Punished For Their Pregnancies

Summary

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"Punished For Their Pregnancies"

Amicus With Dahlia Lithwick – August 23, 2025
Host: Mark Joseph Stern (Slate)
Guest: Karen Thompson (Legal Director, Pregnancy Justice)

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Episode Overview

In this episode, Mark Joseph Stern sits in for Dahlia Lithwick to explore the escalating criminalization of pregnancy outcomes in the United States. The episode centers on how the fall of Roe v. Wade has not only intensified abortion bans but also led to a rapid increase in prosecuting women for miscarriages, stillbirths, and other pregnancy outcomes—sometimes even in deep-blue states. Through legal analysis and vivid case studies, Karen Thompson (Pregnancy Justice) details the mechanisms, risks, and repercussions of this trend, as well as strategies for resistance and reform.

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Key Discussion Points & Insights

1. Defining Pregnancy Criminalization

• Spectrum of Punishment:

  • Criminalization includes not just abortion bans but punishing women for pregnancy losses and behaviors during pregnancy that would otherwise be legal.
  • "Pregnancy criminalization relies very centrally on the idea of fetal personhood." (Karen Thompson, 01:12)

• Drivers:

  • Prosecutions are often triggered by healthcare providers reporting women to law enforcement.
  • It's a nationwide, not a purely partisan or regional issue.

2. How States Criminalize Pregnancy

• Three Key Areas of Criminalization:

  • Substance use during pregnancy (e.g., legal medical marijuana)
  • Disposal of fetal remains after miscarriage/stillbirth
  • Charging women with homicide/manslaughter after pregnancy loss

• Concrete Example (Oklahoma):

  • A woman prescribed medical marijuana for morning sickness (fully legal in state). Her baby was healthy but tested positive for THC. A hospital worker reported her, resulting in a felony child abuse charge.
  • Prosecutor argued the fetus should have been issued a medical marijuana card.
  • Karen Thompson: “In these cases, there's a little bit of this preposterous kind of circus-like engagement with the law to justify this invasion and this surveillance of the pregnant body.” (07:43)

3. Prosecuting Stillbirths as Homicide: The Akers Case (Maryland)

• Case Details:

  • Moira Akers had a stillbirth at home and was subsequently prosecuted for murder, based largely on:
    • Prior internet search history about abortion (from seven months earlier)
    • Her decision against prenatal care
    • Use of outdated “lung float test” to allege live birth

• Legal Outcome:

  • Maryland Supreme Court overturned the conviction, affirming that state law rejects fetal personhood and recognizes pregnant women’s autonomy.
  • However, Ms. Akers remained incarcerated as the state weighed retrial.
  • “It was a real rebuke…to recognize that there is no two. There is one woman who is pregnant, and she has the jurisdiction over…her own body.” (Karen Thompson, 12:07)

4. Positive Developments in Blue States

• California & New York:
  • New York's Equal Rights Amendment strengthens explicit protections for pregnancy outcomes and reproductive health autonomy.
  • California’s laws prohibit prosecution based on pregnancy choices.

5. Red State Backlash and Legislative Extremes

• Fetal Personhood & Abortion as Homicide:
  • 13 states have introduced fetal personhood bills; 15 with bills to classify abortion as homicide (including the possibility of the death penalty in 12 states).
  • "Crazy has moved to the center... There is a constant effort to normalize... abhorrent behaviors." (Karen Thompson, 18:42)
• Tech Surveillance:
  • Law enforcement using license plate readers and forensic genetic genealogy to track and prosecute women years after pregnancy events.

6. Forensic Genetic Genealogy & Delayed Prosecution

• Technique:

  • Decades-old fetal remains are DNA-tested and matched via public ancestry databases, resulting in arrests years after events.
  • “It becomes this literal…witch hunt over the expanse of 20 years.” (Karen Thompson, 24:37)

• Recent Cases:

  • Example: A Georgia woman hospitalized following a miscarriage was reported and charged with abandoning a dead body—charges that could escalate to murder under state law.

7. Fetal Personhood – Legal and Ideological Impact

• Definition & Risk:

  • Fetal personhood establishes legal rights for embryos and fetuses, fundamentally shifting rights away from pregnant women.
  • Influences not just abortion, but IVF, contraception, and maternal care.
  • Karen Thompson: “There's no shared right here. When you introduce fetal personhood, you fundamentally change the legal rights and status of all pregnant women.” (28:47)

• Danger of Seemingly “Benign” Laws:

  • Wrongful death suits for fetuses can embed fetal personhood with far-reaching consequences.

8. IVF and Embryo Cases: The Alabama Decision

• Extrauterine Children:
  • Alabama Supreme Court recognized “frozen embryos” as legal children, liability for wrongful death applied.
  • Other states (SC, LA, TX) moving to adopt similar measures.

9. Extreme Applications: The Adrianna Smith Case

• Atlanta, GA:
  • A pregnant woman declared brain-dead at nine weeks was kept “alive” for months purely to sustain the fetus, under the legal imperative of fetal personhood.
  • “Her body is animated for the next two months to sustain this fetus...this is fetal personhood taken to its logical extent.” (Karen Thompson, 35:52)

10. The Challenge of Stigma and Public Attitudes

• Liberal Blind Spots:
  • Support for reproductive rights often wavers on issues like drug use in pregnancy or disposal of fetal remains.
  • Misconceptions (e.g., “crack baby” epidemic) fuel judgment, not science.
  • "You don't stop being a person when you become pregnant..." (Karen Thompson, 39:01)

11. Looming Threats & Future Fights

• Three Major Fears:

  1. Supreme Court defining fetal personhood under the 14th Amendment, criminalizing abortion nationwide.
  2. Limiting Emergency Medical Treatment and Labor Act (EMTALA) coverage, threatening emergency abortion access.
  3. Ongoing normalization of increasingly draconian, “cartoonishly evil” laws.

