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Last Week Tonight’s John Oliver recently spent a segment on fetal personhood, which he defined as “the concept that a fetus is from conception a separate unique human with its own rights.” He quickly summarized a bunch of stories of the medical, legal, and justice systems treating women outrageously and he argued these are the results of the anti-abortion movement pursuing legal fetal personhood more aggressively since Dobbs overturned Roe v. Wade (2022).
Late night comedy isn’t known for its factual or intellectual rigor, and Oliver’s segment is no exception. He’s right to act outraged by most of the stories he discusses. Personally I find most of them outrageous too, and I agree that they reflect many significant shortcomings in the way our medical and legal institutions treat pregnant and postpartum women.
But these stories aren’t well explained by the concept of fetal personhood or the behavior and goals of the anti-abortion movement post-Dobbs. Oliver’s case suffers from three contradictions:
- Institutional overreach: Many of his examples are when someone (e.g. police, prosecutors, or hospital staff) stretched a law past what it was written to do, or in defiance of what the law explicitly says. And then someone else (e.g. a grand jury, an attorney general) pointed out the misapplication of the law, and the case was dropped. Abuse of laws isn’t a good explanation for what the laws actually allow, or for what the people who support the laws (as written) actually want.
- Time and place: Oliver tries to argue that, since Dobbs, the anti-abortion movement is fighting harder for fetal personhood, with more frequent and severe consequences. But many of Oliver’s examples either happened years before Dobbs or draw from data and stories from abortion rights states (or both).
- Stage: Oliver frames fetal personhood as a once-fringe idea the anti-abortion movement pushed into the mainstream. It’s true that fetal personhood is a controversial concept if we’re talking about the first trimester. But past viability, and especially in the third trimester, most Americans oppose abortion and view the fetus as a baby. This has been true for decades, and is still true today. Nearly all of Oliver’s examples fall into the post-viability range, including several stories about fetuses at term (36 weeks or later) and more about newborns (yes, already born). It’s not fringe to view a newborn as a person. It’s the norm.
Most examples John Oliver cites involve either abuse of the law, stories or data drawn years before Dobbs or from abortion rights states, or stories involving third trimester fetuses and even newborns.
Here’s a quick summary.
If you want way more details, read on.
Brittany Watts was charged with abuse of a corpse.
Institutional overreach: yes
Time and place: 2023 (after Dobbs), Ohio (anti-abortion state)
Stage: 21-22 weeks gestation (near viability)
Brittney Watts, a 33-year-old Black woman, says she went to the hospital multiple times after bleeding during her pregnancy. Watts returned home where she suffered a miscarriage. Now she’s being charged with abuse of a corpse.
Fetal Personhood: Last Week Tonight with John Oliver
Brittany Watts miscarried a 21- or 22-week child at home into a toilet. When she returned to the hospital no longer pregnant and without any fetal remains, a nurse called the police to locate the remains. Police ultimately found the child’s body stuck in the toilet. A prosecutor charged Watts with abuse of a corpse. When the case went to a grand jury they declined to indict, and Watts went on to file a lawsuit against Ohio for the ordeal. The lawsuit is ongoing.
This case is about the justice system having no earthly idea how to handle miscarriage, a problem I’ve talked about before: Selena Chandler-Scott miscarried her 19-week son alone, was found unconscious from blood loss, and was charged with two felonies (concealing a death and abandoning a body) for putting his remains in a dumpster. The Georgia district attorney dropped the charges, stating prosecution “is not legally sustainable and not in the interest of justice.”
Oliver argues “once the law recognizes a fetus as a separate victim, if you get pregnant, that same logic can quickly be weaponized against you in all sorts of ways.” But there’s no reason that has to be the case. Most states, including abortion rights states like California and Illinois, have fetal homicide statutes, which means they recognize fetuses as potential homicide victims when someone other than the mother kills or injures them. We can recognize fetuses as separate human beings and, in instances of violence, as separate victims, while also recognizing pregnancy is a pretty particular circumstance warranting its own considerations in the justice system.
[Read more – 6 reasons equal protection laws can’t be enforced justly]
Marshae Jones was charged with manslaughter after being shot.
