban abortion anymore.
In reality, these situations are just not as cut and dried as forced birthers want to pretend they are, and doctors, for the most part, are going to err on the side of caution when the consequence of performing an abortion in a scenario that the state does not believe was life-threatening enough is that they could lose their license or even go to prison.
It’s one thing for the National Review or other right-wing publications to push this nonsense, but now we’ve got The Atlantic doing it. Isn’t that fun?
In an article published on Monday, Atlantic staff writer and self-proclaimed “pro-life liberal” Elizabeth Bruenig attempted to make a similar claim about Adriana Smith’s case.
Despite the fact that Smith’s doctors explicitly told her family that Georgia’s “Heartbeat Bill” was the reason they could not just let her die with dignity, Bruenig contends that this case is not necessarily about Georgia’s bad abortion laws, but rather about ethical (but not legal!) issues related to the treatment of permanently incapacitated people.
To the degree that Georgia’s broad abortion ban influenced Emory University Hospital’s decision not to offer Smith’s family any options with respect to her care, the case is indeed about abortion. But the ethical questions involved in Smith’s story are only tangentially related to abortion itself and have more to do with deciding who ought to make decisions for permanently incapacitated people—an altogether different but equally thorny subject that concerns a related but distinct axis of pro-life and pro-choice conflict. Acknowledging this does not require one to agree that the hospital was correct to proceed with life support without consulting Smith’s family, nor does it imply that simple answers exist as to how medical professionals should handle cases like Smith’s.
But simple answers do exist — because if this were not the law, it would be kidnapping. Hospitals are not allowed to just keep you against your will or your family’s will (if you are, you know, dead), and a long-term involuntary stay for someone deemed to be a danger to themselves or others typically requires a court order.
If this were remotely the issue, we would regularly hear about people being kept on life support against the wishes of their family, if only because keeping someone on life support is incredibly expensive and very few families could afford that. It can cost up to $7,500 per day, and given that 63 percent of American workers cannot afford a $500 surprise emergency expense, one would expect that kind of thing to come up every so often.
We do not, actually, require further clarification on “who ought to make decisions for permanently incapacitated people.” It’s themselves if they have a living will, and if not, their next-of-kin or whoever has been chosen to represent their interests. Even in the Terri Schiavo case, the hospital’s wishes did not enter the equation.
“Pro-life” people may well believe, personally, that people should be kept alive forever on machines whenever possible, or feel that there is an ethical question there, but there’s not a legal one.
At any rate, from the pro-life vantage point, Smith’s story is not solely about abortion; it’s about preserving Smith’s life, too, as principled pro-life beliefs apply not only to fetuses but to the incapacitated as well. Like 36 other states, Georgia defines death according to a version of the 1981 Uniform Determination of Death Act, which considers anyone with “irreversible cessation of all functions of the entire brain, including the brain stem,” dead—though many pro-life activists take issue with this definition, arguing that brain-dead people are still alive in a meaningful sense. Charles Camosy, a bioethics professor at the Creighton School of Medicine, told me last month that “Adriana requires technology to live—but that’s also true of someone who needs an artificial heart, an ECMO machine, or kidney dialysis. Dependence on machines does not make one dead.”
Charles Camosy, bioethics professor at the Creighton School of Medicine, is welcome to believe that in his heart, but it’s not the law. Additionally, Emory is not claiming that this or any other “principled pro-life beliefs” (like, so often, being pro-death penalty?) entered the equation at all. They have been very clear that they kept Smith alive so as not to run afoul of Georgia’s abortion law.
This question of what constitutes death and the attendant matter of who ought to make decisions for brain-dead people are really at the center of Smith’s story. Developing a theory of what would or would not have justified allowing Smith to die entirely isn’t possible, because the details of Smith’s case, such as her actual diagnosis and condition, are unknown to those outside the situation. Newkirk has not shared much detail about Smith’s medical crisis, nor should she be expected to. This uncertainty haunts the entire debate about Smith’s condition, shrouding much of it in mystery.
Except for how it doesn’t. Smith was taken off of life support on Tuesday. Had that been an issue,
What is clear is that mapping abortion rights onto her case is difficult, because Smith herself is likely dead in the eyes of the law, a judgment that seems reasonable enough to me—but that means there can be no legal weighing of maternal interests against those of the fetus, because the mother no longer has any interests. Nor can there be a violation of Smith’s right to choose, because she is no longer making choices.
