In Akers v. State (September Term 2022, No. 0925) (unreported), Moira Akers searched the Internet for information about aborting her pregnancy. Akers’ pregnancy was in the first trimester, and she was within her rights to investigate her options to end it. She chose to continue the pregnancy. Still, her cell phone kept a digital record of her search history. Following the death of her newborn—which she maintained was stillborn during a home birth—the police seized her phone and reviewed her search history. At her trial for the first-degree murder of her infant, the prosecutor offered Akers’ search history as proof of her intent to kill the newborn infant. Akers objected, arguing that her questions about her right to lawfully terminate the pregnancy did not generate an inference of an intent to kill a newborn child at birth. In a case of first impression, the Appellate Court of Maryland (ACM) held that Akers’ Internet searches for abortion information made it more likely that she intended to kill her newborn child. The ACM cautioned that its holding “should be read narrowly, and in strict accordance with the specific facts of this case.” Still, the ACM’s decision implicates important questions about a woman’s reproductive rights in the context of a criminal case after 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 was 37 years old, married, with two children. She gave birth to an infant boy at her house. She suffered vaginal bleeding and a fire/rescue squad responded. She denied being pregnant. At the hospital, Akers disclosed that she had been pregnant and gave birth to a stillborn infant. Akers explained that she put the stillborn child in a Ziploc bag and left it in a closet. Akers described symptoms leading up to the birth that were consistent with carrying a stillborn infant. The medical examiner utilized a controversial technique (whether the infant’s lungs floated) and concluded the child was born alive. The defense retained a pathologist who determined the infant was stillborn. The State charged Akers 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, Akers was convicted of second-degree murder and sentenced to 30 years of imprisonment.
Disputed Issues: The case turned on whether Akers gave birth to a living infant, and if so, whether she intended to kill the child. On the question of intent, the State introduced Akers’ Internet search history that showed she had researched methods of ending a pregnancy at home. The searches included, among others, the following terms: “over-the-counter pills that cause miscarriage,” “miscarriage at 7 weeks” or “rue tea for abortion.” There was no dispute that these searches occurred during the time frame where Akers could legally secure an abortion in Maryland. Still, does a woman’s Internet search regarding a lawful abortion make it more likely that she killed the newborn at birth? The ACM said “yes.” It applied a de novo standard of review on the relevance question and agreed with the trial court. But even if the search history has some minimal probative value, is it substantially outweighed by the danger of unfair prejudice or confusion of the issues? The ACM said “no.” Applying the abuse of discretion standard, the ACM deferred to the trial court’s assessment of undue prejudice. Relatedly, the ACM found that (1) the trial court did not abuse its discretion in admitting the controversial lung test under Daubert, which purportedly demonstrated that the infant had breathed after birth, (2) that Akers’ statement to law enforcement was voluntary, and (3) that the evidence was sufficient to sustain a conviction on second-degree murder.
The Defense and State’s Arguments: At trial, Akers argued that her Internet searches concerning abortion were not relevant to her intent when the baby was born. Akers also argued that testimony about abortion is inflammatory. The State argued 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 argued that the evidence also supported their theory that (1) Akers did not want the baby, (2) when she knew she had the chance to terminate the pregnancy, she chose not to, and (3) thereafter, she formulated a plan to kill Baby Akers when he was born. The introduction of the testimony, the State argued, was relevant evidence of Akers’ intent to end the life of this victim, not an effort to demonize Akers because she contemplated an abortion.
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 argued that evidence that a defendant who lost a pregnancy or experienced a neonatal death either had or contemplated having an abortion, (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 argued 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; 59% of women in the U.S. who have abortions already have at least one child. If/When/How also argued that such evidence is invariably so prejudicial that it should categorically outweigh any theoretical relevance. It urged the ACM to reverse Akers’ conviction and to hold that irrelevant and unfairly prejudicial.
The ACM’s rationale: The ACM observed that relevance is “a very low bar to meet.” It found that Akers’ Internet searches showed that “at one point, she considered inducing an abortion without the assistance of a medical professional [which] made it more probable that she intended to prevent others from discovering the existence of the pregnancy or the child at any point. This in turn permits an inference that she would be inclined to harm or cause the death of the child to keep the pregnancy and birth secret.” To the ACM, the Internet search for “surreptitiously inducing a miscarriage[,]” with the “challenged evidence involv[ing] a self-induced abortion not under the direction of a medical professional” coupled with Akers’ intent and credibility concerns cleared the low bar for relevancy. Regarding the danger of unfair prejudice, the ACM recognized that “abortion and other forms of reproductive healthcare carry with them the risk of unfair prejudice[.]” However, the ACM found, that, under the abuse of discretion standard, the trial court did not err in admitting the evidence. Other evidence in the record, admitted without objection, already supported that Akers sought abortion services and therefore, the Internet searches were less prejudicial. The trial court also employed voir dire questions to guard against improper bias in the jury.
Although the ACM did not publish Akers, the questions it answered about the implications of one woman’s questions about an abortion are of public interest and importance. The citation to unreported opinions in Maryland courts is governed by Maryland Rule 1-104. Effective July 1, 2023, parties are now permitted in certain circumstances to cite unreported opinions of the Appellate Court of Maryland.