Institutional overreach: yes
Time and place: 2018 (before Dobbs), Alabama (anti-abortion state)
Stage: 5 months gestation (near viability)
A woman from Alabama suffered a miscarriage after being shot. And now she’s being charged with manslaughter for the death of her unborn child.
Fetal Personhood: Last Week Tonight with John Oliver
Oliver is referring to Marshae Jones. Police reported that Jones started a fight with Ebony Jemison and continued to fight after Jemison tried to leave. A grand jury found Jemison shot at Jones in self-defense.
Even so, none of that justifies charging Jones with manslaughter after the shot killed her unborn daughter. As her attorneys’ motion to dismiss explained, the manslaughter charge requires someone intentionally caused a death. It would be hard to argue that Jones was intending her child to die by getting in a fight with another adult. Moreover, Alabama law explicitly exempts from homicide prosecutions any woman with respect to her unborn child. The DA’s office ultimately dropped charges against Jones.
Oliver tries to suggest that fetal personhood led to Marsahe Jones’ charges. In reality, in multiple ways, Alabama’s laws did not allow for these charges. It makes no sense to use stories of judicial overreach as evidence of what the law actually permits, or what supporters of the law actually want.
A hospital got a court to order Cherise Doyley to have a c-section.
Institutional overreach: no
Time and place: 2026 (after Dobbs), Florida (anti-abortion state),
Stage: Full-term gestation (Doyley was in active labor)
A bonkers story involving this woman. She was in the middle of a long delivery and was a professional doula, by the way. She’d had three prior C-sections and hoped to avoid a fourth, only to find the situation suddenly out of her hands. She was in her twelfth hour of labor in the hospital when Cherise Doyley suddenly found herself in front of a Florida judge from her hospital bed.
Fetal Personhood: Last Week Tonight with John Oliver
The hospital’s doctor, Erin Burnett, stated she didn’t think Doyley could have a successful vaginal birth, and that a long labor could increase risk of uterine rupture and therefore risk of death to both Doyley and her child.
Oliver tries to blame this story on fetal personhood, suggesting medical teams are trying to force c-sections out of concern for the wellbeing of the baby. No doubt that is a factor sometimes (worth noting that caring whether a full-term baby lives or dies is hardly a fringe anti-choice idea). But research is mixed on whether and when c-sections are associated with better maternal or fetal outcomes, so it makes little sense to say hospitals are pushing c-sections only for the sake of babies.
The more probable explanation is hospitals don’t want to deal with malpractice lawsuits (emphasis added):
Physicians cannot know for certain whether a cesarean will lead to better outcomes than a vaginal birth, but they have learned through medical-legal conferences and court proceedings that they are less likely to be sued for malpractice if the baby is born by cesarean.
Forced and Coerced Cesarean Sections in the United States
Obstetrics is one of the most sued subspecialties in the US. A national survey of OBGYNs found that doctors more worried about lawsuits were more likely to recommend c-sections.
Usually medical pressure to have a c-section doesn’t rise to the level of a court hearing over Zoom, but more commonly doctors will “fire a patient” or hospitals will refuse to admit a patient in the first place unless she consents to possible (or certain) c-section. Even if there’s no plan for a c-section, hospitals often have standard practices for vaginal births (e.g. labor inductions or epidurals) that can make births quicker and more predictable but can also increase the chances of a c-section.
If this were primarily about the anti-abortion movement and fetal personhood, we’d expect to see the same states that restrict abortion have higher c-section rates. That’s not what the data show.
Compare the CDC’s state c-section rates for 2024 (most recent year available) and Guttmacher’s classifications of state abortion laws (accessed August 2026). If abortion restrictions were a perfect predictor of state c-section rates, their r2 would be 1.0. If abortion restrictions were entirely unrelated to c-section rates, the r2 would be 0.0. Comparing the CDC and Guttmacher numbers got me r2 of 0.017. That’s the math way of saying there’s no real relationship between a state’s abortion laws and their c-section rates, which makes sense if this is more about avoiding malpractice lawsuits than advocating for fetal personhood. Hospitals in abortion rights states also don’t want to be sued.
