Nearly three years after the reversal of Roe v. Wade, the fallout from the end of abortion rights can still shock us. In February, Adriana Smith, a 30-year-old Georgia nurse and mother, was nine weeks pregnant when she was taken to Emory University Hospital with severe head pains. A CT scan showed blood clots in her brain, and soon physicians declared Smith to be brain-dead.
Yet doctors have kept Smith on a ventilator ever since. Her mother says doctors told the family that their hands were tied by Georgia’s abortion laws, which criminalize the procedure at six weeks and defines a “natural person” to include “human being, including an unborn child.” Smith’s case shows that the consequences of the anti-abortion movement’s endgame — fetal personhood, the claim that human life and constitutional rights begin the moment an egg is fertilized — resonate well beyond the typical abortion case. And her plight is a reminder to the abortion rights movement as well: Even the right to abortion hasn’t always protected women like Smith or their families.
Anti-abortion groups see cases like Smith’s as an opportunity to set precedent.
It’s easy to think of Smith’s case as unimaginable in a world where Roe was still the law. But before the Dobbs ruling overturning Roe, hospitals sometimes made similar moves when there was a right to choose abortion. The argument was simple: In the days of Roe, when the state’s concern for fetal life was pitted against a woman’s autonomy, the latter prevailed. But when a woman was brain-dead, some hospitals thought, the conflict magically disappeared. A particular idea of fetal personhood erased the personhood of everyone else involved in cases like Adriana Smith’s.
In 1987, a woman named Angela Carder was 26 weeks pregnant when doctors found a large tumor in her lung. Her condition deteriorated so rapidly that physicians weren’t able to ask her what she wanted to do about her pregnancy. A judge ordered a cesarean section against the wishes of Carder’s family, who were convinced that she wouldn’t have chosen the procedure.
Both Carder and the infant died, and her family successfully sued, but the law on the issue remained murky. In Georgia, for example, the state Supreme Court ruled in 1981 that a hospital could force a woman to undergo a C-section to save the life of an unborn child. In 1986, a 19-year-old Washington, D.C., woman named Ayesha Madyun refused a C-section for religious reasons, but the hospital got a court order allowing the surgery to go ahead.
More recently, in 2013, a 33-year-old woman named Marlise Munoz was pronounced brain-dead after collapsing on her kitchen floor. Munoz, who was 14 weeks pregnant, lived in Texas, one of nearly a dozen states that had laws on the books forcing hospitals to keep pregnant patients on life support even in cases of brain death. Eventually, Munoz’s husband was able to get a court order requiring the hospital to end life support.
In each case, judges assumed that the state had a compelling interest in protecting life in the womb, or even that an embryo or fetus was a patient with rights and interests that could overcome those of a pregnant woman, even when she theoretically had a right to abortion. These cases are still happening in states that protect abortion: On Staten Island, in New York, a woman named Rinat Dray was forced to have a C-section against her will. Her malpractice suit is still ongoing.
The threat of prosecution isn’t abstract anymore.
Such cases all send the same message: Courts assigned so much value to fetal life that these interventions have been common, even at times when the law theoretically protects reproductive rights. Imagine what that means now that Roe is gone.
The endgame for the anti-abortion movement has long been legal recognition of fetal personhood. When Roe was on the books, this was something of a pipe dream, because the Roe Supreme Court had held that the 14th Amendment didn’t create rights before birth. That’s not true anymore. In theory, state legislatures, state courts and even federal judges can recognize enforceable fetal rights. All of these moves are meant to lead to a Supreme Court decision recognizing fetal rights that would render liberal laws on abortion or even in vitro fertilization unconstitutional. Before Roe, not every case like Smith’s or Munoz’s likely ended up before the courts or in the news. Some hospitals might have been able to defer to the wishes of family, because they operated in a legal gray area or they assumed that prosecutors might be reluctant to press charges when there was a federal right to abortion, especially when a healthy birth seemed improbable. Now, anti-abortion groups see cases like Smith’s as an opportunity to set precedent. So do state legislators, like the ones in Georgia who have praised Emory Healthcare. And the threat of prosecution isn’t abstract anymore. All of this means that Smith may be the first person to experience this kind of fate after Dobbs, but she won’t be the last. But Smith’s case is also another reminder to reproductive rights supporters that merely restoring Roe won’t be enough. Even when there was a right to choose, judges seemed unsure of what that meant when a woman refused a C-section, or when a hospital wanted to keep a woman on life support against the wishes of her family and regardless of the odds of a healthy birth. Whatever reproductive right comes next won’t mean much unless it helps the next Adriana Smith.
Mary Ziegler is a law professor at the University of California, Davis, School of Law and the author of "Roe: The History of a National Obsession." 
