"Punished For Their Pregnancies"

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

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.

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    • Use of outdated “lung float test” to allege live birth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)

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)

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

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.