Hospitals drug test pregnant women and their newborns.
Institutional overreach: debated
Time and place: 2018-2023 (mostly before Dobbs), national (includes abortion rights states)
Stage: Newborn
Unfortunately many hospitals drug test pregnant women and their newborns, often without their knowledge, and in at least 27 states they’re required by law to alert child welfare agencies about a positive test. … Referrals to law enforcement over alleged drug use during pregnancy are not remotely uncommon. One investigation found that in a six-year period, there were at least 70,000 such cases across 21 states.
Fetal Personhood: Last Week Tonight with John Oliver
As Oliver says this, the screen shows the headline “Tens of Thousands of Mothers Were Flagged to Police Over Flawed Drug Tests at Childbirth.” This is an investigation by the Marshall Project, and they explained their methodology here. The project gathered data about hospitals referring patients to law enforcement from the National Data Archive on Child Abuse and Neglect. Overall they got usable data from 21 states. I cross-referenced those states with Guttmacher’s classifications of state abortion laws, where 1 is the most restrictive classification and 7 is the most permissive. The states from the Marshall Project data covered the full range, with an average of exactly 3.5.
Oliver cites questionable hospital practices for referring pregnant and postpartum moms to law enforcement as evidence of an anti-abortion push for fetal personhood, but this problem is not specific to anti-abortion states. It’s a national issue.
The bigger issue with Oliver’s example of drug-testing newborns, though, is that they are newborns. They’re not fetuses. What does this entire category have to do with fetal personhood?
The defense of abortion often hinges on dehumanizing embryos and fetuses, insisting they aren’t people yet because [choose your reason] and therefore abortion is morally acceptable.
(Yes, many abortion advocates claim fetal personhood doesn’t matter, and the right to abortion is just about the right to refuse use of your body. There’s plenty of evidence suggesting bodily rights arguments don’t fully explain abortion advocacy.)
[Read more – McKenna West’s Case and the Limits of “Her Body, Her Choice.”]
Abortion rights largely rely on denying fetal personhood, while arguing this denial has no relationship to how we view newborns. Oliver blurs the lines a bit here, seeming to imply that fetal personhood is relevant to society’s reaction to newborns.
I agree with a lot of his outrage. I have plenty of opinions about drug-testing without consent, the justice system relying on the medical community to do investigative work, and the fraught power of the state to take children from their parents. The cases Oliver details actually aren’t even the stupidest ones, where hospitals contact child welfare services after women test positive for drugs the hospital gave them during labor (a documented phenomenon). You don’t have to convince me that there are serious, absurd problems here.
But these problems aren’t about the anti-abortion movement pushing society to recognize fetuses as human beings. These problems are about the way society reacts to drug use in our zeal to protect newborn babies. Watch how many of the following examples come back to that same issue (drug policy, not fetal personhood).
Katie ate an everything bagel and got investigated by the state.
Institutional overreach: no
Time and place: 2024 (after Dobbs), Alabama (anti-abortion state)
Stage: Newborn
Katie says the test results didn’t make sense. She had never taken any opiates or illicit drugs, but that day, before coming to the hospital, she did have an everything bagel. For nearly a month, Katie was only allowed supervised time with her children. … All of that over a bagel. It should not be possible for your life to get upended that badly just based on what you had for breakfast.
Fetal Personhood: Last Week Tonight with John Oliver
Katie is an Alabama woman who, in the spring of 2024, ate an everything bagel before giving birth and tested positive for opiates. The hospital coerced her into signing a safety plan under threat of losing custody of her children. A confirmatory lab test eventually came back negative for both Katie and her baby, but the state continued its investigation and Katie still got only monitored visits with her children until she and her husband hired a lawyer.
I wish I could tell you that somewhere in this process either the hospital or the state broke the law, but as far as I can tell that’s not the case. Alabama’s Department of Human Resources (DHR) states “infants who test positive for alcohol and/or drugs at birth due to the mother’s substance misuse, as determined by a medical professional, is considered abuse/neglect” (Alabama Administrative Code § 660-5-34-.02(3)(b)(9).) So it’s up to the doctors and nurses to determine if the mom’s drug use is the issue, and the regulations don’t require a confirmatory test.