• Advocacy & Legal Strategy:

  • Pregnancy Justice’s three-pronged approach: research (tracking cases), policy (state legislative advocacy), and litigation (developing constitutional arguments, e.g., via the Ninth Amendment).
  • Karen Thompson: “…no one is doing this lying down... every single group of people in this country are impacted... if we can figure out a way to get to the root... it's going to benefit people all over the country.” (48:12)

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Notable Quotes & Moments

• On Fetal Personhood:

  • “You force [pregnant women] to forfeit their personhood once this kind of fetal person has taken up residence inside their bodies.”
    (Karen Thompson, 28:47)

• On the Transformation of Law and Normalization:

  • “What the last six months have shown us is that there is a constant effort to normalize, to make very kind of abhorrent behaviors seem daily and completely within the natural state of things.”
    (Karen Thompson, 18:42)

• On Stigma:

  • “You don't stop being a person when you become pregnant.”
    (Karen Thompson, 39:01)

• On Advocates’ Work:

  • “Part of the fight is knowing what is going on... our research department is tracking cases... our policy department is working with legislatures...”
    (Karen Thompson, 46:32)

• On Hope and Solidarity:

  • “No one is doing this lying down... If we can figure out a way to get to the root... it's going to benefit people all over the country.”
    (Karen Thompson, 48:12)

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Timestamps for Key Segments

• [01:12] Introduction to fetal personhood & pregnancy criminalization
• [04:56] Concrete ways states criminalize pregnancy
• [07:43] Oklahoma marijuana case
• [09:44] Akers case (Maryland stillbirth as homicide)
• [12:07] Maryland Supreme Court rebuke of prosecution
• [16:40] Positive legislative steps in CA & NY
• [18:37] Extremist legislative efforts in red states
• [22:16] Forensic genealogy and delayed prosecutions
• [25:03] Georgia miscarriage & improper disposal case
• [28:47] Legal framework of fetal personhood
• [32:03] Alabama Supreme Court embryo case
• [33:46] Atlanta’s Adrianna Smith, brain dead pregnancy case
• [38:59] Stigma and public attitudes, even among liberals
• [43:11] Looming legal threats: 14th Amendment, EMTALA
• [46:32] Strategies for resistance & hope

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Conclusion

This episode reveals the breadth and urgency of pregnancy criminalization post-Roe, blending nuanced legal analysis with poignant real-life stories. Karen Thompson emphasizes that the issue transcends state lines and politics, targeting not just those seeking abortions but all pregnant people—including those suffering pregnancy loss or merely making personal health choices. The normalization of punitive and draconian approaches, fueled by both new technologies and centuries-old prejudice, demands vigilance and collective action. Highlighting both recent legal victories and strategies for continued resistance, the episode closes with a call to recognize the shared humanity and rights of pregnant people—before, during, and after pregnancy.

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Transcript

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[Mark Joseph Stern]

I'm Mark Joseph Stern and this is Amicus Slate's podcast about the courts, the law and the Supreme Court.

[Karen Thompson]

There's no shared right here. When you introduce fetal personhood, you fundamentally change the legal rights and status of all pregnant women. You force them to forfeit their personhood once this kind of fetal person has taken up residence inside their body.

[Mark Joseph Stern]

The fall of Roe v. Wade in 2022 marked a dark turning point in American law. With a single decision, the Supreme Court overturned 50 years of precedent protecting a woman's right to reproductive choice. The ruling set off a high stakes battle to restore abortion access in red and purple states and drew attention to the life threatening horrors that these bans inflict on women with failing pregnancies. But there's another threat to reproductive freedom in the United States, and that's the criminalization of pregnancy outcomes, prosecuting women for experiencing a miscarriage or stillbirth. This has been going on since before the demise of Roe, something Georgetown law professor Michelle Goodwin documented In her renowned 2020 book Policing the Womb. But with Roe wiped off the books, these prosecutions have ramped up. They aren't limited to red states either. In recent years, we've seen prosecutors in deep blue states seek prison time for women who had a miscarriage or stillbirth. Lawmakers around the country are developing new ways to punish women whose pregnancies don't result in a Healthy, live birth. Karen Thompson is on the front lines of the increasingly pitched battle to defend women being criminalized for their pregnancies. She's the legal director of Pregnancy Justice, a group that provides criminal defense to pregnant people and advocates for legal legal reforms to ensure that no one loses their rights simply because they're pregnant. Karen, welcome to Amicus.

[Karen Thompson]

Hey, Mark, thanks for having me. Appreciate being here.

[Mark Joseph Stern]

So I want to start with an overview of pregnancy criminalization, because I think it gets a lot less attention than the broader fight for abortion access. So, broadly speaking, what is this line? Or maybe it's a spectrum between abortion being illegal and criminalizing pregnancy.

[Karen Thompson]

I don't even know that it's a direct line, to be honest. It's more of the kind of ripple in the pool, in a sense, because pregnancy criminalization relies very centrally on the idea of fetal personhood. And I know we'll get into that later, but what Pregnancy justice really looks at is defending the rights of all pregnant people, no matter if they give birth, experience a pregnancy loss, or have an abortion. And the fact is, abortion cases are the vast, vast minority of our cases, because when we talk about pregnancy criminalization, we're looking at both civil and criminal punishment for conduct during pregnancy that would be legal for anyone else, but that is perceived as putting a fetus at risk. So we are here to defend those folks who are experiencing pregnancy loss and who are treated as criminally suspect and then investigated or prosecuted because of that behavior. So it's a little bit different, and.

