You Might Be Shocked Which State Is Prosecuting a Stillbirth as a Murder

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Many Americans assume that the criminalization of pregnancy is limited to red states with aggressive anti-abortion prosecutors and draconian bans on reproductive health care. But it isn’t. In reality, prosecutors in blue states have also deployed the concept of “fetal personhood” to punish women for their pregnancy outcomes. When women experience a miscarriage or stillbirth, they are vulnerable to investigation and arrest if the state suspects they had an unlawful hand in their pregnancy loss. And even in deeply Democratic states, these probes can lead to severe criminal charges, including first-degree murder.

In this week’s episode of Amicus, Mark Joseph Stern spoke about one such case, Akers v. Maryland, with Karen Thompson, legal director of Pregnancy Justice. A preview of their conversation, below, has been edited and condensed for clarity.

Mark Joseph Stern: Can you tell us about the prosecution of Moira Akers? Because I know I was not the only person who was really surprised to see this going on in a Democratic state. 

Karen Thompson: And a state that has really strong protections for reproductive rights and against fetal personhood. In this case, Moira Akers had a stillbirth at home. She endured a traumatic labor and delivery. Her husband found her bleeding profusely and called 911 to take her to the hospital. That set off a chain of events that ultimately led to her arrest and prosecution. A nurse told the police: Go check her house to see what’s going on. And when the police arrived, they found the fetal remains. Ms. Akers said she had a stillbirth, and she didn’t know what to do. And state prosecutors charged her with first-degree murder.

The prosecutors claimed she gave birth to a live baby and then murdered it?

Yes. And what is so unique in this case is that, to prove its case, the state relied on Ms. Akers’ prior internet search history around abortion. That was seven months prior to her giving birth at home, very early in her pregnancy. Prosecutors also relied on her decision to forgo prenatal care and her decision to keep her pregnancy private—as well as something called the “lung float test,” which is exactly as it sounds. It’s a relic from the 17^th century that’s being used by medical examiners as a way to determine whether a child was born alive or not, and it’s not effective. But they relied on all of these things to prove that Ms. Akers had an intent to commit murder. So the mens rea that was being floated was that she had the audacity to look up abortion, and somehow that behavior seven months earlier was enough to show that she had intent to kill a live-born child.

Googling abortion early in her pregnancy and forgoing prenatal care, if I understand correctly, are not illegal in Maryland at all, right? Yet those were presented to the jury as proof that she was guilty of murder.

One hundred percent. And she was convicted of murder. Then the Maryland Supreme Court overturned her conviction in February. But she is currently incarcerated because the state is deciding whether or not to retry her.

Why did the Maryland Supreme Court overturn the conviction?

The Maryland Supreme Court really doubled down on the protections of Maryland’s reproductive justice framework. The majority said that Maryland law recognizes the fundamental difference between a fetus and a baby and rejects the concept of fetal personhood. They were very clear that a state’s use of a pregnant woman’s decisions made during pregnancy to prosecute her for the alleged murder of a live child is a violation of Maryland law. And they rejected this idea of fetal personhood as a legal precept that could be used to justify criminalization.

This decision was a real rebuke. It feels very powerful to see the recognition of pregnant women’s bodily autonomy—and also, there are not two. There is one woman who is pregnant, and she has the jurisdiction and dominion over her own pregnancy and her own body. So gendered beliefs about what makes a good mom cannot be a legislative or legal strategy.

And yet you said Ms. Akers is still behind bars because prosecutors are deciding whether they want to retry her without the evidence that the Maryland Supreme Court forbade?

Yes. And the court didn’t actually kick out the lung float test because it wasn’t at issue in the appeal. So that’s still “good” evidence if they retry her. Of course, we can try once again to make the arguments about why this test should not be used and how junky the science behind it is. But it’s still out there. And it’s up to the state to decide whether or not they think there’s still enough evidence to go forward in this case.

It’s pretty alarming that a deep-blue state may retry a woman for homicide because she experienced a stillbirth, and use discredited junk science to prove its case.

If we say the fall of Roe is something that only impacts people in red states—and we assign the dangerous nature of fetal personhood only to red states—we do so at our own peril. Because we ignore how these essential questions of both bodily autonomy and the creep of fetal personhood are impacting people all around the country.

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