Anyone should be outraged by this (at best) nonsensical, absurd bureaucracy or (at worst) cruel abuse of state power. There shouldn’t be policies so poorly written or implemented that they allow the state to take children from parents who have not, in fact, done anything wrong or illegal.
But in terms of Oliver’s overall arguments, it’s worth noting Alabama DHR specifically won’t accept reports of child abuse or neglect regarding unborn children (Alabama Administrative Code § 660-5-34-.04(2)). Oliver cites this case about the welfare of a born child – based on a law that explicitly doesn’t allow the same defense of unborn children – as evidence that fetal personhood is a major problem. His argument is incoherent.
Tamara Loertscher was held in jail while pregnant following a positive drug test.
Institutional overreach: no
Time and place: 2014 (before Dobbs), Wisconsin (anti-abortion state)
Stage: 14 weeks gestation (early second trimester)
Take what happened to this Wisconsin woman, who’d been using meth, but when she learned she was pregnant, immediately stopped. She voluntarily checked into a hospital seeking help for depression and other issues. While there, a urine test came back positive for drugs … In the end, after she refused court-ordered inpatient drug treatment, she was jailed for 18 days, including about 36 hours in solitary confinement.
Fetal Personhood: Last Week Tonight with John Oliver
In 2014, Tamara Loertscher admitted herself to a behavioral health unit at 14 weeks pregnant. She had a positive drug screening for multiple substances, and a hospital social worker reported her to the county. Loertscher refused to enter inpatient treatment. The county appointed a guardian ad litem to represent her 14-week fetus, but Loertscher herself didn’t have an attorney. A hearing ended with her sentenced to either comply with treatment or serve 30 days in jail. She chose jail, spent 18 days there (including 36 hours in solitary confinement), and negotiated her release through a public defender. Later that year she filed a federal civil rights lawsuit against Wisconsin.
In 2015 she gave birth to a healthy son, and shortly after she moved out of state. In 2017 a district court ruled the law the hospital relied on was unconstitutionally vague. A state attorney general appealed, and in 2018 the Seventh Circuit ruled the case moot because Loertscher no longer lived in Wisconsin. (Here, “mootness” is the idea that courts address only real, ongoing problems, not hypotheticals, and since Loertscher didn’t intend to return to Wisconsin, Wisconsin laws could not impact her in the future.) The law Loertscher was fighting remains on the books today.
In my opinion, this is Oliver’s strongest example. The events took place in an anti-abortion state, the institutions involved did not break or misapply existing law, and they applied these laws at a gestational age where the American public views fetal personhood as more controversial (14 weeks is the very beginning of the second trimester).
This case doesn’t rescue Oliver’s “since Dobbs” framing. Loertscher’s ordeal happened eight years before Dobbs. The case didn’t resolve in a way that strongly supported fetal personhood: a federal court called the law unconstitutionally vague, and the case ultimately died on a mootness technicality.
Absent particularly dangerous circumstances, jailing pregnant women is generally a bad idea (a topic we’ve addressed before), especially if the goal is to protect their fetuses. But one case from years before Dobbs doesn’t support the claim that fetal personhood is driving a new wave of prosecutions today.
Multiple women have been investigated following pregnancy loss.
Under fetal personhood laws, pregnancy loss can create yet another path into the criminal system, with miscarriages and stillbirths sometimes treated as suspicious. There are multiple stories of women being investigated or even charged with crimes, including murder, following a pregnancy loss.
Fetal Personhood: Last Week Tonight with John Oliver
When Oliver says this part, the screen shows the following headlines:
The first headline is referring to the Brittany Watts case Oliver already went over (see above).
Adora Perez pled guilty to “manslaughter of a fetus.”