[Mark Joseph Stern]

We should be super clear. These are cases in which the patient herself is being prosecuted. These are not cases against a doctor accused of violating some abortion restriction. This is going after the pregnant person as an individual for civil penalties or even prison time.

[Karen Thompson]

That's correct. And sadly, in the vast majority of the cases, that process, that criminalization process is actually sparked by healthcare professionals. So it's very much against the pregnant person.

[Mark Joseph Stern]

So what are some concrete examples of. Of how states criminalize pregnancy right now?

[Karen Thompson]

Well, there's three different pots, so let me actually just break down the pots, and then we can talk about the specific examples. But the three kind of main areas where we see pregnancy criminalization occur is folks who are using substances during their pregnancy, people who are struggling with how to get rid of fetal remains after they've had a miscarriage or a stillbirth, and then folks who are straight up being charged with homicide, murder, manslaughter. Right. So there's this kind of wide range of criminalization. And what we see in all of the states where it's happening. And thank you for stating that. It's not a kind of a red state thing or a blue state thing. It's a United States thing, and it's a misogyny thing. And in each situation, what we have is someone who is being told that their behavior during pregnancy is illegal. Right. And it could be something that 100% wouldn't have been illegal if the day before their pregnancy test had come out negative. Right. But the minute you get that pregnancy test, it becomes the window in which the state or law enforcement are now given the freedom and the latitude to become a part of that pregnant person's body. There is another person, literally that they believe that they have a right to defend and protect. And what that immediately creates is this kind of conflict of rights. So rather than the pregnant person being able to sustain and maintain their freedoms, they now have to be in conflict with the fetus that they're carrying. And that provides cover for law enforcement to prosecutors in particular to bring charges where they think things are not acceptable. So as an example with the question of substance use, there is a recent case in Oklahoma where a woman was having horrendous morning sickness and went to her doctor and her doctor said, you know what? Here's a medical marijuana card. It'll help. You're going to be fine. Medical marijuana is legal in Oklahoma. You can get a medical marijuana card. And she got the card. She smoked during her pregnancy, and when she gave birth, the baby was fully healthy, but it also tested positive for thc. And based on that, a hospital worker turned over her test results to the police, who then charged her with abusing her child, a felony child abuse claim. And in that argument, the prosecutor said that the fetus should itself have had a medical marijuana card.

[Mark Joseph Stern]

Oh, my God.

[Karen Thompson]

And so there's a kind of. In these cases, there's a little bit of this preposterous kind of circus like engagement with the law to justify this invasion and this surveillance of the pregnant body. And it's really, you know, it shocks me every time. And I guess I shouldn't be shocked because my background is in kind of wrongful convictions and civil rights work. And so I've seen a lot of really bizarre things. But to have these really beyond the pale, kind of stretched out legal theories to get to this control. It's been a real eye opener.

[Mark Joseph Stern]

Yeah, I. So I think that example that you just gave draws out two themes that we've already touched on, and we're going to be discussing the first. Just to be super clear about this is here's an individual who is being treated worse under the law because she is pregnant. She is being treated as suspect. Her body is a potential crime scene because of her pregnancy. And that is happening in Oklahoma, which is of course a red state, but as we'll soon discuss, it's happening in blue states as well that purport to celebrate the rights of pregnant people. The second theme is this was a person who thought that her health care providers could be trusted to ensure her best care. And one of those providers turned her into the police and subjected her to prosecution. And that just seems like such a grievous betrayal of what healthcare providers are supposed to do and what they swear an oath to do. But I guess this particular worker viewed it differently. I want to drill down on another example that I know is sort of ongoing in a case that you've worked on. And this is about the treatment of stillbirth as homicide. So I know you worked on the Akers case in Maryland. Can you tell us about that prosecution and the Maryland Supreme Court's decision? Because I know I was not the only person who was really surprised to see this going on in a deeply, deeply democratic state.

[Karen Thompson]

And yes, a democratic state and also a state that has really strong protections for reproductive rights and against fetal personhood. So in this case, Moira Akers had a stillbirth at home. She endured kind of a traumatic labor and delivery, and her husband found her bleeding profusely and called 911 to take her to the hospital, as you do. But that kind of set off this chain of events that ultimately led to her arrest and prosecution, including the fact that a nurse was like, oh, she gave birth. Go check her house to see what's going on. And when the police arrived, they did find the fetal remains. And Ms. Akers was like, I had a stillbirth. This is what happened. I didn't know what to do. But what is so unique in this case is that the state actually relied on Ms. Akers prior Internet search history around abortion. And this is seven months prior to her giving birth at home.

[Mark Joseph Stern]

So very, very early in her pregnancy.

[Karen Thompson]

Very early in her pregnancy. And they also relied on her decision to forego 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 basically a relic from the 17th 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. Okay. And so the mens rea that was being floated was that she had the audacity to look up abortion, to look up abortifacients, and that somehow that behavior seven months in was enough to show that she had some sort of intent to kill a live born child.

[Mark Joseph Stern]

So Googling abortion early in her pregnancy and forgoing prenatal care are two things that, if I understand correctly, are not illegal in Maryland at all. Those were presented to the jury as proofs that she was guilty of murder 100%.

[Karen Thompson]

And she was convicted of murder, and she is currently incarcerated. Even though the Maryland Supreme Court recently overturned that conviction. The fact is she's still in because the state is deciding whether or not they're going to retry her.

[Mark Joseph Stern]

So why did the Maryland Supreme Court overturn the conviction?

