In Akers v. State (September Term 2022, No. 0925), the Appellate Court of Maryland will decide, among other issues, whether information about abortion, pregnancy ambivalence, and lack of prenatal care is relevant to determining how the death of an infant occurred. The question is important and novel as it implicates a woman’s reproductive rights in the context of a criminal case post–Dobbs v. Jackson Women’s Health Organization.
The facts of the case: The case arose out of Moira Akers’ unplanned pregnancy and death of her infant. Akers gave birth to an infant boy at her house. According to her, the child was stillborn. According to the State, the child was born alive and Ms. Akers suffocated her child. She was charged in the Circuit Court for Howard County with murder in the first degree, murder in the second degree, and child abuse resulting in death. Following a jury trial, Ms. Akers was convicted of second-degree murder and sentenced to 30 years imprisonment. The case is pending before the Appellate Court of Maryland.
The central disputed fact is whether Akers’ infant was still born or born alive. To that end, the State introduced Ms. Akers’ internet search history that indicated she had researched methods of ending a pregnancy, and Ms. Akers’ lack of prenatal health care. As widely reported in the press, the State also introduced the results of a controversial “lung flotation test” to purportedly demonstrate that the infant had breathed after birth. The issue this blog post addresses is whether the court erred in denying Ms. Akers’ motion in limine to preclude testimony about computer searches concerning abortion and testimony about a lack of pre-natal care. Other issues on appeal involve the admissibility of the lung test under Daubert, the voluntariness of Ms. Akers’ statement to law enforcement, and the sufficiency of the evidence regarding second-degree murder.
The Defense and State’s Arguments: At trial, Akers argued that her internet searches concerning abortions was not relevant to her intent once the baby was born. Akers also argued that testimony about abortion is inflammatory. On appeal, Akers challenges the trial court’s admission of that evidence. The State argues that the evidence was material and probative because it tended to establish Akers’ motive and intent, and provided insight into her state of mind at a crucial time: the period when she could have legally terminated the pregnancy but chose not to do so. The State argues that the evidence also supported their theory (1) that Akers did not want the baby and was in denial about the pregnancy (hence her decision not to obtain prenatal care), (2) that, when she knew she had the chance to terminate the pregnancy, she chose not to, and (3) that thereafter, she formulated a plan to kill Baby Akers when he was born. The introduction of the testimony, the State argues, was relevant evidence of Akers’ intent to end the life of this victim, not an effort to demonize Akers because she contemplated an abortion. From the lack of prenatal care, the jury could also infer that Ms. Akers did not intend to let the baby live, and thus saw no need to ensure his health prior to delivery.
The Amicus Brief: If/When/How: Lawyering for Reproductive Justice—a national legal non-profit organization—filed an amicus brief in support of Akers. The group’s mission is to transform the law and policy landscape so that all people have the power to determine if, when, and how to define, create, and sustain families with dignity. It writes that evidence that a defendant who lost a pregnancy or experienced a neonatal death either had or contemplated having an abortion, or did not obtain prenatal care—in short, behaved in ways that confound expectations grounded in gender stereotypes—is neither material to nor probative of whether that defendant would harm her newborn. People’s need to seek abortion is based not on feelings they have toward the fetus, but on the circumstances of the pregnancy and their understanding of their ability to care for a child once born. If/When/How also writes that abortion is a normal, common part of people’s reproductive experiences. Nearly a quarter of U.S. women will have an abortion by age 45. Abortion is also common among people who are already have children; fifty- nine percent of women in the United States who have abortions already have at least one child. If/When/How finally writes that such evidence is invariably so prejudicial that it should categorically outweigh any theoretical relevance. It urges the Appellate Court to reverse Akers’ conviction and to hold that it is irrelevant and unfairly prejudicial.
This case will be argued in January 2024. With the Appellate Court’s online streaming and webcast archives system, I strongly recommend for people to watch the argument and to be on the lookout for the opinion.