Institutional overreach: yes
Time and place: 2017 (before Dobbs), California (abortion rights state)
Stage: 37-38 weeks gestation
The second headline is a case about Adora Perez, who had a stillbirth in California in 2017 (this source says the child came “two weeks early” suggesting 37-38 weeks). Perez tested positive for methamphetamine, was arrested, and pled guilty to “manslaughter of a fetus” – a charge that doesn’t exist in California law. The prosecutor, Keith Fagundes, is the only prosecutor in California in multiple decades to charge women who miscarry with murder. The case caused the California attorney general to issue “an admonition to prosecutors statewide: Don’t file charges against mothers who miscarry or deliver a stillbirth.” Fagundes subsequently dropped the charges against Perez in May 2022.
Chelsea Becker was charged with murder after her stillbirth.
Institutional overreach: yes
Time and place: 2019 (before Dobbs), California (abortion rights state)
Stage: 38 weeks gestation
The third headline is related: it’s also a Keith Fagundes case. In 2019 he charged Chelsea Becker with murder after she had a stillbirth and also tested positive for methamphetamine. In 2021 a judge dismissed the charge against Becker for lack of evidence. In 2022, California lawmakers updated their laws to emphasize the California AG’s admonition about not filing charges against mothers who miscarry; Governor Gavin Newsom signed the update into law. Also in 2022, Fagundes lost the DA primary to Sarah Hacker, the first woman to hold the job.
(In other words, two of the four headlines Oliver breezes past involve a single infamous California prosecutor who inspired the rest of the California government to push back against him before he lost his job.)
Amari Marsh was charged with murder after her premature birth.
Institutional overreach: yes
Time and place: 2023 (after Dobbs), South Carolina (anti-abortion state)
Stage: 21-22 week premature infant
The fourth headline is the story of Amari Marsh, which I’ve covered before. Marsh went into premature labor and gave birth to her infant daughter in a toilet. Her boyfriend called 911 and the dispatcher repeatedly told Marsh to take her daughter out of the toilet. She did not. When first responders arrived, the baby was still in the toilet and still had signs of life. They tried to perform lifesaving measures, but Marsh’s daughter did not survive. Marsh was arrested for murder, specifically for not taking her daughter out of the toilet at the urging of the dispatcher. A grand jury decided there wasn’t probable cause to proceed, and the case was dropped.
This case again blurs the line between fetal and neonatal personhood, since the prosecution was about failing to aid a newborn, not a fetus. For those who argue a 22-week fetus isn’t developed enough to be a person, it makes sense to similarly argue a 22-week premature infant isn’t a person either. (They usually won’t argue this, but the logic is there.)
But Oliver is primarily making bodily rights arguments. He concludes his segment (emphasis added):
Look, even planned, relatively low-risk pregnancies are obviously life- and body-altering experiences, and it does not seem radical to me to want to be able to control your own life and body throughout that experience.
Fetal Personhood: Last Week Tonight with John Oliver
What does controlling your own body have to do with failure to save a newborn? The newborn isn’t inside your body; are you still supposed to have a right to let the newborn die?
Cherie Mason went to prison for manslaughter after her stillbirth.
Institutional overreach: no
Time and place: 2016 (before Dobbs), Oklahoma (anti-abortion state)
Stage: 36 weeks gestation
[Cherie Mason] tested positive for drugs at the hospital after a stillbirth. She wound up taking a plea deal for manslaughter as a result, not because she thought she was guilty, but because, in her words, “I knew the way that it works here in Oklahoma.” She not only got a twelve-year prison sentence, which took her away from her other children, she was also required to register with the state as a violent offender upon her release.
Fetal Personhood: Last Week Tonight with John Oliver
In 2016, Cherie Mason gave birth to a stillborn 36-week baby. The medical examiner found the baby’s death resulted from methamphetamine toxicity. Mason pled guilty to manslaughter and served 7 years of a 12-year sentence, after which she was granted a motion for early release.
Research finds that most of the general public (72%) supports criminal charges for mothers if their newborns show signs of drug or alcohol withdrawal. We can expect a higher percentage would support criminal charges if, instead of a living child struggling with effects of drugs, the child is stillborn. This perspective isn’t limited to people who view embryos and early fetuses as children; most people view 36-week fetuses as babies, and react accordingly.