[Karen Thompson]

There were a lot of reasons, but it was really heartening, I have to say. Like in a moment where we're not getting a ton of decisions from courts that make us feel like there's reasons for hope, the Maryland Supreme Court really doubled down on the protections of Maryland's reproductive justice kind of framework. They 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, you know, a state's use of a pregnant woman's decisions made during pregnancy to prosecute her for the murder of a live child is a violation of Maryland law. They just really reject this kind of idea of fetal personhood as a legal precept that should be used to justify criminalization. And it was a real rebuke. It feels very powerful to have folks not only realize the bodily autonomy of pregnant women, but also to recognize that there is no two. There is one woman who is pregnant, and she has the jurisdiction over and dominion over her own pregnancy and her own body. And that, you know, kind of gendered beliefs of what makes a good mom cannot be a legislative or legal strategy.

[Mark Joseph Stern]

But as you said, Karen, Ms. Akers is still behind bars. And so prosecutors are deciding whether or not they want to retry her right now without the evidence that the Maryland Supreme Court forbade.

[Karen Thompson]

Well, they didn't actually kick out, first of all, the lung float test because that wasn't actually at issue in the appeal.

[Mark Joseph Stern]

So that's still good evidence if they retry.

[Karen Thompson]

Oh, yeah. I mean, if it goes back to trial, you know, obviously there can be another Daubert hearing and we can try once again to make the arguments about why this test should not be used and how junky it is of a science. But it's still out there, right? And it's Again, it's up to the state to decide whether or not they think there's still enough to go forward on this case.

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[Mark Joseph Stern]

Let's return now to my conversation with Karen Thompson of Pregnancy Justice. The news in this area is not entirely bleak. Some blue states have passed reforms that protect women from this kind of pregnancy criminalization, right?

[Karen Thompson]

Absolutely. I think the two best kind of examples are what's happening in California and New York, because in New York, we've seen the Equal Rights Amendment passed, the amendment to the state constitution, which explicitly introduced protections for pregnant people, pregnancy outcomes, and autonomy in reproductive healthcare. And it also protects against discrimination based on a huge array of identities. You know, ethnicity, national origin, age, disability. And so bringing those things together and seeing this whole question as one that's very interconnected, not only lifts the boat of reproductive justice, but it also, you know, lifts the boat for so many other people and things. And so that's powerful. That's really great testimony. And we actually have a case out of New York where we're able to argue that the ERA should protect a father who's also being threatened with having his kids taken away for not controlling his pregnant partner's behavior during pregnancy. Right. So it's already in action, and it's already helpful. And then California also has a really powerful statutory protection for folks who are pregnant. In the same way, it says you can't prosecute people for choices that they make during their pregnancies. Right. And so it seems simple, and it is simple. And in those states, we have seen some positive developments about using these cases to protect people who are prosecuted. So even if those prosecutors still bring these cases, there's a really kind of solid wall to prevent that charge from going to someone, being in prison and serving time.

[Mark Joseph Stern]

On the other hand, a lot of red states are moving in the opposite direction of California and New York. How are we seeing Republic legislatures move beyond abortion bans into even more direct persecution of pregnant people?

[Karen Thompson]

Yeah, it's a little bleak. So, 13.

[Mark Joseph Stern]

I'm ready. I'm prepared.

[Karen Thompson]

Thirteen states have introduced bills that attempted to misapply equal protection principles, 14th amendment principles to. And these are, you know, my very large scare quotes. Protect the rights of fetuses and embryos. Which means that they're introducing laws that are about protecting the unborn child, as they phrase it. And 15 states, so a few more than who've introduced these fetal personhood bills, have also introduced abortion as homicide bills, which means that if you have an abortion, if passed, those bills would make that act a homicide. And in 12 of those states, the death penalty could be applied for having an abortion. So just to be clear, none of those 15 bills have actually passed. So none of the attempts to make abortion a homicide have been successful. But it's just the fact that this used to be a deeply fringe idea. Right? Like, somebody would say, hey, I'm gonna pass a Abortionist homicide bill. And people would be like, that's too fringy. Like, you know, the GOP would be like, you can't do that, please, you're gonna make us look crazy. And now like, crazy has moved to the center. And not only has it moved to the center, but it crazy as being moved out of committee and being voted on. Right. So what the last six months have shown us is that there is a constant effort to normalize, to make very kind of abhorrent behaviors seem daily and completely within the natural state of things. Whether that's dragging people off the street and taking them to prisons in the middle of swamps or, you know, separating kids, which is nothing new. But what we are seeing is this normalization of terrible things. And so the fact that we have 15 bills that would make abortion a homicide, it's nerve wracking. And when you combine that with the tech surveillance, the fact that a, you know, sheriff's office in Texas was using automatic license plate readers to track down someone who had an abortion, there's a confluence of factors, there's a confluence of tech, there's a confluence of these political efforts. Jonathan Mitchell bringing cases allowing abusive exes to sue their girlfriends and get injunctions to prevent them from having future abortions. Our role as pregnancy justice and the attorneys who work at our organization and the folks who are doing the research and the policy work, we are trying to get in there, to throw some elbows, to open some windows and to kind of deflate and make. Make this as visibly perverse as it is.

[Mark Joseph Stern]

And Jonathan Mitchell is the anti abortion advocate who wrote Texas's abortion ban bounty hunter law and is now going around helping abusive ex boyfriends and ex husbands sue their girlfriends and wives for getting an abortion or trying to. Right.

[Karen Thompson]

Yes. That's. That's not the bio anyone should want to have.

[Mark Joseph Stern]

Yeah. And yet he seems proud of it. I want to pick up on this thread of surveillance and forensics because it seems like a lot of these prosecutions aren't just about very recent events. We're seeing police and prosecutors using forensic techniques to hunt down women months or maybe years down the line. Can you explain how forensic genetic genealogy is being used against patients in some of these cases?