Let’s try that again, with a twist.
What is clear is that mapping rape laws onto her case is difficult, because Smith herself is likely dead in the eyes of the law, a judgment that seems reasonable enough to me—but that means there can be no legal weighing of her interests against those of the man having sex with her dead body, because the she no longer has any interests. Nor can there be a violation of Smith’s right to choose who she has sex with, because she is no longer making choices.
Necrophilia, for the record, is a felony in Georgia, and either a misdemeanor or a felony in all but five states. I suppose one could make a philosophical argument that it is a victimless crime, but not only would most of us say that we really do not want someone to have sex with our dead bodies after we die, it would not be relevant to the law.
Bruenig, as I previously mentioned, is far from the first anti-choicer to try to shift the blame for this and other tragedies away from abortion bans. She even cites some of their arguments in the piece.
In response to the outrage over Smith’s case, some pro-life thinkers have questioned whether the abortion ban was salient in the hospital’s decision at all. A spokeswoman for [Georgia Attorney General Chris] Carr’s office said late last month that “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.” A representative of Georgia’s state House, meanwhile, told The Washington Post that Georgia’s abortion ban “is completely irrelevant” to Smith’s situation, adding that “any implication otherwise is just another gross mischaracterization of the intent of this legislation by liberal media outlets and left-wing activists.” Some pro-life advocates proposed that the law Smith’s doctors had either cited or meant to cite in their conversation with Newkirk about their legal obligations was not the LIFE Act but rather a more obscure law relating to care for patients with advance health-care directives, as well as a 1986 trial-court ruling mandating that another brain-dead pregnant woman be kept alive in a similar situation, though Smith had no advance directive and the 1986 case was not precedential.
It feels important to note here that Attorney General Carr, himself, has not been forthcoming about whether or not the hospital is legally required to keep Smith on life support — and, as Bruenig notes, has not even responded to a letter from state Senator Nabilah Islam Parkes asking for clarification on the matter.
Indeed, as much as these “pro-life thinkers” (gag) complain that cases like Smith’s have nothing to do with their precious bans, they’re clearly not out here pushing prosecutors like Carr to come out and say, directly, “No, we will not prosecute you if you take this woman off life support,” or to tell hospitals they can intervene in situations where a woman is not quite at death’s door without worrying that they will end up in prison.
This case, whether forced birthers like it or not, is absolutely about Georgia’s abortion ban. It’s not about “pro-lifers” and their special moral beliefs that braindead persons ought to be kept on life support forever, it’s not about who makes decisions for incapacitated people, and it’s not some kooky misunderstanding of what these laws are intended to do.
It is understandable that Bruenig wants this to be about something else other than Georgia’s terrible abortion ban. But had the law not existed, there is no question that Adriana Smith’s family would have been asked what they wanted to do, what they thought she would have wanted, whether they wanted to pull the plug or keep her on life support for 23 more weeks until she gave birth. It’s not an ethical debate, it’s a legal one that directly affects the lives of Georgia citizens.
Ethics, clearly, are not even on the table.
PREVIOUSLY ON WONKETTE!
"Smith’s son, named Chance, was born this weekend, weighing 1 pound, 13 ounces. He is in the neonatal intensive care unit. We wish him and his family every bit of luck they can get.
I remember when this story first got coverage, I saw pro-forced birthers insisting that, if Smith's family couldn't or wouldn't care for the child, surely someone would step up to adopt.
I am *certain* that in an office somewhere in the Peachtree State, there is an entire stack of applications to take care of Chance for the rest of his life, with checks attached to cover the medical costs already incurred. Right? Right?
***Adriana requires technology to live—but that’s also true of someone who needs an artificial heart, an ECMO machine, or kidney dialysis. Dependence on machines does not make one dead.”***
Holy fuck lady, she's not incapacitated -- she's fucking brain dead. Unlike the examples you list, *nothing* performs the functions of the organ in question. Keeping a brain dead person on life support doesn't mean she's functional in every other respect -- she's not. This is fucking ghoulish gaslighting, and shame on The Atlantic for thinking this line of argument is worth anyone's time.