That said, a systemic review found that punitive legal responses to prenatal drug use aren’t associated with better health outcomes for mom or baby, and in some cases are associated with worse outcomes. Specifically, punitive laws are associated with less prenatal care, lower use of medication treatment for opioid use disorder, and higher rates of neonatal drug withdrawal syndrome.
Here again, I agree with Oliver that cases like these are awful, and a misapplication of the justice system. But he missteps when he tries to paint this as an outcropping of the anti-abortion movement pushing for recognition of fetal personhood. These cases are about how the public understands and reacts to drug use, especially when babies are involved. And the vast majority of people, including most pro-choice people, don’t consider a 36-week fetus a “potential” baby. They recognize that child as an actual, existing-right-now baby.
Alabama said IVF embryos are children.
Institutional overreach: no
Time and place: 2024 (after Dobbs), Alabama (anti-abortion state)
Stage: embryonic (early first trimester)
This morning, a first-of-its-kind decision by the Alabama Supreme Court that could put families’ access to fertility treatments in the post-Roe era at risk. The court determining frozen embryos qualify as people under its state law, ruling unborn children are children without exception based on developmental stage.
Fetal Personhood: Last Week Tonight with John Oliver
Based on the three criteria we’ve been checking (institutional overreach, time and place, and gestation), this would appear to be one (of few) reasonable cases for Oliver’s fetal personhood thesis.
It isn’t, however, because his segment simply misrepresents what the Alabama court case was about, and what the court ruled. We’ve covered this specific story before.
The conventional wisdom is about the same as what Oliver suggests here: Alabama was working against IVF couples across its state by ruling that IVF embryos are children under state law. This ruling would mean IVF clinics will have to shut down, because discarding or indefinitely freezing embryos would legally be considered killing or harming children.
Here’s what actually happened:
The plaintiffs were three couples who lost five embryos (in the case called Embryo A, Embryo B, Embryo C, Embryo D, and Baby Aysenne). The Center for Reproductive Medicine (the fertility clinic) kept a storage facility, described as a “cryogenic nursery,” to preserve the embryos while they awaited implantation. But the clinic failed to maintain basic security measures to such an extent that some random person entered and dropped the embryos, killing them.
The parents sued the clinic for wrongful death. The clinic argued the case should be dismissed because Alabama’s Wrongful Death of a Minor Act didn’t apply. The Alabama Supreme Court ruled in favor of the parents, reasoning that the Wrongful Death of a Minor Act had already been applied to unborn children in other cases going back at least 10 years (note: again before Dobbs). The only difference here was that these embryos were conceived via IVF, and the Court didn’t see why that should mean excluding them.
In their ruling, the court explicitly declined to argue that this case addresses the ethical status of IVF embryos, how the US Constitution’s 14th amendment would apply, or other public policy implications. And in a concurring opinion, two of the justices (Shaw and Stewart) emphasized that this case is only about civil wrongful-death law, and the use of “person” in this ruling doesn’t have to line up with Alabama’s criminal-homicide definition of “person.”
In other words, the court didn’t rule that embryos are people under all state laws, and didn’t suggest that IVF clinics should be illegal. It more narrowly ruled that IVF parents can sue for wrongful death if the clinics don’t sufficiently safeguard their embryos, based on the way the state had been applying existing law for many years before Dobbs.
Don’t look to late night comedy for news.
Most of Oliver’s stories involved real injustices. Few of them are well explained by alleged dangers of fetal personhood. When you subtract abuses of the law, society’s protectiveness of full-term or already born babies, and rulings Oliver simply misrepresented, there’s almost nothing left in this segment that connects his complaints to the anti-abortion movement.
And that’s unsurprising. John Oliver is a comedian with obvious political predispositions. He’s not trying to objectively evaluate evidence, or even make a coherent case about fetal personhood, and frankly no one should expect him to. If you watch him to get a laugh, or to see your worldview reflected in succinct, amusing ways, that makes sense. But if you get your news from comedy shows, expect you won’t know what’s really going on.
You asked us to weigh in, so we did the homework first. Help us keep responding with substance instead of soundbites. Support our work.