[Karen Thompson]

Absolutely. And I. They're not even patients. Like, this is their grandmas. Right. So what's happening is that folks who may have had a stillbirth 20 years ago, 10 years ago, 15 years ago, and disposed of the fetal remains in a way that, I don't know, it could have been buried. Folks could have put them in a box somewhere, but in a way that the state didn't approve of. And later, those remains are found and they are DNA tested. So that becomes the kind of basis of the issue using something called forensic investigative genetic genealogy. Forensic investigative genetic genealogy uses DNA analysis and genealogy to identify unknown individuals. So usually in cold cases, by comparing DNA from crime scenes to genealogical information, it combines genetic genealogy, where DNA profiles are uploaded to online or public databases like GEDmatch to find relatives, with traditional research to build family trees. But it's being used to backfill in these criminal cases. And so it might take 20 years, but these genealogy researchers will make the tie between the fetal remains and usually, again, a grandma somewhere in the country who has moved on with her life, who's raised her children, and then charge her with murder. And so we have two cases on this very topic now. And it's a really, you know, shocking kind of way to go through a litigation, because 20 years later, when you've only tested remains, how do you prove that the stillborn child was born alive? You can't really. Right, right, of course. And the only witness to the labor is usually the person who's been charged and she's not believed. Right. The assumption is that she murdered the child. And it becomes this literal, like, literally, because folks are being treated like witches. And it becomes this hunt over the expanse of 20 years. And so it uproots people's lives, it uproots their families, and then there they are facing the possibility of a life sentence for murder.

[Mark Joseph Stern]

And it sends a message to anyone who might in the future, want to privately dispose of fetal remains, that they're never safe. Right. There could always be a knock at the door, and it could be cops coming to arrest them, because five, 10, 15 years later, the state used forensic genetic genealogy to track them down. And now they're going to be prosecuted for murder years after the events that took place, which may well have been entirely legal, 100%.

[Karen Thompson]

And I mean, the sad thing is you could get prosecuted 20 years later, or you get prosecuted in the moment, because in March in Georgia, a woman was unconscious and bleeding in her apartment, and she called 911 before she passed out. And a witness reported to the EMTs that she had placed fetal remains in a dumpster because she had had a miscarriage. And she gets to the hospital, it's the same story. Gets to the hospital, and again, she's reported for concealing the death of another person and abandoning a dead body. And what happens ultimately is that it's determined that she had a natural miscarriage, again with the scare quotes at about 19 weeks, and that the fetus was non viable. But in Georgia, they have something called the Life act, which was passed in 2019 and went into effect shortly after Dobbs. And the Life act bans abortion after the point of, you know, cardiac activity in the embryo.

[Mark Joseph Stern]

They call it a heartbeat.

[Karen Thompson]

But, yeah, I'm not gonna give it that much legitimacy.

[Mark Joseph Stern]

Right, of course.

[Karen Thompson]

But basically, it gives benefits and legal recognition to an unborn child. So if they had determined that that miscarriage wasn't natural, then not only would the charges have stuck, but they could have actually charged her with murder. And the thing is, if you have a miscarriage, no one sits you down before you have the miscarriage and says, hey, if you miscarry, this is how you dispose of fetal remains. What doctors usually say is, go home and miscarry. And what most folks who are pregnant, what was women decide, if they realize they are miscarrying, is they go. They sit on the toilet. Right? And so that is enough to say that you are improperly disposing of a miscarriage. But no one is actually saying what the proper way to do it is. And most importantly, no one is leaving that decision to the person who's having it. So we have this grief. We have this process that's happening, and it might not be grief, but. But the process alone should belong to the person who is in it, and that is being removed and it's being criminalized. And, you know, I really. I think about Andrea Richie every day. I mean, she's an abolitionist who's done a ton of work on, you know, questions of closing prisons and making the human rights of folks who are incarcerated visible. But one of the things that she says that I think is so necessary to talk about here and in this space is that that criminalization is the way that fascism manufactures consent. And every time I see these kinds of cases and every time I see someone's natural process being dragged into the criminal justice system, it feels one of a part of that effort to manufacture consent, to make women guilty and to create them and to constitute them as a crime scene so that they can always be surveyed and always monitored. It's one of many pieces of this moment that we need to pay attention to. But I think it's the reason why pregnancy criminalization is so important. And I hope that it becomes more of an issue that people are aware of, because I think we are focused very much on abortion. But there's so Much under those waves that are just as dangerous. It's a true kind of riptide. For the political moment we're in, I.

[Mark Joseph Stern]

Wanna zoom out a bit and look at the broader legal framework that pregnancy criminalizers seem to be constructing here. I think the Georgia law you mentioned is a perfect examp example of this. This is fetal personhood, right? The idea that a fetus has rights, maybe even constitutional rights that the government has an obligation to protect. Can you talk about some of the ways this idea is influencing laws and policies that take aim at pregnant women beyond what we've already discussed?

[Karen Thompson]

Absolutely. So it's exactly as you said, it's a radical ideology that fertilized eggs, embryos and fetuses have the same, if not more legal rights and statuses as you and me. And so, you know, pregnant women lose their rights and face the threat of criminalization based on any conduct that some authority believes is a risk to her pregnancy. And there's no shared right here. When you introduce fetal personhood, you fundamentally change the legal rights and status of all pregnant women. You force them to forfeit their personhood once this kind of fetal person has taken up residence inside their bodies. And so fetal personhood is really at the heart of the anti abortion movement and it is at the heart of criminalization because it undermines and diminishes the rights of all women across the full scope of reproductive healthcare services. So that's ivf, that's even contraception. And it also worsens the maternal mortality crisis because pregnant women in obstetric emergencies are forced to be on the brink of death before doctors feel that they can do anything because they have to protect the life of this fetus, whatever that means. Right. And so we've been tracking pregnancy criminalization going back to 1973. And what we are seeing is that the expansion of fetal personhood in state law has just accelerated, especially post Dobbs. And now there's almost no state in the country where there isn't some aspect of fetal personhood that hasn't been stitched into the kind of the patchwork of state laws. And you know, again, just there's no red or blue, there's just purple. The fact is that there are blue states that have laws that kind of uplift this idea of fetal personhood in their own civil law, specifically in areas like wrongful death or even trust in estates. And so you might say, but it's never gonna be that bad. But in people's heads, like say, for instance, there's a car accident and One of the people in the car happens to be pregnant and they lose their pregnancy, that person can sue you for the wrongful death of their child. Right. And people think that's totally normal, but that's actually a fetal personhood principle. This goes back to the question of that normalization process, because people think that seems totally fine, but that's the manufacturing of cons, and it never stays still. And that's the thing with legal. The legal world of pregnancy criminalization. It always expands.

