Taking brain-dead Georgia woman off life support won’t violate abortion law

Or does the harm to Smith’s dignity, her family’s self-described “torture” and the cultural message that women are nothing but vessels outweigh that?

These are the issues Georgians would debate if the state Legislature introduced a new law requiring brain-dead pregnant women to continue gestating their embryos and fetuses. If such a law were passed, litigation to determine whether it was constitutionally permissible would follow.

However, today’s law and medical ethics require the hospital to follow Smith’s family’s wishes if they want to stop medical interventions that cannot save her.

Ending life support would not meet threshold of abortion ‘intent’

Credit: AP

Credit: AP

Georgia’s law criminalizing abortion provision defines abortion as a specific type of action combined with the specific goal of ending a pregnancy. (“Abortion means the act of using, prescribing, or administering any instrument, substance, device, or other means with the purpose to terminate a pregnancy…”)

Neither the act nor the intent requirement is met in this case. Therefore, although removing Smith’s dead body from life support will end the cardiac activity of both her body and her fetus’, doing so does not fit the statute’s definition of an abortion.

Credit: John H. White

Credit: John H. White

Georgia’s law requires an “act of commission,” which is an affirmative action that interrupts nature’s course, like performing an abortion procedure. In contrast, removing medical technology is an “act of omission” — an act that allows nature to take or resume its course. The U.S. Supreme Court endorsed this distinction for the constitutional law governing medical practice in 1990 and again in 1997.

Court decisions show why this case should be simple

The court first ruled that patients and families who refuse life-sustaining medical technologies are not committing suicide or murder because although removing a ventilator obviously involves a physical action, it is an act of omission — stopping (“omitting”) technology and letting natural death occur.

Later the court ruled that people with terminal diagnoses do not have a constitutional right to assisted suicide, in part because prescribing medicine to prematurely end a patient’s life is always an act of commission.

The fact that Smith is brain-dead is part of what makes this case simple. The practice of stopping ventilators and feeding tubes in this circumstance is so well accepted that if the tables were turned and Smith’s family wanted to continue treatment for someone who was not pregnant, after a short delay for discussions and goodbyes, the hospital would unilaterally withdraw treatment against the family’s wishes.

The intent in withdrawing treatment in Smith’s case is not to end a pregnancy. The intent behind this protocol is to respect both the person who has died and the corpse that remains, and to conserve medical resources.

Follow the family’s wishes in Smith’s treatment

Georgia’s law requiring patient or family consent for organ donation provides another analogy. It would be illegal for Emory hospital to do a quick operation to remove Smith’s kidney against her family’s wishes, even if that organ she no longer needs was sure to save a child’s life. So, it couldn’t possibly be legal for the hospital to commandeer Smith’s entire body for months for the benefit of a fetus without explicit legislative permission.

Georgia’s stiff penalty for conviction of “criminal abortion” is one to 10 years of imprisonment, so one can sympathize with hospitals wanting to proceed cautiously even when the legal analysis is clear. Yet the fact there is no report of Emory seeking a court order requesting permission to follow standard brain death protocols and the Smith family’s wishes — which would also provide protection from any misguided abortion prosecutions — is baffling.

Hospitals charged with protecting patients and following the law have a responsibility to move beyond cultural debates and liability concerns to careful legal analysis. In this case that means following the wishes of Smith’s family and letting her rest in peace.

Katie Watson is a lawyer, bioethicist and professor at Northwestern University’s Feinberg School of Medicine. She is the author of “Scarlet A: The Ethics, Law and Politics of Ordinary Abortion.”