[Mark Joseph Stern]

Right. The seemingly benign efforts of the states to protect pregnant people in cases like that are actually establishing fetal personhood in a way that will hurt pregnant people. And we just don't think about that. We think, oh, she lost her pregnancy, of course she should be able to sue. But that can entrench an idea in the law that becomes very dangerous and harmful for other people, pregnant people, always.

[Karen Thompson]

And then that the 14th amendment is being used to justify it. Right. It. It completely takes out every kind of reason behind that amendment. It turns it into something foul.

[Mark Joseph Stern]

You mentioned embryos and fertilized eggs. It was just last year that the Alabama Supreme Court ruled that frozen embryos were children under state law, meaning anyone who damaged them was liable for wrongful death of a. Is that the direction you see other states potentially heading?

[Karen Thompson]

Oh, absolutely. I mean, we've seen it already. South Carolina, Louisiana, Texas, they're all following the lead of Alabama. And it's important to note that Alabama. This isn't. LePage, was the pinnacle. Right. Because this has been going on since 2013.

[Mark Joseph Stern]

That's the embryo case. LePage.

[Karen Thompson]

Yeah. That found extrauterine children. Frozen embryo.

[Mark Joseph Stern]

Extrauterine children in a cryogenic nursery. Right. That's the terminology adopted by the court. Just everyday language.

[Karen Thompson]

It's totally normal to reach into dry ice for your child.

[Mark Joseph Stern]

For your microscopic child. Yeah, exactly.

[Karen Thompson]

But do you see what I'm saying?

[Mark Joseph Stern]

Totally.

[Karen Thompson]

It's absurd.

[Mark Joseph Stern]

Yeah, it's absurd. And yet we have to take it seriously. Because even though Alabama sort of changed the law after that, though not necessarily in a way that will protect future IVF patients, the decision gave other states an idea. And, you know, there seems to be no end to the radical laws that these legislatures are pushing. It seems like protecting, quote, unquote, embryos is simply the next frontier after moving beyond fetuses.

[Karen Thompson]

Yes. And we haven't. The frontier is here.

[Mark Joseph Stern]

Yeah.

[Karen Thompson]

So again, you know, another recent example from this year is the horrifying case of Adrianna Smith.

[Mark Joseph Stern]

Can you talk about that case?

[Karen Thompson]

Yeah. So Ms. Smith was a nurse in Atlanta and she was not feeling well and she went to the doctor and she was pregnant. She said, I'm having these headaches. I don't know what's going on. And they basically sent her home with some Tylenol, which is another entire show about black maternal mortality and black women not being believed in healthcare settings. But that's exactly what happened to Mrs. Smith. She was sent home with this Tylenol and the next day she throws a blood clot and she is declared brain dead. But because she is pregnant, she is kept alive or her body is animated for the next two months to sustain this fetus. Adriana Smith was only nine weeks pregnant when she was declared brain dead. It was actually of all of those cases, of that whole kind of pot of woman as incubator cases, I don't even know how else to say it. She was the earliest ever recorded. The hospital says that they had no choice because of the life act that I talked about earlier. And so, you know, this is fetal personhood taken to its logical extent. If there is a public fetus in a body that needs to be protected, that has equal and in some cases more rights than the pregnant woman who is carrying it, then of course it is logical that someone who is literally dead will have their body Frankensteined to support a fetus. And so, I mean, sometimes, you know, you gotta have gallows humor and sometimes it's like, haha he. But then at the same time, there are horrors that are being justified in the name of this legal theory. And so we all have to think of ways to counter and to interrupt it because it is dangerous.

[Mark Joseph Stern]

It seems like you couldn't come up with a better example of how these laws treat women as literally just vessels or carriers for fetuses, which are what really matter far more than the life of the actual individual.

[Karen Thompson]

100%. And it wasn't the first one. Ms. Smith's case was just the most recent. It's happened in Texas. It's happened in at least 36 cases around the country. So, you know, we're here, we're in this moment, and we have an obligation to fight back.

[Mark Joseph Stern]

More in a moment with Karen Thompson.

[Podcast Advertiser/Host]

Law touches most aspects of American life, from constitutional rights to our medical treatment, to whether our food and water are safe. I'm Pam Karlan, host of Stanford Legal. I teach all sorts of classes and I've argued 10 cases before the Supreme Court. On the show, we talk to experts. Many of them are colleagues here at Stanford. For example, an expert on international trade law about tariffs, a former prosecutor about the Trump Justice Department or an expert on AI about how it's transforming legal practice. I hope you'll listen to Stanford Legal, available wherever you get your favorite podcasts. This Supreme Court term isn't business as usual. It's a full blown battle over democracy. Justices are shattering precedent, grabbing power, and even turning on their own. It's messy, it's high stakes, and it's already reshaping how the country works. Hosted by three constitutional law professors, Melissa Murray, Kate Shaw and Leah Lipman, strict scrutiny breaks it all down legally, clearly, and with just the right amount of side eye. They're smart, they're funny, and they make everything a little easier to understand. They make you smarter, too. New Episodes Drop every Monday. Subscribe and listen wherever you get your podcasts and on YouTube.

[Karen Thompson]

Hi, I'm Susan Glaser. I'm Jane Mayer.

[Mark Joseph Stern]

And I'm Evan Osmose. And we host the Washington Roundtable from the New Yorker's Political Scene podcast.

[Karen Thompson]

For me, this is the water cooler. This is a wonderful chance to sit down with two of the smartest colleagues in the country and, you know, just.

[Podcast Advertiser/Host]

Kind of compare notes.

[Karen Thompson]

Now that's so true because first of all, we are actually friends in real life. But I can't wait till Fridays to hear what you guys think. Everybody sees the headlines, but you guys fill in the gaps.

[Mark Joseph Stern]

I also think, though, occasionally we get somebody to come on, and I'm always smart. If you get a great historian who can tell you about a presidential election 50, 60 years ago, often it can help you understand about what's happening today.

[Karen Thompson]

So if you're looking for weekly insights into what's going on inside the Beltway, please join us every Friday on the Washington Roundtable, part of the New Yorker's Political Scene podcast.

[Mark Joseph Stern]

And we're back with Karen Thompson of Pregnancy Justice. One of the big issues that advocates like you seem to face is the stigma around pregnancy loss. Even a lot of liberals may be willing to defend reproductive freedom in the abstract, but get a little wobbly when it comes to drug use during pregnancy or personal disposal of fetal remains or some of the other stuff we've talked about. Why should they defend the rights of people facing prosecution for those acts just as vigorously as they oppose red state abort bans?

[Karen Thompson]

That is a serious question mark. And I'm really, I'm really glad you asked it because I think it's a fundamental problem with how people think about pregnancy criminalization, as you said. But it's, it's one of the reasons why I think we are always seeing this kind of pivot to abortion rights because pregnancy criminalization issues are hard for people to hold. I think that there is so much judgment around what a, quote, good mother is, right? And I think that what we have learned is that there is only one way to be a good pregnant person or a good mother. And that is that you are always excited and, you know, drinking milk that has been taken from a cow whose feet have never touched the ground. And like, you know, like there's always like sunshine and roses and unicorns around the whole process. And that is just not true. That is not true for the vast majority of people. And you don't stop being a person when you become pregnant. And so when it comes to questions about drug use, for instance, people should care about this, whatever your thoughts are about someone who's using it, pregnant. Because what we're also seeing is that folks who go to give birth in a hospital might stop off to have, you know, an everything bagel before they arrive. They get to the hospital to give birth, they're drug tested and their urine test comes back positive for opiates because they had a poppy seed on their bagel. And then cps, the child protective services are called because there's a threat that you are abusing your child that affects everybody. The example I gave out of Oklahoma, medically prescribed by a doctor to use marijuana to help with morning sickness, charged with felony child abuse. This is not just about those people over there. It is about everyone. But for those people over there, people take drugs for a lot of reasons, right? And a lot of people take drugs. And so that could be just because it makes you feel good. That could be because you are self medicating. But the fact is that drug use during pregnancy, if you actually look at the studies, if your concern is, oh, well, you know, what about the fetus? Well, the vast majority of drugs actually have little to no impact on children once born. And we've been here before, right, because we went through the 90s and the whole crack baby epidemic. And we know what was done, we know what people were saying. Even Hillary Clinton was talking about this whole generation of super predators. And that was all based on this idea that crack use during pregnancy was destroying a generation. That wasn't true. And the New York Times had an issue, an apology about that. We have stereotypes about what is happening that are not actually tied to the reality of what's happening. If you are concerned about folks using during pregnancy, the concern should be to make sure that they are getting the healthcare that they need for all of their needs and that if a child is born that is suffering from any kind of withdrawal or neonatal abstinence syndrome, which is if a child is experiencing some addiction issues, as acog, the American College of Obstetricians and Gynecology gynecologists will say, as so many medical organizations will say, the best thing for a baby at birth is to be skin to skin is to be breastfed. That is how you heal both mother and child. Right? And so none of that is happening when we judge, when we have all of these stereotypes. What's happening is the healthcare is being taken away, the outcomes get worse, and we are not making everything better. We are just criminalizing care.

[Mark Joseph Stern]

Before I let you go, we should look ahead. The landscape for reproductive rights is shifting very quickly, as we've discussed, and not really in good ways for the most part. What is looming right now on the horizon that has you particularly concerned in this area?

[Karen Thompson]

I think there are three things I'm worried about. The adulteration of the 14th amendment and a decision that might come out of the Supreme Court that would justify fetal personhood on a constitutional basis which would effectively criminalize abortion nationwide. I am worried about the re emergence of emtala. It was sent back by the Supreme Court for procedural issues, but I think it's, it's creeping its way back. And I'm worried that we're going to get a decision that hospitals will not be able to perform abortions if there is someone who needs one to save their life.

[Mark Joseph Stern]

EMTALA is the law that the Biden administration interpreted to require hospitals to provide emergency abortions. And the Trump administration has changed that interpretation and is asking the courts to embrace a new reading that says hospitals aren't required to provide. Provide emergency abortions. Right?

[Karen Thompson]

That's exactly right. You know, we can't take any of this. We can't kind of disaggregate it from the big hideous bill that was recently passed and the cuts to Medicaid. Because when people are not getting the care they need during their pregnancies, there's a chance that there are going to be worse and worse birth outcomes. And whenever there's a bad outcome that is a stillbirth or miscarriage, we know what follows is, is criminalization. So with more criminalization, with more poor birth outcomes and with EMTALA falling, we're also going to see more people die. So that that troubles me and people are just going completely ham. Like there is more bizarre stuff happening that I said is like cartoonishly evil that is becoming day to day. It's becoming every day. And I think if we all had to witness Ms. Smith's situation, I worry about what the next thing is. I worry about what other thing that we are going to normalize because it seems like we're already on the outer reaches, but there is kind of an endless capacity for evil. So I worry about what the next phase of criminalization is that's going to manufacture this consent to survey and control, particularly the rights of women. We know that people are advocating removing the right to vote, but what does that mean about leaving someone powerless in the face of their own pregnancy? What does that new line of criminalization look like? So we're fighting, we're thinking. We're having a virtual symposium on October 10th that folks can register to. I'm working on how we can fight back, what the legal theories are, what the constitutional theories of liberation could be in this space. And so I think they're there.

[Mark Joseph Stern]

So I want to ask you about that fight and maybe end on a little bit more of a positive note.

[Karen Thompson]

Sorry, I'm really fun at parties.

[Mark Joseph Stern]

No, I mean, I think this is really important. But you work for pregnancy Justice. You're here on the front lines fighting back. So what strategies have you and your colleagues been developing to cope with what is coming down the pipeline right now?

[Karen Thompson]

Well, we, you know, as an organization, we have three legs to our stool. And the first is that we have a really robust research department. So we're tracking. The first thing is to get the data. Part of the fight is knowing what is going on. And so our research department is tracking cases. We've been doing this for a while. We know what those cases have been from 1973 through the end of Roe. And we are continuing to see what the cases are since. So we're keeping our eye very clearly on that. Our policy department is working with legislatures in the state with electeds to figure out how best to end pregnancy criminalization. And the fact is, you know, we talked about it earlier. New York and California have put in several protections. Maryland has protections against both fetal personhood and pregnancy criminalization. And the fact is that there are carve outs all over the country that say that you cannot criminalize someone for the choices that they make about their own pregnancies during their own pregnancies. You can't use those acts to prosecute people. So that's true already in Ohio and Wisconsin. And our hope is that our policy department will help other states legislate and put into statute those laws in other places. And I'm thinking about how to create a real robust constitutional theory to fight back against fetal personhood. And I think that there is a path there through the Ninth Amendment, and we continue to hone and refine it, and as opportunities arise, we will continue to use it. So I think there's a lot of things to be happy about in the sense that no one is doing this lying down. And I think that we are also starting to understand that it's not a siloed process, that questions of reproductive justice, of being able to choose when you want to have a baby, if you don't want to have a baby, and to be able to raise that baby in health and safety, those are issues that cross lines, right? And even in our conversation today, the people who are impacted are grandmas. They are young folks. They are queer and trans folks. They are, you know, suburban folks. There's every single group of people in this country are impacted by pregnancy criminalization. And so if we can figure out a way to get to the root of the root here and to fight back on it, it's going to benefit people all over the country.

[Mark Joseph Stern]

Karen. Karen, thanks so much for joining us.

[Karen Thompson]

Thank you very much for having me.

[Mark Joseph Stern]

Karen Thompson is the legal director of Pregnancy Justice, a group that provides criminal defense to pregnant women and advocates for legal reforms to ensure that no one loses their rights because of pregnancy. That's all for this episode. Thanks so much for listening, and thank you so much for your letters and questions. You can keep in [e-mail] you can leave a comment on our show page. If you're listening via Spotify, you can rate and review us on Apple Podcasts or you can find [e-mail] amicuspodcast on this week's bonus episode for Amicus plus members, you'll hear the story of a home for pregnant teenagers that sounds like something from another era, but is actually happening today. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or visit slate.comamicusplus to get access wherever you listen. That episode is available for you to listen to right now. We'll see you there. Sara Burningham is Amicus's senior producer. Our producer is Patrick Ford. Thank you, Patrick, for all your work, and special thanks also to senior supervisor producer Joel Meyer for these past couple of weeks. Hilary Fry is Slate's editor in chief, Susan Matthews is executive editor, Mia Lobel is executive producer of Slate Podcasts, and Ben Richmond is our senior Director of operations. Dahlia will be back with another episode of Amicus next week, and I'm heading to the mountains. We'll have a grand reunion in September. Until next time. Take care.

[Podcast Advertiser/Host]

What do you think makes the perfect snack?

[Karen Thompson]

Hmm, it's gotta be when I'm really craving it and it's convenient.

[Podcast Advertiser/Host]

Could you be more specific?

[Karen Thompson]

When it's cravinient. Okay. Like a freshly baked cookie made with real butter, available right down the street at a.m. p.m. Or a savory breakfast sandwich I can grab in just a second at am pm.

[Podcast Advertiser/Host]

I'm seeing a pattern here.

[Karen Thompson]

Well, yeah, we're talking.

[Podcast Advertiser/Host]

Talking about what I crave, which is anything from ampm.

[Karen Thompson]

What more could you want?

[Mark Joseph Stern]

Stop by AMPM where the snacks and.

[Karen Thompson]

Drinks are perfectly craveable and convenient. That's cravenience. Ampm.

[Mark Joseph Stern]

Too much Good stuff. Hi, I'm Josh Levine. My podcast the Queen tells the story of Linda Taylor. She was a con artist, a kidnapper, and maybe even a murderer. She was also given the title the Welfare Queen, and her story was used by Ronald Reagan to justify slashing aid to the poor. Now it's time to hear her real story. Over the course of four episodes, you'll find out what was done to Linda Taylor, what she did to others, and what was done in her name. The great lesson of this for me is that people will come to their own conclusions based on what their prejudices are. Subscribe to the Queen on Apple Podcasts or wherever you're listening right now.